IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20259

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DANIEL LOMAS, III, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:07-CR-497

Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Daniel Lomas, III, appeals the district court’s reimposition of special 

conditions of supervised release where the written judgment differed from the 

oral pronouncement at sentencing. Because we conclude that the district court 

abused its discretion, we VACATE the educational program and mental health 

conditions of supervised release and REMAND to the district court for 

proceedings consistent with this opinion.

 

* 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

February 10, 2016

Lyle W. Cayce

Clerk

 Case: 14-20259 Document: 00513375389 Page: 1 Date Filed: 02/10/2016
No. 14-20259

2

FACTS AND PROCEDURAL HISTORY

Daniel Lomas, III, pleaded guilty in 2008 to conspiracy to transport an 

alien for the purpose of commercial advantage and private financial gain under 

8 U.S.C. §§ 1324(a)(1)(A)(ii), (iii), & (v)(I). He was sentenced to twenty-four 

(24) months imprisonment, to be followed by three years of supervised release. 

Among the special conditions of supervised release, Lomas was required to 

participate in a drug treatment program, “required to participate in a mental 

health program as deemed necessary and approved by the probation officer,” 

and ordered to “enroll and participate in an educational program designed to 

receive a high school diploma or its equivalency.” The term of supervised 

release began on October 9, 2009.

On March 2012, the United States Probation Office (Probation) 

petitioned the court to revoke Lomas’ supervised release, alleging a law 

violation from traffic violations, two positive drug tests, and failure to report. 

In July 2012, Lomas pleaded true to committing the four supervised-release 

violations. The district court revoked Lomas’ supervised release and sentenced 

him to seven months imprisonment with an additional term of supervised 

release of twenty nine (29) months. The written judgment omitted the 

educational condition, but contained the same drug-treatment and mentalhealth conditions as originally required. 

In July 2013, Probation again petitioned the district court regarding a 

supervised released violation. On September 6, 2013, Lomas pleaded true to 

one violation for failing to participate as directed in an alcohol and drug 

treatment program. As Lomas was gainfully employed and had tested clean, 

the district court removed the drug-treatment requirement, but admonished 

Lomas to “comply in the future with the requirements” of his supervised 

release and said “the other terms of supervised release will continue, which 

will mean you will continue to be tested from time to time.” The written order 

 Case: 14-20259 Document: 00513375389 Page: 2 Date Filed: 02/10/2016
No. 14-20259

3

said that the court had “reinstated all previously imposed conditions and 

waived drug treatment at this time,” but did not specify the conditions.

On March 10, 2014, Probation petitioned the court to revoke Lomas’ term 

of supervised release, alleging two law violations of criminal trespass, one 

positive drug test, and later a superseding allegation of a fourth violation 

involving an assault. After a hearing in which Lomas’ mental health condition 

was discussed at length, Lomas pleaded true to the positive drug test violation 

and the court revoked his supervised release. The other alleged violations were 

dismissed. 

The district court sentenced Lomas to a term of imprisonment of eight 

months, to be followed by a twenty-one (21) month term of supervised release. 

Specifically, the court said that “the previous condition remained [sic] in effect 

with respect to drug treatment and help as may be determined appropriate by 

the probation office, as I have previously required.” However, in addition to 

the orally-imposed drug-treatment condition, the written judgment also 

included the mental health and educational conditions that were originally 

imposed – despite the fact that the educational condition was not reimposed in 

March 2012.

Thereafter, Lomas filed this appeal. On October 27, 2014, counsel filed 

a brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 

738 (1967). On March 19, 2015, this court denied the motion, identified two 

potentially nonfrivolous issues for appeal, and ordered counsel to file 

supplemental briefing. Counsel then filed briefing on the merits.

STANDARD OF REVIEW

“[A] defendant has a constitutional right to be present at sentencing.” 

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

marks and citation omitted; alteration in original). Where there is a conflict 

between the written judgment and the oral pronouncement of sentence, the 

 Case: 14-20259 Document: 00513375389 Page: 3 Date Filed: 02/10/2016
No. 14-20259

4

oral pronouncement controls. United States v. Torres-Aguilar, 352 F.3d 934, 

935 (5th Cir. 2003); see also United States v. Vega, 332 F.3d 849, 852 (5th Cir. 

2003). Lomas did not have the opportunity to address the issue when the 

condition was reimposed. Thus, this court reviews the imposition of special 

conditions of supervised release for an abuse of discretion. United States v. 

Fernandez, 776 F.3d 344, 345 (5th Cir. 2015); see also Torres-Aguilar, 352 F.3d 

at 935.

DISCUSSION

I. The educational program condition.1

Lomas asserts that the district court abused its discretion by including 

the educational program condition in the written judgment because it was not 

orally pronounced or even mentioned during the sentencing hearing. Further, 

he asserts that this condition should be struck from the judgment.

The Government asserts that the court should review for plain error. 

However, the Government offers no persuasive authority to support such a 

proposition. The Government argues in the alternative that Lomas cannot 

show that the district court abused its discretion by failing to announce the 

condition.

This court has held that the inclusion of “mandatory, standard, or 

recommended” conditions of supervised release in the written judgment, even 

if the conditions were not orally stated at sentencing, does not create a conflict 

between the written and oral judgments. Torres-Aguilar, 352 F.3d at 938; see 

also U.S.S.G. § 5D1.3(d)(1)(5). However, “if the district court fails to mention 

a special condition at sentencing, its subsequent inclusion in the written 

judgment creates a conflict that requires amendment of the written judgment 

 

1 We have been informed by the Federal Public Defender that Lomas recently violated 

a separate condition and the educational program condition was not reimposed. Thus, this 

issue would be moot.

 Case: 14-20259 Document: 00513375389 Page: 4 Date Filed: 02/10/2016
No. 14-20259

5

to conform with the oral pronouncement.” See Torres-Aguilar, 352 F.3d at 936 

(quoting Vega, 332 F.3d at 852-53) (emphasis original). The special condition 

that Lomas “enroll and participate in an educational program designed to 

receive a high school diploma or its equivalency” is not a mandatory, standard 

or recommended condition of supervised release under Section 5D1.3. See

U.S.S.G. § 5D1.3(a), (c), (d). This special condition is also not contained in 

General Order No. H-1996-10 of the United States District Court for the 

Southern District of Texas (General Order).

This court has not yet specifically addressed in a published opinion 

whether a defendant’s constitutional right to be present at sentencing is 

violated where he was subject to the condition at issue based upon his initial 

sentencing but was not orally informed that the condition was reimposed upon 

revocation of his supervised release. However, this court has held that a 

district court abused its discretion by including an additional restriction in the 

written judgment that was not part of the oral pronouncement of sentence. See 

United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013). This court has also 

held in an unpublished opinion that a district court abused its discretion by 

including special conditions in a written judgment that were not orally 

pronounced on revocation sentencing. See United States v. Babineaux, 493 F. 

App’x 485, 487-89 (5th Cir. 2012). Further, this court has said that the oral 

pronouncement controls where “the transcript from the revocation hearing 

reflects that the district court's reimposition of the special assessment is 

contrary to the oral pronouncement.” United States v. Orduna-Perales, 530 F. 

App’x 355, 356 (5th Cir. 2013) (“[D]istrict court’s judgment is modified to strike 

the reimposition of the $100 special assessment so that the written judgment 

is in conformance with the oral pronouncement, and we affirm the judgment 

as so modified.”); see also United States v. Gil-Perez, 605 F. App’x 439 (5th Cir. 

2015). 

 Case: 14-20259 Document: 00513375389 Page: 5 Date Filed: 02/10/2016
No. 14-20259

6

Additionally, the special condition here was not reimposed in the written 

judgment following Lomas’ 2012 revocation hearing – despite the district 

court’s oral pronouncement that the “[s]pecial conditions of recommenced 

supervised release will be [sic] same as those that had previously been in 

effect.”

The record reflects that the written judgment includes a special 

condition that was not orally imposed and could not be clarified by reference to 

conditions of supervision set forth elsewhere. See Torres-Aguilar, 352 F.3d at 

936, 938. While this special condition was imposed in connection with Lomas’ 

original sentence, it was not orally pronounced upon reimposition of supervised 

release during the 2014 revocation proceeding at issue here. This court has 

previously concluded that the oral pronouncement controls in such a situation. 

For these reasons, we conclude that the district court abused its 

discretion by including the educational program special condition in the 

written judgment. Thus, we vacate the educational program condition and 

remand to the district court to strike the condition from the written judgment.

II. The mental health program condition. 

STEPHEN A. HIGGINSON, Circuit Judge:

Lomas also challenges the mental-health special condition on the ground 

that its wording impermissibly delegates to the probation officer the decision 

whether he must undergo mental-health treatment. Lomas has made this 

argument before: in 2008, when he appealed his original sentence, which 

contained an identically worded mental-health special condition. See United 

States v. Lomas (Lomas I), 304 F. App’x 300 (5th Cir. 2008). At his 2008 

sentencing, Lomas did not object to the alleged improper delegation, so we 

reviewed the issue for plain error. Id. at 300. We found cause for concern, but 

no plain error, and so affirmed. See id. at 301. 

 Case: 14-20259 Document: 00513375389 Page: 6 Date Filed: 02/10/2016
No. 14-20259

7

This time around, Lomas argues that review should be for abuse of 

discretion because the district court “failed to mention the [mental-health] 

condition while orally pronouncing the sentence.”2 (Blue Br. at 15.) When a 

district court fails to announce a special condition of supervised release at 

sentencing, the defendant is denied “the opportunity to object.” Tang, 718 F.3d 

at 487. When that happens, we review for abuse of discretion, not plain error. 

See id.

Here, it is close question whether the district court’s oral pronouncement 

of sentence at the revocation hearing provided Lomas with adequate 

“opportunity . . . to consider, comment on, or object to the special condition.” 

United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). We begin by noting 

that the condition has been an important constant for Lomas from 2008 to 

2014: it appeared in his original 2008 sentence (ROA.75); then it was reiterated 

orally and in his written judgment after his 2012 revocation (ROA.171, 105); 

then it was “continue[d]” as “unchanged” orally and in writing after the 2013 

modification (ROA.185, 121-22); and, finally, it is in his 2014 revocation 

written judgment that we are reviewing now (ROA.146).

We also note that the predicate for imposing the condition—that “the 

court has reason to believe that the defendant is in need of psychological or 

psychiatric treatment”—was satisfied. U.S.S.G. § 5D1.3(d)(5). At the 

 

2 Lomas does not challenge the inclusion of the mental health condition on the ground 

that the district court’s alleged omission constitutes a “conflict” with the written judgment 

requiring striking. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). Instead, 

he notes the alleged omission only in support of his argument that abuse-of-discretion, rather 

than plain-error, review should apply to his improper-delegation challenge. Thus, we need 

not decide whether the inclusion of a detailed mental-health condition in the written 

judgment following the district court’s oral pronouncement of generic “help” constituted a 

“conflict” requiring striking or an “ambiguity” permitting us to consider the district court's 

intent. See United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013). If we were faced with 

that decision, however, then for the reasons set forth in the following discussion, we would 

be inclined to hold that, under the facts present here, the difference between the oral 

pronouncement and written judgment constituted only an ambiguity.

 Case: 14-20259 Document: 00513375389 Page: 7 Date Filed: 02/10/2016
No. 14-20259

8

revocation hearing, Lomas’s counsel challenged the court’s review of Lomas’s 

medical records from the Bureau of Prisons. (ROA.194-99.) The court explained 

that it had ordered the records in response to concerns raised by defense 

counsel about Lomas’s medical treatment, and for the purpose of verifying that 

the Bureau of Prisons was providing Lomas with “reasonable access for 

medical evaluation and appropriate prescribed medications for the treatment 

of bipolar [dis]order.” (ROA.196.) Later in the hearing, Lomas’s counsel argued 

that Lomas’s bipolar disorder diagnosis helps to explain his struggle to comply 

with the drug-treatment conditions of his supervised release. (ROA.202.) 

Finally, at the end of sentencing, the court instructed Lomas to “pay attention 

to the doctors’ diagnosis that your lawyer has very well pointed out. And do 

what those doctors say, and if they say you should have prescription 

medication, then take that. Understand that they’re trained in trying to help 

you, too.” (ROA.208-09.) In short, concern for Lomas’s mental health, from both 

court and counsel, ran through the entire hearing. These exchanges make clear 

that the court was familiar with Lomas’s mental-health history and had 

“reason to believe” that Lomas was in need of further psychiatric treatment. 

U.S.S.G. § 5D1.3(d)(5).

It is against this backdrop that we must read the court’s oral 

pronouncement about supervision:

1 And it’s the Court’s hope, by providing adequate 

punishment, which is incremental to his previous revocation, 

slightly, and by giving him more opportunity for supervision – And 

I want to say, also, the previous condition remained in effect with 

respect to drug treatment and help as may be determined 

appropriate by the probation office, as I have previously required. 

(ROA.207 (emphasis added).) Given the context just described—Lomas’s long 

history of consistently receiving the mental health condition, and the clear 

concern for Lomas’s mental health demonstrated by both court and counsel 

 Case: 14-20259 Document: 00513375389 Page: 8 Date Filed: 02/10/2016
No. 14-20259

9

during the hearing—the court’s mention of “help” can plausibly be read to refer 

to the previously, and consistently, imposed mental-health condition.

Even so, it is a close question whether the district court’s single mention 

of “help” was sufficient to provide Lomas with adequate “opportunity at 

sentencing to consider, comment on, or object to” the version of the mentalhealth condition that the district court ultimately imposed. Bigelow, 462 F.3d 

at 381; see generally Fed. R. Crim. P. 32.1(b)(2)(E), (c)(1). In particular, it is 

hard to see how Lomas could have objected at sentencing to the wording of the 

condition—the basis of his challenge on appeal—when he did not encounter 

that wording until he received his written judgment. Thus, we will not limit to 

plain error our decision as to whether the delegation requires reversal. We 

review de novo the constitutional question whether the delegation contravened 

Article III of the United States Constitution. See United States v. Perez-Macias, 

335 F.3d 421, 425 (5th Cir. 2003).

Lomas argues that the district court impermissibly delegated its judicial 

authority by leaving his participation in a mental-health program to the 

discretion of his probation officer. Although probation officers have broad 

power to supervise probationers and “perform any other duty that the court 

may designate,” 18 U.S.C. § 3603(10), the type of duty that a court may 

delegate is limited by Article III of the Constitution, see United States v. 

Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995). The imposition of a sentence, 

including the terms and conditions of supervised release, is a “core judicial 

function” that cannot be delegated. Id. at 808 (citing Ex Parte United States, 

242 U.S. 27, 41 (1916)); see United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 

2005) (“[A] probation officer may not decide the nature or extent of the 

punishment imposed upon a probationer.”). Thus, a district court may properly 

delegate to a probation officer decisions as to the “details” of a condition of 

supervised release. United States v. Nash, 438 F.3d 1302, 1305 (11th Cir. 2006) 

 Case: 14-20259 Document: 00513375389 Page: 9 Date Filed: 02/10/2016
No. 14-20259

10

(citation omitted). But a court impermissibly delegates judicial authority when 

it gives a probation officer “authority to decide whether a defendant will 

participate in a treatment program.” United States v. Heath, 419 F.3d 1312, 

1315 (11th Cir. 2005) (emphasis added); see also Lomas I, 304 F. App’x at 300-

01 (collecting cases from other circuits).

Here, the mental-health condition imposed in Lomas’s written judgment 

provided, in relevant part: “The defendant is required to participate in a 

mental health program as deemed necessary and approved by the probation 

officer.” (ROA. 146.) Coupled with the “extensive evidence of [Lomas’s] mental 

illness,” United States v. Allen, 312 F.3d 512, 516 (1st Cir. 2002), the first part 

of the sentence sounds mandatory: “the defendant is required to participate.” 

But the second part is discretionary: “. . . as deemed necessary . . . by the 

probation officer,” hence we conclude that, in this case, the condition is 

ambiguous, see United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001), and 

we vacate the condition and remand for resentencing, with the following 

instructions:

2 If the district court intends that the therapy be mandatory 

but leaves a variety of details, including the selection of a therapy 

provider and schedule to the probation officer, such a condition of 

probation may be imposed. If, on the other hand, the court intends 

to leave the issue of the defendant's participation in therapy to the 

discretion of the probation officer, such a condition would 

constitute an impermissible delegation of judicial authority and 

should not be included.

Id.3

 

3 We caution, however, that our finding of ambiguity is limited to the facts of this case, 

and should be viewed as the exception, not the rule. In most instances, this sort of 

discretionary language--apparently used with some frequency, see, e.g., United States v. 

Villarreal, 519 F. App'x 236, 237 (5th Cir. 2013); United States v. Fernandez, 436 F. App'x 

384, 385 (5th Cir. 2011); United States v. Torres-Pindan, 400 F. App'x 839, 841 (5th Cir. 

2010); United States v. Bishop, 603 F.3d 279, 280 (2010); United States v. De Los Santos, 332 

F. App'x 993, 993 (5th Cir. 2009); United States v. Davis, 306 F. App'x 851, 852 (5th Cir. 

 Case: 14-20259 Document: 00513375389 Page: 10 Date Filed: 02/10/2016
No. 14-20259

11

CONCLUSION

For the reasons stated herein, we VACATE the educational program and 

mental health program conditions of supervised release and REMAND to the 

district court for resentencing. 

 

2009); United States v. Grubert, 339 F. App'x 406, 406 (5th Cir. 2009); United States v. 

Mungia, 297 F. App'x 314, 314 (5th Cir. 2008)--will constitute an impermissible delegation.

 Case: 14-20259 Document: 00513375389 Page: 11 Date Filed: 02/10/2016
No. 14-20259

12

GRAVES, Circuit Judge, concurring in part as to issue II:

I disagree with the separate majority’s conclusion that the mental health 

condition was ambiguous. On reimposition of Lomas’ supervision, the district 

court’s written judgment included the special condition that required Lomas 

“to participate in a mental health program as deemed necessary and approved 

by the probation officer.” The district court imposed a mental health program 

condition in Lomas’ initial sentence and at his prior revocation hearing. 

On direct appeal, Lomas argued that the district court reversibly erred 

by delegating to the probation officer the authority to decide whether he should 

undergo mental health treatment. United States v. Lomas, 304 F. App’x 300 

(5th Cir. 2008). Because Lomas had not objected, this court reviewed for plain 

error and found none, noting that “[w]e ordinarily do not find plain error when 

we ‘have not previously addressed’ an issue.” Id. at 301. However, the court 

acknowledged its concerns and cited precedent from other circuits that “have 

agreed an improper delegation occurs in similar cases.” Id. at 300.1

This court has considered arguments that conditions are substantively 

unreasonable upon reimposition even when those arguments were not 

 

1 Specifically, this court said: 

The Eleventh Circuit has found that an impermissible delegation of 

judicial authority occurs when a court gives “the probation officer the authority 

to decide whether a defendant will participate in a treatment program,” as 

opposed to authority over the implementation of the treatment. United States 

v. Heath, 419 F.3d 1312, 1315 (11th Cir.2005); see also United States v. Pruden, 

398 F.3d 241, 250-51 (3d Cir.2005) (mental health treatment); United States v. 

Peterson, 248 F.3d 79, 85 (2d Cir.2001); United States v. Kent, 209 F.3d 1073, 

1078-79 (8th Cir.2000) (mental health treatment); United States v. Figuereo, 

404 F.3d 537, 542-43 (1st Cir.2005) (drug testing); United States v. Stephens, 

424 F.3d 876, 882-84 (9th Cir.2005) (drug testing); United States v. Sines, 303 

F.3d 793, 799 (7th Cir.2002) (sex-offender treatment). One of our sister circuits 

concluded that every circuit court to review a sentence that gave to a probation 

officer the authority to decide whether a defendant will participate in a 

treatment program found it unconstitutional. Heath, 419 F.3d at 1315.

Id.

 Case: 14-20259 Document: 00513375389 Page: 12 Date Filed: 02/10/2016
No. 14-20259

13

presented on original imposition. United States v. Johnson, 577 F. App’x 241, 

243-44 (5th Cir. 2014). The revocation leads to a new sentence. Id. at 244. 

While Lomas did raise this issue on direct appeal as related to his original 

sentence and under plain error review, this appeal pertains to the reimposed 

sentence on revocation under a different standard of review. Here, this court’s 

review is for abuse of discretion because Lomas did not have the opportunity 

to contest the reimposed condition at sentencing. This court has not addressed 

the issue of delegation of authority under the abuse-of-discretion standard. 

Further, the legal question of whether the condition involved an 

unconstitutional delegation would be reviewed de novo. See United States v. 

Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).

The district court here did not orally impose on reimposition of 

supervised release the special condition that Lomas enroll in a mental health 

treatment program “as deemed necessary and approved by the probation 

officer.” That special condition appears only in the written judgment. I 

disagree with the separate majority’s suggestion that we should ignore any 

error because Lomas’ reference to it was not sufficient to “challenge” the issue. 

I further disagree with the separate majority that “the difference between the 

oral pronouncement and the written judgment constituted only an ambiguity.” 

Despite the separate majority’s assertion of an oral pronouncement of “generic 

‘help,’” the district court actually plainly stated that the help it was referencing 

was as to one “previous condition” and that was “drug treatment.” Further, 

the separate majority’s discussion of Lomas’ medical records does not in any 

way cure the fact that the special condition was not orally pronounced.

Based on this court’s acknowledgements on direct appeal, the cases from 

sister circuits, the fact that the district court clearly delegated authority by 

saying “as deemed necessary” by the probation officer, and the relevant 

standard of review, I would conclude that the district court abused its 

 Case: 14-20259 Document: 00513375389 Page: 13 Date Filed: 02/10/2016
No. 14-20259

14

discretion by requiring the mental health condition which impermissibly 

delegated authority to the probation officer. Notwithstanding the 

impermissible delegation of authority, the district court also abused its 

discretion by failing to orally pronounce the mental health condition. 

Accordingly, I would vacate the mental health program condition, and remand 

to the district court to strike the condition from the written judgment.

 Case: 14-20259 Document: 00513375389 Page: 14 Date Filed: 02/10/2016