IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40835

United States of America

Plaintiff-Appellee,

versus

Eric Del Barrio,

also known as Andy Lopez

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Eric Del Barrio pled guilty to possession with the intent to

distribute approximately 32.75 kilograms of marijuana in violation

of 21 U.S.C. § 841(b)(1)(D). He was sentenced to 50 months

imprisonment and three years supervised release. His supervised

release was revoked after he violated the release terms, and he was

sentenced to another three-yea r term of imprisonment, which was

suspended in favor of a 120-day period of confinement in a

community corrections facility. Subsequently, Del Barrio again

violated the terms of his supervised release and was sentenced to United States Court of Appeals

Fifth Circuit 

## F I L E D

September 21, 2005

Charles R. Fulbruge III

Clerk1 The parties do not dispute that the underlying felony in this case is a

Class D felony. The maximum term of imprisonment for a class D felon whose

term of supervised release is revoked is two years. 18 U.S.C. § 3583(e)(3)

(2000).

2 the statutory maximum term of two years imprisonment under 18

U.S.C. § 3583(e)(3). 1

On appeal, Del Barrio contends, for the first time, that the

sentence imposed for violating the terms of his supervised release

exceeded the statutory maximum two-year sentence when the 120-day

period of confinement in a community corrections facility, which he

contends is a term of imprisonment, is taken into account. We

reject his contention and affirm his sentence.

I

On January 20, 1999, Del Barrio pled guilty to possession with

intent to distribute approximately 32.75 kilograms of marijuana in

violation of 21 U.S.C. § 841(b)(1)(D). Del Barrio was sentenced to

50 months imprisonment, to be followed by three years of supervised

release. After serving his prison sentence, Del Barrio began his

term of supervised release on September 10, 2001. One year later,

in September 2002, the district court found that Del Barrio

violated the terms of his supervised release and sentenced him to

three years imprisonment, which was suspended in favor of a 120-day

period of confinement in a community corrections facility. Del

Barrio contends that such confinement constitutes “imprisonment,”

which, when combined with the subsequent two-year term of2 In United States v. Jackson , this Court held that the two-year maximum

term of imprisonment under § 3586(e)(3) applies on a cumulative basis, not

separately to each time supervised release is revoked. 329 F.3d 406, 407-08

(5th Cir. 2003).

3 incarceration, exceeds the statutory maximum in 1 8 U.S.C. §

3583(e)(3).

In the district court’s written judgment, the court included

the community-correction-facility term under the heading of

“Imprisonment,” and not under the headings of “Supervised Release,”

“Standard Conditions of Supervised Release,” or “Additional

Supervised Release Terms.” The court did note, however, that the

120-day confinement was imposed as a “special c ondition of

supervised release.” During the proceeding, the judge stated:

I am going to revoke your Supervised Release Term. I am

going to commit you to the custody of the Bureau of

Prisons for a period of three years. I am going to

suspend the execution of that Order of confinement and

cause you to be confined in a halfway house 120 days and

to be continued on Supervised Release Term unti l your

expiration date.

In May 2004, Del Barrio again was in front of the district

court regarding a violation of his supervised release term. The

district court revoked Del Barrio’s supervised release and ordered

him imprisoned for a term of 24 months. 2 Del Barrio did not object

to this sentence, and he timely filed this appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II3 See, e.g.

, United States v. Ferguson , 369 F.3d 847, 849 (5th Cir.

2004). In Ferguson , the defendant argued that the term of incarceration

imposed by the court exceeded the statutory maximum when combined with the

term of home detention served during his supervised release. Id. at 848. The

court ruled that, despite Ferguson’s failure to object to the term of his

incarceration, his claim should be reviewed de novo

. Id. at 849 n.2.

4 Id. at 849; see also United States v. Sias , 227 F.3d 244, 246 (5th Cir.

2000) (explaining that “because a sentence which exceeds the statutory maximum

is an illegal sentence and therefore constitutes plain error, our review of

the issue presented in this appeal will be de novo”).

4 A defendant’s failure to contempor aneously object to an

alleged error generally result s in plain error review. 3 However,

we review de novo a sentence that allegedly exceeds the statutory

maximum term. 4

Del Barrio contends that the district court erred when it

sentenced him to a term of imprisonment in excess of the statutory

maximum two years. Del Barrio’s arguments center around the

district court’s intent. First, Del Barrio argues that the

district court must have intended the 120-day confinement at a

community corrections facility to be imprisonment because the court

lacked the authority to i mpose such a condition as a term of

supervised release. Second, Del Barrio argues that because the

district court was required to state in open court the imposition

of any special condition of supervised release, the fact that he

did not do so indicates that he considered the 120-day confinement

in a community corrections facility as a term of imprisonment.

A

Del Barrio’s cont ention that the district court lacked

authority to impose confinement in a community corrections facility5 18 U.S.C. § 3583 (2000).

6 Id. § 3583(d).

7 18 U.S.C. § 3563(b)(11) (2000).

8 See United States v. Griner , 358 F.3d 979, 981-82 (8th Cir. 2004);

United States v. Bahe , 201 F.3d 1124, 1136 (9th Cir. 2000).

5 as a condition of supervised release is without merit. Section

3583 governs the district court’s discretion in imposing terms of

a supervised release following imprisonment. 5 Under § 3583(d),

subject to certain considerations, the district court may impose

“any condition set forth as a discretionary condition of probation

in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20),

and any other conditi on it considers to be appropriate.” 6

Conspicuously abs ent is § 3563(b)(11), which provides that the

district court, at its discretion, may require that the defendant

“reside at, or participate in the program of, a community

corrections facility (inc luding a facility maintained or under

contract to the Bureau of Prisons) for all or part of the term of

probation.” 7

Del Barrio argues that we adopt a plain language reading of

the statute : since § 3563(b)(11) is not listed in § 3583(d), the

district court lacked aut hority to impose confinement in a

community corrections facility as a condition of supervised

release; thus, such imposition must be a term of “imprisonment.”

In accordance with the Eighth and Ninth Circuits, 8 we hold that the9 See Sentencing Reform Act of 1984, chs. 227-228, Pub. L. 98-473, Title

II, 98 Stat. 1993 (1984) (codified as amended 18 U.S.C. §§ 3551-3742 (2000)).

10 See 18 U.S.C. § 3563(b)(12) (1984).

11 See Mandatory Victims Restitution Act of 1996, Pub. L. 103-132, Title

II, subtitle A, 110 Stat. 1227 (1996) (codified as 18 U.S.C. § 3663A, 3613A).

12 See Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132,

110 Stat. 1214 (Apr. 24, 1996) (providing that § 3563(b) be amended “by

striking paragraph (2)” and “redesignating paragraphs (3) through (22) as

6 district court has authority to impose confinement in a community

corrections facility as a condition of a supervised release term.

Given the lengthy treatment of the legislative history behind

§ 3563 and § 3583 by the Ninth Circuit in United States v. Bahe

, we

provide only a streamlined version. In 1984, Congress enacted §

3583(d) as part of the Sentencing Reform Act of 1984, set forth in

Title II of the Comprehensive Crime Control Act of 1984. 9 Section

3583(d) unambiguously gave courts the discretion to impose

confinement in a community corrections facility as a discretionary

condition of supervised release; as it does today, § 3583(d)

referenced § 3563(b)(12), which is the same as the current version

of § 3563(b)(11). 10

Twelve years later, Congress made the clerical error that is

at issue in this appeal. Congress enacted the Mandatory Victims

Restitution Act of 1996 (MVRA), a portion of the Antiterrorism and

Effective Death Penalty Act of 1996. 11 The MVRA amended § 3563(b);

specifically, the MVRA deleted § 3563(b)(2), which authorized the

imposition of a fine as a discretionary condition of supervised

r elease, and renumbered the remaining subsections. 1 2 Thisparagraphs (2) through (21), respectively”).

13 Bahe , 201 F.3d at 1131-32 (internal citations omitted); see also

Griner , 358 F.3d at 981-82 (finding the same and concluding that the

amendments to § 3563 were “essentially a bookkeeping change”).

14 Taylor v. United States , 495 U.S. 575, 589-90 (1990).

7 renumbering caused § 3563(b)( 1 2) to become § 3563(b)(11)––the

numerical subsection omitted from § 3583(d), which remains

unchanged.

Given the ambiguity, a resort to legislative history is

appropriate. We agree with the findings of the Eighth and Ninth

Circuits that Congress did not intend to effectuate a change in the

terms of supervised release within the district court’s discretion.

As the Ninth Circuit notes:

Nothing in the text or legislative history of the

MVRA or § 3563 suggests that Congress intended to alter

the conditions that a sentencing court may attach to a

term of supervised release under § 3583(d). Nor is there

any indicatio n that Congress ever intended the MVRA to

exclude or e liminate a sentencing court’s authority to

confine a defendant to a community treatment center as a

condition of his or her supervised release. Although the

legislative history of the MVRA is extensive, it is

utterly silent as to its affect on § 3583(d). Under

these circumstances, we decline to interpret this silence

as an indication of congressional intent to amend the law

on conditions of supervised release. 13

Thus, we conclude that the absence of § 3563(b)(11) from § 3583 was

“an inadvertent casualty of [the] complex drafting process.” 14 We

reject Del Barrio’s ar gument that the district court lacked

authority to impose the 120-day confinement in a comm unity15 See United States v. Martinez , 250 F.3d 941, 942 (5th Cir. 2001).

16 Id. ( citing United States v. A-Abras , 185 F.3d 26, 29 (2d Cir. 1999);

F ED

. R. C RIM

. P. 43(a) (“The defendant shall be present . . . at the imposition

of sentence . . . .”)).

17 See United States v. De La Pena-Juraez , 214 F.3d 594, 601 (5th Cir.

2000).

8 corrections facilit y as a condition of Del Barrio’s supervised

release.

B

Given our holding that the di strict court had authority to

i mpose confinement in a community corrections facility as a

condition of supervised release, we now must turn to Del Barrio’s

contention that the district court intended the 120-day confinement

in this case to be a term of imprisonment rather than a condition

of supervised release.

Del Barrio is correct that our case law holds that when there

is a conflict between a written sentence and an oral pronouncement,

the ora l pronouncement controls. 1 5 This is because a criminal

defendant has a constitutional right to be present at sentencing. 16

However, and fatal to Del Barrio’ s case, if there is merely an

ambiguity between the two sentences, the entire record must be

examined to determine the district court’s true intent. 17

United States v. Martinez is illustrative. There, the

district court sentenced the defendant to a 36- month term of

imprisonment, a four-year term of supervised release, and, in lieu18 Martinez , 250 F.3d at 941-42.

19 Id. at 942.

20 Id.

21 Id.

9 of a fine, ordered him to serve 100 hours of community service. 1 8

This court, on review of the record, found that “[n]o other

conditions of supervised release were mentioned.” 19 The subsequent

written order, however, contained a special condition that required

the defendant to submit to various drug rehabilitation programs and

frequent drug tests. 20 In light of the square conflict between the

oral pronouncement and the written sentence, this Court vacated the

defendant’s sentence and remanded the case for the court to amend

its written judgment to conform to its oral sentence. 21

Her e, there is, at best, an ambiguity between the two

sentences. During sentencing, the district court specifically

mentioned the 120-day term of confinement in a community

corrections facility on several occasions. In fact, Del Barrio, in

his brief, references each of these statements. For instance, the

district court stated:

I am going to revoke your Supervised Release Term. I am

going to commit you to the custody of the Bureau of

Prisons for a period of three years. I am going to

suspend the execution of that order of confinement and

cause you to be confined in a halfway house 120 days and

to be continued on Supervised Release Term unti l your

expiration date.22 De La Pena-Juraez , 214 F.3d at 601.

10 Arguably, the court’s written order creates some ambiguity. Under

the sec tion marked “Imprisonment,” the court imposed the threeyear sentence and stated that the sentence was suspended in favor

of 120-days in a community corrections facility “as a special

condition of supervised release.” This seems to conflate the

special condition and the term of i mprisonment. Moreover, there

was no mention of the 120-days confinement in the sections marked

“Supervised Release,” “Standard Conditions of Supervision,” or

“Additional Supervised Release Terms.” As the written sentence

creates some ambiguity, we must examine the entire record to

determine whether the court intended the 120-days of confinement

a s a term of imprisonment or as a condition of supervise d

release. 22

Here, our examination of the record reveals that the court

considered th e 120-days of confinement as a condition of

supervised rele ase, not as a term of imprisonment. First, the

court noted that although Del Barri o should be imprisoned for

three years, the court “will suspend the execution of that period

of imprisonment and place him in a halfway ho use for 120 days.”

This statement suggests that the district court judge did not

consider Del Barrio’s 120-day confinement as a term of

imprisonment. In addition, a review of the record indicates that

the judge wou ld rather have sentenced Del Barrio to jail time,11

but, given the recommendation of the probation officer, the judge

opted instead for the 120-day confi nement in a community

corrections facility. For instance, the court stated:

[The probation officer] is recommending 120 days. She

shouldn’t have done that. She should not have done that.

And much less it is within my province. However, I will

defer to those types of things because it is customary.

And certainly she has already indicated that apparently

she feels she can work with this fellow. I don’t agree

with that.

But I will tell you what I will do. You talk to

your client. He owes us three years. I will send him

away for three years. I will suspend the execution of

that period of im prisonment and place him in a halfway

house for 120 days. However, until and when this

Supervised Rele ase Term is over, he spits on the

sidewalk, we are not going to get any more hearings. He

is going away for three years.

Finally, all of this is consist ent with the written order, which

provided that the 120-days in a community corrections facility was

“a special condition of supervised release.”

Lastly, relying o n the Bureau of Prisons’ J udicial Resource

Guide to the Federal Bureau of Prisons 2000 memo, Del Barrio

argues that the district court had authority to impose the 120-day

confinement as a term of im p risonment. Del Barrio fails to cite

any case law suggesting that time s erved in a community

corrections facility is equivalent to time served in imprisonment.

Given the overwhelming evidence that the court considered the 120-

day confinement as a condition of Del Barrio’s supervised release

term, we decline to consider this issue.

III

Accordingly, Del Barrio’s sentence is AFFIRMED.12