# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-40534 Summary Calendar

____________ United States of America, Plaintiff—Appellee ,

versus Roel Longoria, Defendant—Appellant

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______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 7:22-CR-303-2

______________________________ Before King, Haynes, and Graves, Circuit Judges

. Per Curiam: * Roel Longoria appeals the sentence imposed following his guilty plea conviction for conspiracy to possess wi th intent to distribute 500 grams or more of a substance containing a dete ctable amount of methamphetamine. He argues that there is a conflict between the oral pronouncement of sentence and the written judgment su ch that two special conditions of

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED June 7, 2024 Lyle W. Cayce Clerk Case: 23-40534 Document: 47-1 Page: 1 Date Filed: 06/07/2024No. 23-40534

2 supervised release requiring his partic ipation in an alcohol abuse treatment program and abstention from the use or possession of alcohol must be excised. The Government argues that Longoria has waived review of this issue by intentionally relinquishing his rights. See United States v. Arviso-Mata , 442 F.3d 382, 384 (5th Cir. 2006). Longor ia arguably waived any challenge to the pronouncement of his supervised release conditions by asserting that he was familiar with the special conditions bein g referenced and rejecting the district court’s explicit offer to recite the conditions in open court. See United States v. Dodson , 288 F.3d 153, 160 (5th Cir. 2002); United States v. Musquiz , 45 F.3d 927, 931 (5th Cir. 1995). However, out of an abundance of caution, we will address the issue. We review a condition of supervisio n for plain error if the defendant could have challenged it in the district court and did not, but apply an abuseof-discretion standard if he had no such opportunity. See United States v. Martinez , 987 F.3d 432, 434-35 (5th Cir. 2021). It is unnecessary to determine the appropriate standard as Longoria’s argument fails under either. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008) (concluding that the standard of revi ew need not be resolved because there was no error under any standard). Defendants “ha[ve] a constituti onal right to be present at sentencing”; therefore, a district co urt must pronounce any discretionary conditions of supervision when imposing sentence. United States v. Vega , 332 F.3d 849, 852 (5th Cir. 2003); see United States v. Diggles , 957 F.3d 551, 557- 58 (5th Cir. 2020) (en banc). “I f the written judgment broadens the restrictions or requirements of supervised release from an oral pronouncement,” a conflict exists, in which case the judgment should be amended to conform to the pronouncement. United States v. Mireles , 471 Case: 23-40534 Document: 47-1 Page: 2 Date Filed: 06/07/2024No. 23-40534

3 F.3d 551, 557-58 (5th Cir. 2006) (quote at 558). There is no conflict, however, if a discrepancy between th e judgment and the oral sentence is “merely an ambiguity that can be resolved by reviewing the rest of the record.” Id. at 558; see also United States v. Tanner , 984 F.3d 454, 456 (5th Cir. 2021) (stating that where an ambi guity exists, we look to the district court’s intent to determine the sentence). According to the record, Longoria had sporadically used marijuana since the age of 18 and ha d abused alcohol since the age of 19, to the point that he was ordered to participate in Alcoholics Anonymous as a condition of parole in a previous conviction. When imposing the conditions of supervision, the district court specific ally referenced Longoria’s history of alcohol abuse when it ordered that he participate in a substance abuse testing and treatment program and abstain from substance abuse. The written judgment merely clarified an ambiguit y, as the record supports the conclusion that the district court intended to include alcohol-related restrictions when it orally imposed sp ecial conditions requ iring the treatment for substance abuse. See Diggles , 957 F.3d at 557-59; Tanner , 984 F.3d at 457; Mireles , 471 F.3d at 558. The judgment of the district court is AFFIRMED

. Case: 23-40534 Document: 47-1 Page: 3 Date Filed: 06/07/2024