UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. WILLIAM YOUNG, Defendant - Appellant. No. 16-3077 (D.C. No. 2:03-CR-20116-KHV-JPO-1) (D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , MATHESON, and BACHARACH , Circuit Judges.
William Young appeals the district cour t’s judgment revoking his supervised release and sentencing him to eight months of incarceration and an additional period of supervised release. Exercising jurisdicti on under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm in part, reverse in part , and remand with instructions to issue an

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value cons istent with Fed. R. Ap p. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 31, 2016
Elisabeth A. Shumaker Clerk of Court-2- amended judgment consistent with this order.
I. BACKGROUND After being indicted in 2003, Mr. Young pled guilty to a single count of conspiring to distribute and possess with the intent to di stribute five or more grams of cocaine base in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b )(1)(B)(iii); 846. In 2005, the United States District Court for the District of Kansas imposed a se ntence of 151 months of imprisonment followed by four years of s upervised release. The court ordered both standard and special conditions on Mr. Young’s supervised release. 1 Mr. Young was released from prison and began his supervised release in April 2015. In February 2016, the pr obation office filed a petition in the district court to revoke Mr. Young’s supervised releas e. According to the petition, Mr. Young had used illegal drugs, failed to check in w ith his probation officer, and sk ipped treatment programs in which he was enrolled. The district court held a hearing in March 2016 and revoked Mr. Young’s supervised release. It sent enced him to eight months of imprisonment and three more years of supervised release. At this hearing, Mr. Young, through couns el, stipulated to the facts underlying the alleged violations and agre ed the court could impose be tween 8 and 14 months in

1 Mr. Young appealed his sentence, but the plea agreement he signed contained a waiver of his appellate rights. We enforc ed the waiver and dismissed his appeal. United States v. Young , 206 F. App’x 779 (10th Cir. 2006) (unpublished).-3- custody. He asked the court not to impos e any term of imprisonment, however, and instead to continue the heari ng, order him to a halfway hous e, and reassess his progress after a few months in a structured environm ent. The Government opposed this request and argued Mr. Young should be incarcerated. Based on Mr. Young’s numerous positive drug tests, the district court concluded it was “required to revoke and impose a sent ence that includes a term of imprisonment” unless it found there were “appropriate subs tance abuse programs” available for Mr. Young or that his “current or past participa tion in programs” justif ied another course, in which case it could “grant[] an exception from the mandatory revocation and imprisonment.” ROA Vol. 2 at 15. 2
The court decided Mr. You ng was “not entitled to an exemption” and that his violations “pretty much sp [oke] for themselves.” Id. After Mr. Young had a chance to allocute, the court expressed its “wish that [Mr. Young] had stuck with” his treatment
program. Id. at 21. The district court stated that “eight months in custody would be appropriate” because Mr. Youn g had not shown a ny reason why he sh ould be exempt from the revocation requirement. Id. at 23. The court selected eight months from the non-binding policy statements of the United St ates Sentencing Guide lines (“Guidelines”),

2 See 18 U.S.C. § 3583(g)(4) (requiring revo cation of supervised release and imposition of a term of impr isonment “[i]f the de fendant . . . tests positive for illegal controlled substances more than 3 times over the course of 1 year”); see also 18 U.S.C. § 3583(d) (“The court shall c onsider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation in such programs, warrants an exception . . . from th e rule of section 3583(g) . . . .”).-4- which provided for a custody range of 8 to 14 months. In addition to the eight-month prison te rm, the court ordered three years of supervised release and specified that “all of the conditions th at were previously imposed” would again apply. Id. ; see also id. at 24. The court asked, “Is there any comment, counsel, on the proposed sentence?” Id. at 23. Mr. Young’s lawyer an swered, “No, Your Honor.” Id. But when the district court entered its written judgment almost two weeks later, the terms of Mr. Young’s new pe riod of supervised release were not identical to the terms previously imposed. Mr. Yo ung complains the written judg ment added an entirely new condition requiring him to “reside at a resi dential re-entry center program, in the community corrections componen t allowing for work release, for up to 120 days, at the direction of the U.S. Probation Officer.” ROA Vol. 1 at 34. He also argues the written judgment materially altered another condition: whereas the court previously required Mr. Young to “participate in an approv ed program for me ntal health,” id. at 21, the new judgment ordered him to “participate as di rected in a cognitive behavioral program,” id.
at 34. Mr. Young filed a timely notice of appeal. See Fed. App. R. 4(b)(1)(A)(i).
II. DISCUSSION Mr. Young raises two issues on appeal. First, he argues the district court committed plain error during th e March 2016 revocation hearing because it “did not consider the § 3553(a) factors and gave no explanation whatsoever for the given-5- sentence.” Aplt. Br. at 9. We reject his ar gument and affirm because the district court did not err, plainly or otherwise. Second, Mr. Young argues we must remand for the district court to conform its written judgment to its oral sentence concer ning his supervised release conditions. The Government agrees with Mr. Yo ung that the district court’s oral pronouncement controls. So do we, and we remand for co rrection of the judgment.
A. Consideration of § 3553(a) Factors
1. Legal Background Section 3583 provides that a court may re voke a term of supervised release after considering certain factor s listed in § 3553(a). See 18 U.S.C. § 3583(e)(3). 3 “The sentencing court, however, is not required to c onsider individually each factor listed in § 3553(a), nor is it required to recite any ma gic words to show us that it fulfilled its responsibility to be mindful of the factors th at Congress has instructed it to consider before issuing a sentence.” United States v. Cordova , 461 F.3d 1184, 1189 (10th Cir. 2006) (quotations omitted); see also United States v. Kelley , 359 F.3d 1302, 1305 (10th

3 Section 3583(e) requires consideration of a subset of the § 3553(a) factors. As we said in United States v. Cordova , the relevant factors in the revocation context include: “the nature and circumstances of th e offense; the history and characteristics of the defendant; the need for th e sentence imposed to afford adequate deterrence, protect the public, and provide the de fendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner; pertinent guidelines; pertinent policy stat ements; the need to avoid un wanted sentence disparities; and the need to provide restitution.” 461 F.3d 1184, 1188-89 (10th Cir. 2006) (quotations omitted).-6- Cir. 2004) (“[I]t is enou gh if the district court considers § 3553(a) en masse and states its reasons for imposing a given sentence.”). 4
2. Standard of Review Whether the district court failed to consid er the § 3553(a) factors is a question of procedural reasonableness. See United States v. Vigil , 696 F.3d 997, 1001 (10th Cir. 2012). If a defendant preser ves the issue, “we generally review the procedural reasonableness of that defendant’s senten ce using the familiar abuse-of-discretion standard of review.” United States v. Sanchez-Leon , 764 F.3d 1248, 1262 (10th Cir. 2014) (quotations omitted). Here, however, the parties agree that our review is for plain error because Mr. Young failed to object during the sentencing hearing. “Und er the plain error standard, [Mr. Young] must demonstrate: (1) an error, (2) that is pl ain, meaning clear or obvious under current law, (3) that affects substantia l rights, and (4) that seriously affects the fairness, integrity, or public repu tation of judicial proceedings.” United States v. Piper , No. 15-3288, 2016 WL 6211807, at *3 (10th Cir. Oct. 25, 2016).
3. Analysis Mr. Young asserts, “The district court ga ve no explanation, and no consideration to the relevant § 3553(a) factors, when it imposed the eight-month term of imprisonment

4 When imposing a sentence following revocation, district courts must also consider the policies articulated in Chapter 7 of the Guidelines, see Cordova , 461 F.3d at 1188, but we have no need to address the Guidelines here because Mr. Young argues on appeal only that the district court faile d to consider the § 3553(a) factors.-7- and three-year term of supervis ed release.” Aplt. Br. at 13. He argues “[t]he sentencing court must ‘say something that enables the appellate court to infer that [the district court] considered [the relevant factors].’” Id. (quoting United States v. Robertson , 648 F.3d 858, 860 (7th Cir. 2011)). The district court’ s failure to do so here, he argues, was plain

error. We disagree. The record clearly shows th e district court considered the § 3553(a) factors and provided sufficient reasoning for the sentence it imposed. The hearing transcript contradicts Mr. Young’s assertion that the court gave no explanation. It said: I do believe eight months in custo dy would be approp riate because you haven’t shown me any reason, based on your personal circumstances or anything else, why you’re entitled to an exception from the legal requirement that I revoke and senten ce up to a term of imprisonment. ROA Vol. 2 at 23. The court also describe d its familiarity with the treatment program Mr. Young had failed to complete and said it “really wish[ed] that [Mr. Young] had stuck with” the program and “had a better attitude about it” because it teaches participants skills for “cop[ing] with issues that come up in daily life” and about “taking ownership” of decisions. Id. at 21-23. Mr. Young’s track record in the program is part of “the history and characteristics of the defendant” under § 3553(a)(1 ). The district court thus considered this factor. Mr. Young also overlooks the district court’s considera tion of his work history, id. at 19, and his history of “anxiety, panic, [and] PTSD,” topics he raised during his allocution, id. at 17.-8- Further, the court’s statem ent that “we don’t have available substance abuse programs which would appropriately respond to your treatment needs,” id. at 15, demonstrates its consideration of the need “t o provide the defendant with . . . correctional treatment in the most effec tive manner” under § 3553(a)(2)(D). 5 “[W]e have made it quite clear that the se ntencing court is not required to consider individually each factor listed in § 35 53(a) before issuing a sentence.” Kelley , 359 F.3d at 1305. The district court did not make e xpress reference to the § 3553(a) factors, but we do not demand “that the district court recite any magic words,” id. (quotations omitted). Based on the record before us, we are confident the district court “fulfilled its responsibility to be mindful of the factors that Congress has instructed it to consider.” Id. Mr. Young has failed to show the district c ourt erred, let alone plainly so. We also note that, under the third element of the pl ain-error standard, M r. Young has not shown how the district court’s alleged failure to consider the § 3553(a) factors negatively affected his substantial rights because his eigh t-month sentence is, in his words, “at the lowest end of the guidelines range.” Aplt. B r. at 14. Finally, in affirming the district court’s decision on this point, we perceive no serious effect on “the fairness, integrity, or public reputation of judicial proceedings.” Piper , 2016 WL 6211 807, at *3.

5 The court’s explanation was not limited to the eight-month sentence. It also explained the additional term of supervised release, saying Mr. Young should have another opportunity to succeed under the previo us terms: “So basically I guess [you will] have [to] serve some time, wipe the slate clea n, come out and try again.” ROA Vol. 2 at 23.-9- B. Variance of Written Judgment At the revocation hearing, the district court stated Mr. Young’s new term of supervised release would be governed by “all of the conditi ons that were previously imposed,” ROA Vol. 2 at 23, but the court’s written ju dgment added a new condition and materially altered another, ROA Vol. 1 at 34. Because of this discrepancy, Mr. Young asks that we vacate his se ntence and remand for resentencing. The law is clear: “[A]n orally pronounce d sentence controls over a judgment . . . when the two conflict. This rule . . . has be en the law in this circuit since the 1930’s.” United States v. Villano , 816 F.2d 1448, 1450-51 (10th Cir. 1987) (en banc) (footnote omitted); see also id. at 1451 (“The sentence orally pronounced from the bench is the sentence.”). The Government does not argue otherwise. We agree with the parties that the wr itten judgment must conform to Mr. Young’s actual sentence. Rather than vacate Mr. Young ’s sentence to remedy this clerical error, we remand with instructions to the distri ct court to issue an amended judgment. See United States v. Bowen , 527 F.3d 1065, 1080 (10th Cir. 2008) (affirming sentence and remanding “for the district cour t to bring its written judgment into conformity with its previously imposed , oral sentence”); United States v. Nichols , 169 F.3d 1255, 1280 (10th Cir. 1999) (declining to vacate judgment and allo wing district court to correct clerical mistake where judgment failed to reflect defendant’s acquittal on several murder charges); see also Fed. R. Crim. P. 36 (“[T]he court may at any time correct a clerical error in a judgment, order, or other part of th e record, or correct an error in the record-10- arising from oversight or omission.”).
III. CONCLUSION We affirm on the § 3553(a) issue, re verse on the written judgment issue, and remand this case to the district court with instructions to issue an amended judgment consistent with this order. 6 The mandate shall issue fo rthwith without prejudice to appellant’s filing a petition for rehear ing should he decide to do so.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge

6 During the pendency of this appeal, Mr. Young f iled an unopposed motion for a partial remand so the district court could co rrect the judgment while we considered the first issue he raises. In light of the fore going, we deny appellant’s motion for partial remand as moot.