* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-11123

_____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee

v.

TIMOTHY JOE EMERSON

Defendant-Appellant

----------------------

Appeal from the United States District Court

for the Northern District of Texas

(6:98-CR-103)

----------------------

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

WIENER, Circuit Judge*:

After being convicted, Defendant-Appellant Timothy Joe

Emerson was sentenced to a term of imprisonment and a term of

supervised release. In the written entry of judgment, the

district court imposed four special conditions of supervised

release on the defendant. The district court, however, had

failed to pronounce these four conditions orally during Emerson’s

sentencing hearing.

After serving his full term of imprisonment, Emerson was
2

released and reported to the United States Probation Office,

where he was told that he had to abide by the four special

conditions. Emerson refused, contending that he was relieved of

these obligations by the district court’s failure to impose them

orally at sentencing. 

In response, the government filed a motion for the district

court to hold a modification hearing and amend the conditions of

Emerson’s supervised release by orally adding the four special

conditions. The district court held the modification hearing and

orally imposed the special conditions at that time, after finding

that they were warranted by Emerson’s criminal history. 

Emerson now appeals this modification of his supervised

release. Satisfied that the district court did not commit

reversible error, we affirm.

I. FACTS AND PROCEEDINGS

In August 2002, a federal grand jury indicted Emerson on

three counts of possessing a firearm while under a restraining

order, in violation of 18 U.S.C. §§ 922(g)(8), 924(a)(2). That

October, a jury returned a guilty verdict on all three counts.

In January 2003, the district court held a sentencing hearing, at

which time it sentenced Emerson to thirty months imprisonment and

three years of supervised release.

During the sentencing hearing, the district court stated,
3

“Upon your release from incarceration, I am ordering that you

serve a 3-year term of supervised release. You will get a copy

of the judgment so you will know what the conditions of

supervision are. There are some standard conditions, as well as

special conditions.” The district court, however, never

identified or expressly imposed any special conditions during the

sentencing hearing.

On the same day as the sentencing hearing, the district

court rendered its written entry of judgment. In the written

judgment, the district court imposed the following four special

conditions:

1. The defendant shall participate in sex offender

treatment services as directed by the U.S. Probation

Officer until successfully discharged. These services

may include pyscho-physiological testing to monitor the

defendant’s compliance, treatment progress, and risk to

the community. The defendant is further ordered to

contribute to the costs of services rendered (copayment) at a rate of at least $10.00 per month.

2. The defendant shall not access or loiter near

school grounds, parks, arcades, playgrounds, amusement

parks, or other places where children under the age of

18 may frequently congregate unless approved in advance

by the U.S. Probation Officer.

3. The defendant shall neither seek nor maintain

employment or volunteer work at any location and/or

activity where minors under the age of 18 would

congregate without prior permission of the U.S.

Probation Officer.

4. The defendant shall not date or befriend anyone

who has children under the age of 18, unless approved
4

in advance by the U.S. Probation Officer.

Emerson completed his term of incarceration in April 2005

and began to serve his term of supervised release. The following

month, he met with U.S. Probation Officer Paul Grover. Emerson

and Grover reviewed the conditions of supervised release

contained in the written entry of judgment, and Emerson signed an

acknowledgment of these conditions.

Approximately two weeks later, Grover went to Emerson’s home

to discuss sex offender programs. At this time, Grover was

informed by Emerson that, as he had not been provided notice of

the four special conditions during his sentencing hearing, he

considered that they were not applicable to him, so he would not

comply with them. Three months later, Emerson refused to

stipulate to a joint modification of his supervised release to

include the special conditions.

In September 2005, Grover filed a petition requesting that a

summons be issued and a hearing held to modify the conditions of

Emerson’s supervised release. Grover specifically requested that

the same four terms originally included in the written entry of

judgment be imposed orally. Grover ventured that these

modifications were necessary because (1) they were part of the

original judgment, and (2) as reflected in the original PreSentence Investigation Report (“PSR”), Emerson had a prior arrest
5

and conviction for sexual assault against a minor. The

government subsequently filed its own motion to amend the

conditions of Emerson’s supervised release, echoing Grover’s

concerns.

Later that month, the district court held a hearing on the

motions to amend, and Emerson was present. U.S. Probation

Officers Ricky Chittum, who had prepared the PSR, and Grover, who

was handling Emerson’s supervised release, testified at the

hearing.

Chittum testified that (1) the PSR included information that

Emerson had pleaded guilty in 1987 to sexually assaulting his

eight-year old step-daughter by digitally penetrating her vagina

over 100 times, which he was sentenced to a ten-year term of

deferred adjudication; (2) based on his conversations with

Emerson prior to learning the details of the sexual assault

offense, he understood that Emerson did not accept responsibility

for the offense, explaining that he was only teaching his stepdaughter to perform self-breast examinations; (3) he knows from

his professional experience with sex offenders that they have a

recidivism rate of approximately 70% and thus are likely to reoffend; and (4) the addition of the four special conditions was

necessary in Emerson’s case to meet the objectives and goals of

supervised release.
6

On cross-examination, Chittum acknowledged that Emerson’s

trial counsel had not been provided with pre-sentencing notice

that the four special conditions were being sought, because the

special conditions did not appear in the PSR, but only in

Chittum’s sentencing recommendation to the district court.

Grover recounted the facts and circumstances surrounding

Emerson’s post-incarceration opposition to the special conditions

and acknowledged that he was unaware whether Emerson had received

a copy of the written supervised release conditions prior to

Grover’s visit. He also testified that Emerson owned two

computers, which could easily be used to access child

pornography, and that, while Emerson was visiting his mother at

her retirement home in May 2005, he had contact with his ten-year

old daughter, in violation of his divorce decree. Lastly, Grover

recommended that the district court modify the terms of Emerson’s

supervised release to include the four special conditions

originally included in the district court’s written entry of

judgment.

At the conclusion of the modification hearing, the district

court granted the motions to amend and modified Emerson’s

supervised release conditions to add four special conditions that

were substantially identical to the ones contained in the

original written entry of judgment.
1 United States v. Ferguson, 369 F.3d 847, 852 (5th Cir.

2004).

2 United States v. Naranjo, 259 F.3d 379, 381 (5th Cir. 2001).

3 United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006).

7

Emerson timely filed a notice of appeal.

II. LAW AND ANALYSIS

A. Standard of Review

We review a district court’s decision to impose

discretionary terms of supervised release for abuse of

discretion.1 Questions concerning statutory interpretation,

however, are reviewed de novo.

2

B. Merits

1. Presence at Sentencing

Emerson’s initial issue on appeal is his contention that the

district court’s original imposition of the four special

conditions solely by way of a written judgment violated his

constitutional right to be present at sentencing, such that the

four conditions cannot be considered as part of his original

sentence. We agree.

A defendant has a constitutional right to be present at his

sentencing.3 This right stems from the Confrontation Clause of

the Sixth Amendment, but is also protected by the Due Process

Clause of the Fifth Amendment when the defendant is not actually
4 Id. at 381.

5 Fed. R. Crim. P. 43(a)(3).

6 Bigelow, 462 F.3d at 381, 383.

7 Id. at 381.

8 United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)

(concluding that participation in a drug treatment program was a

special condition and thus presented a conflict).

8

confronting witnesses or evidence against him.4 It has also been

codified in Federal Rule of Criminal Procedure 43(a)(3).5 Thus,

if a written entry of judgment conflicts with an oral

pronouncement at a sentencing hearing, the oral pronouncement

controls and the written entry of judgment must be conformed to

the oral pronouncement.6

If the differences between the two are merely ambiguities,

we look to the district court’s intent to determine the actual

sentence.7 We have previously held, however, that such a

difference in a special condition of supervised release presents

an actual conflict, not just an ambiguity, for sentencing

purposes.8

Here, all four of the conditions at issue are special

conditions. Thus, they present conflicts between the oral

pronouncement and the written entry of judgment. Accordingly,

the district court erred in imposing the four conditions in its

written entry of judgment without having announced them at
9 United States v. Valles, 484 F.3d 745, 758 (5th Cir. 2007).

9

Emerson’s sentencing hearing. Therefore, Emerson’s original

sentence must be redacted to conform to the oral pronouncement at

his original sentencing hearing. The four special conditions are

therefore excised from Emerson’s original sentence.

Notwithstanding the fact that the original imposition of the

four special conditions violated his constitutional rights,

Emerson offers no valid reason why the district court could not

lawfully modify his sentence at a post-incarceration hearing, as

permitted under 18 U.S.C. § 3583(e). Thus, to the extent that

any such argument might exist, Emerson has waived it.9

2. Modification Hearing

Emerson’s second issue on appeal is his contention that the

district court’s post hoc order modifying the terms of his

supervised release violated United States Sentencing Guidelines

(“U.S.S.G.”) § 5F1.5, because the four special conditions did not

have a “reasonably direct relationship” to the offense for which

he was convicted.

Section 3583(e)(2) vests a district court, after considering

the factors set forth in § 3553(a), with broad discretion to

modify a defendant’s conditions of supervised release by adding

special conditions at any time prior to the expiration or
10 18 U.S.C. § 3583(e)(2).

11 Id.

12 United States v. Mills, 959 F.2d 516, 519 (5th Cir. 1992).

10

termination of the term of supervised release. In doing so, the

district court must afford the defendant the procedural

safeguards specified in Federal Rule of Criminal Procedure

32.1(c), and the special conditions must be reasonably related to

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant, (2) the need to afford

adequate deterrence to criminal conduct, (3) the need to protect

the public from further crimes of the defendant, and (4) the need

to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the

most effective manner.10 To the extent that the district court

does impose special conditions, they may not involve a greater

deprivation of liberty than is reasonably necessary to achieve

the need to deter criminal conduct, protect the public, and

provide the defendant with training, care, or correctional

treatment.11

One of the special conditions that a district court has at

its disposal is an “occupational restriction.” U.S.S.G. § 5F1.5,

however, imposes a higher standard for the imposition of

occupational restrictions.12 Section 5F1.5 specifically
13 U.S.S.G. § 5F1.5 (emphasis added).

14 Mills, 959 F.2d at 519.

11

provides:

(a) The court may impose a condition of probation or

supervised release prohibiting the defendant from

engaging in a specified occupation, business, or

profession, or limiting the terms on which the

defendant may do so, only if it determines that:

(1) a reasonably direct relationship existed

between the defendant’s occupation, business, or

profession and the conduct relevant to the offense

of conviction; and

(2) imposition of such a restriction is reasonably

necessary to protect the public because there is

reason to believe that, absent such restriction,

the defendant will continue to engage in unlawful

conduct similar to that for which the defendant

was convicted.

(b) If the court decides to impose a condition of

probation or supervised release restricting a

defendant’s engagement in a specified occupation,

business, or profession, the court shall impose the

condition for the minimum time and to the minimum

extent necessary to protect the public.13

The purpose behind an occupational restriction is not to punish

the defendant, but to prevent the defendant’s continued or

repeated illegal activities while avoiding a bar to employment

that exceeds that needed to achieve the result.14

Emerson contends that the second and third special

conditions (i.e., access to where children congregate and

employment where children congregate) are impermissible
15 U.S.S.G. § 5F1.5 (emphasis added).

16 United States v. Paul, 274 F.3d 155, 171 n.18 (5th Cir.

2001) (providing that if the defendant’s “primary means of

supporting himself” were involved, then he would entitled to the

higher degree of scrutiny for occupational restrictions under §

5F1.5). 

12

occupational restrictions. This contention is based on the

“reasonably direct relationship” language of § 5F1.5(a)(1).

Emerson asserts that, as his offense of conviction was possessing

a firearm while under a restraining order, these two prohibitions

are not reasonably related to his firearm conviction. Rather, he

insists, these occupational restrictions were sought because of

his prior sexual assault conviction and are reasonably related

only to that offense. Thus, contends Emerson, § 5F1.5 disallows

the second and third special conditions imposed by the district

court. We disagree.

Emerson glosses over the fact that § 5F1.5 only applies to

prohibiting a defendant from engaging in “a specified occupation,

business, or profession, or limiting the terms on which the

defendant may do so.”15 A “specified occupation” as used in §

5F1.5 is one that is the defendant’s primary means of supporting

himself, not any endeavor from which the defendant has merely

earned some money.16 Neither is § 5F1.5 concerned with whether a

special condition might possibly deprive the defendant of a

potential occupational opportunity in the future. Rather, its
17 Mills, 959 F.2d at 519.

13

focus is on whether a defendant would be deprived of his preexisting primary occupation.

These conclusions are supported by the purpose of § 5F1.5.

Conditions that would impose occupational restrictions are held

to a higher standard because Congress did not want to deprive

defendants of their livelihoods without significant justification

and thereby mete out additional punishment.17 By the same token,

nothing suggests that Congress had any intention of imposing a

higher standard on the imposition of restrictions with merely

speculative future occupational opportunities or any activities

that might incidentally involve a future occupational

opportunity. Otherwise, Congress would have unwittingly and

inevitably transformed all space and time restrictions into

occupational restrictions, necessitating the application of the

higher standard. This cannot be what Congress intended.

According to the PSR, Emerson is a medical doctor, but he

has not practiced since December 1998 because of poor health.

Although restricting Emerson’s access to and employment at places

where children congregate could place some tangential hardship on

his ability to practice medicine, it does not prevent him from

pursuing his present primary means of support. 
18 United States v. Rearden, 349 F.3d 608, 622 (9th Cir. 2003).

14

In addition, Emerson has not shown with any specificity how

the two relevant special conditions will restrict his ability to

serve as a medical doctor.18 Emerson has offered nothing more

than raw speculation and conclusional statements to support his

claim that these special conditions will affect his livelihood.

Thus, the two relevant special conditions are not occupational

restrictions for purposes of § 5F1.5, and thus are not entitled

to a higher standard. 

As Emerson does not contend that the imposition of the

special conditions violated the requirements of § 3583, we

conclude the district court did not err in imposing the second

and third special conditions at issue. Moreover, even if it had,

we still would not have found an abuse of discretion.

III. CONCLUSION

We acknowledge that the district court violated Emerson’s

constitutional rights by imposing special conditions of

supervised release in its written entry of judgment when it had

failed to pronounce them orally at sentencing. This error was

rendered nugatory, however, when the district court held a postincarceration modification hearing and orally amended Emerson’s

sentence to include the special conditions. Given that none of
15

the four special conditions constituted an occupational

restriction, none was subject to a higher standard, rendering the

conditions subject to the standard § 3583 sentence-modification

requirements. Based on the applicable law and our extensive

review of the parties’ briefs and the record on appeal, we are

satisfied that the district court did not abuse its discretion

under § 3583(e) in imposing the special conditions of supervised

release at the conclusion of the modification hearing convened

and conducted for that purpose.

AFFIRMED.