FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30348 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00033-JMF

JOHNNY LEE NAPIER,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Alaska

James M. Fitzgerald, District Judge, Presiding

Argued and Submitted

April 7, 2006—Seattle, Washington

Filed September 19, 2006

Before: William C. Canby, Jr., Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Canby

11585
COUNSEL

Mary C. Geddes, Assistant Federal Public Defender, Anchorage, Alaska, for the defendant-appellant. 

11586 UNITED STATES v. NAPIER
Stephen Cooper, Assistant United States Attorney, Fairbanks,

Alaska, for the plaintiff-appellee. 

OPINION

CANBY, Circuit Judge: 

Johnny Napier pleaded guilty to one count of fraudulently

obtaining, converting, and misapplying federal grant funds.

Two other, similar counts were dismissed. After the sentencing hearing, the district court imposed several nonstandard

conditions of supervised release in its written judgment.

Napier contends that the district court acted unlawfully by

making these late additions to his sentence and that, in any

event, two of the conditions are unwarranted. Napier also

argues that the district court lacked authority to order restitution based on the two dismissed counts. 

[1] We conclude that the district court erred in imposing the

nonstandard conditions of supervised release after the oral

sentencing, and that it abused its discretion in imposing the

condition requiring drug treatment. We also conclude that, for

the purposes of this appeal, Napier waived his argument

regarding restitution by failing to raise it in the district court.

Background

Napier was the executive director of two nonprofit organizations that received federal grants. His activities in connection with these grants led to an indictment charging him with

three counts of fraudulently obtaining, converting, and misapplying federal funds in violation of 18 U.S.C. § 666(a)(1)(A).

Napier agreed to plead guilty to count three. In turn, the government dismissed counts one and two. The district court sentenced him to nine months in prison and three years of

supervised release. Relying on the facts of loss relating to all

UNITED STATES v. NAPIER 11587
three counts, the district court ordered Napier to pay $104,000

in restitution. 

At the sentencing hearing, the district court explained the

terms of Napier’s supervised release: 

I’m going to impose a term of three years supervised

release upon your release from incarceration. . . .

The terms and conditions of final release will be provided in a final judgment in this case, and they may

be modified from time to time while you are under

supervised release . . . Now, I’m not going to set

forth all the terms and conditions. Those terms and

conditions will be set forth in the final judgment.

. . . 

The court then advised Napier of several conditions of supervised release applicable to him, including the “mandatory”

conditions required by 18 U.S.C. § 3583(d). The district court

also summarized the effect of some of the “standard” conditions of supervised release that are recommended by USSG

§ 5D1.3(c) for imposition in every case. 

After the hearing, the court issued a written judgment that

included not only the standard conditions, but also six nonstandard conditions of supervised release. Napier challenges

the nonstandard conditions requiring him to participate in a

drug treatment program and to undergo a mental health evaluation. Napier also challenges the restitution order to the extent

that the court relied on the dismissed counts one and two to

calculate the amount owed. 

We have jurisdiction under 18 U.S.C. § 3742. We review

de novo the legality of Napier’s sentence. United States v.

Cade, 236 F.3d 463, 465 (9th Cir. 2000). 

11588 UNITED STATES v. NAPIER
Discussion

1. The Nonstandard Conditions of Supervised Release

We conclude that the district court erred when it included

in the written judgment nonstandard conditions of supervised

release without first announcing those conditions as part of

Napier’s oral sentence. Napier has a right under the Sixth

Amendment and the Federal Rules of Criminal Procedure to

be present at his sentencing. United States v. Aguirre, 214

F.3d 1122, 1125 (9th Cir. 2000); Fed. R. Crim. P. 43(a)(3).

The actual imposition of a sentence occurs at the oral sentencing, not when the written judgment later issues. Aguirre, 214

F.3d at 1125. Thus, it has long been the rule that, when an

oral sentence is unambiguous, it controls over a written sentence that differs from it. See United States v. Munoz-Dela

Rosa, 495 F.2d 253, 256 (9th Cir. 1974) (per curiam). 

This rule encounters some strain when it is applied to conditions of supervised release. Numbers of these conditions are

mandatory under 18 U.S.C. § 3583(d), or recommended by

the Guidelines as standard, boilerplate conditions of supervised release, see USSG § 5D1.3(c), and they are sufficiently

detailed that many courts find it unnecessarily burdensome to

recite them in full as part of the oral sentence. For that reason,

imposition of these mandatory and standard conditions is

deemed to be implicit in an oral sentence imposing supervised

release. See United States v. Truscello, 168 F.3d 61, 62 (2d

Cir. 1999). When those standard conditions are later set forth

in a written judgment, the defendant has no reason to complain that he was not present at this part of his sentencing

because his oral sentence necessarily included the standard

conditions. 

[2] It is nevertheless the better practice to advise the defendant orally, at least in summary fashion, of the standard conditions. Here, the district court at the sentencing hearing

commendably warned Napier that there would be conditions

UNITED STATES v. NAPIER 11589
to his supervised release, and it summarized some of the standard conditions. The court left Napier’s oral sentence ambiguous, however, because it indicated that the written judgment

would include conditions of supervised release not specified

in the oral sentence. The standard conditions in the written

judgment present no problem for reasons just explained. But

in the later written judgment, the district court also added conditions that were based on the particular circumstances of

Napier’s case. See USSG § 5D1.3(d). Since these conditions

were neither mandatory nor standard, they cannot be deemed

to have been implicit in the oral imposition of supervised

release. By adding these nonstandard conditions of supervised

release to Napier’s sentence after the hearing, the district

court denied Napier the right to be present for the imposition

of this part of his sentence. 

[3] We are not presented with a situation where the later

written sentence merely clarifies an ambiguity in the oral pronouncement and thus controls. See United States v. Garcia, 37

F.3d 1359, 1368 (9th Cir. 1994). It is true that the oral sentence was ambiguous as to the nature of the conditions that

would appear in the later written judgment. But the nonstandard conditions included in the written judgment went far

beyond what may reasonably regarded as a “clarification”;

they added substantive conditions to Napier’s sentence that

neither Napier nor his counsel could have anticipated from the

court’s statements at the sentencing hearing. Cf. Truscello,

168 F.3d at 63 (finding no error in the subsequent written

judgment because it did not change the sentence as stated

orally). 

[4] Napier’s counsel’s did not waive this issue by failing to

object at the sentencing hearing to the court’s ambiguous pronouncement. When the district court declined to set forth all

the conditions of supervised release, defense counsel had no

reason to expect that the court was withholding anything but

the standard conditions of supervised release. Moreover,

toward the end of the hearing, the government requested that

11590 UNITED STATES v. NAPIER
the district court make the findings necessary to trigger a

mandatory urine testing condition. The court responded that

it would impose that condition. Counsel could have inferred

from this exchange that the court would specify any nonstandard conditions that were to apply. Counsel had no reason to

object or ask for a continuance. 

2. The Remedy

[5] We conclude that the appropriate remedy in this case is

to vacate Napier’s sentence and remand for resentencing. If

the oral sentence was unambiguous and the written judgment

directly conflicted with it, then the oral sentence would control, and we would not need to vacate it. See United States v.

Hicks, 997 F.2d 594, 597 (9th Cir. 1993). But there is no conflict here because the district court stated that the written

judgment would contain other conditions. Cf. Truscello, 168

F.3d at 63 (finding no conflict between an oral sentence in

which the court stated that it would later impose supervisedrelease conditions and the written judgment that contained

standard conditions). Although the most reasonable interpretation of the court’s pronouncement was that only standard

conditions would follow, the pronouncement was sufficiently

ambiguous that we cannot say the inclusion of nonstandard

conditions in the written judgment created a direct conflict.

This is not a situation like that in United States v. Martinez,

250 F.3d 941, 941-42 (5th Cir. 2001) (per curiam), in which

the oral sentence made no mention of any conditions of supervised release and the written judgment included nonstandard

conditions. There the Fifth Circuit remanded with instructions

to strike the challenged conditions, leaving the oral sentence

intact. Id. at 42. Here, however, we do not have a complete

and unambiguous sentence to leave intact; we have an oral

sentence stating that unspecified conditions of supervised

release would be imposed in the written judgment. The fact

that we have now struck down the nonstandard conditions

imposed in the written judgment does not make the oral senUNITED STATES v. NAPIER 11591
tence complete and unambiguous. We accordingly vacate the

sentence and remand for resentencing. 

3. The Merits of the Nonstandard Conditions 

a. The drug-treatment condition 

[6] Because we are remanding for a resentencing in which

the issues will arise again, we review for abuse of discretion

the district court’s imposition of the drug-treatment and the

mental-health conditions. See United States v. Bahe, 201 F.3d

1124, 1127 (9th Cir. 2000). The drug-treatment condition

required Napier “to participate in either inpatient or outpatient

treatment programs . . . for substance abuse treatment, which

program shall include testing to determine whether the defendant has reverted to the use of drugs or alcohol.” The district

court may impose nonstandard conditions only if certain

criteria are satisfied. See 18 U.S.C. § 3583(d). The court

abused its discretion by imposing the drug-treatment condition because it does not satisfy the statutory criteria. Id. 

[7] The requirement to undergo drug treatment is not reasonably related to the “nature and circumstances of the

offense and the history and characteristics of [Napier].” 18

U.S.C. § 3553(a)(1). Napier was convicted of defrauding the

federal government, and there is no evidence of drug abuse

bearing any relation to the fraud. Similarly, drug treatment is

not needed to deter Napier from engaging in criminal conduct,

to protect the public from his future crimes, or to provide him

with “needed . . . correctional treatment” because there is no

evidence that Napier has a propensity for substance abuse. Id.

§ 3553(a)(2)(B)-(D). For the past ten years, Napier has

abstained from drinking alcohol and, prior to that, he was a

social drinker. Other than smoking marijuana once as a teenager, Napier contends he has never used — let alone abused

— illegal drugs. 

The only evidence on which the district court could have

based the drug treatment condition are an equivocal statement

11592 UNITED STATES v. NAPIER
by Napier’s coworker and Napier’s prior convictions. The

coworker believed Napier was abusing “some type of substance” “at one time” because Napier did not act like himself

at work and was staying out late. But the coworker did not

specify when the supposed symptoms of abuse occurred or for

how long. There are a myriad of innocent explanations for the

alleged behavior, and drug use is not a plausible one absent

other evidence of a drug problem. Nor do Napier’s almost 20-

year-old convictions for selling cocaine indicate a present propensity for drug abuse. Napier claims he bought the cocaine

and sold some to support his wife’s habit and that he never

used it. There is no evidence to the contrary. 

Finally, the drug-treatment condition is inconsistent with

the Sentencing Commission’s policies. See 18 U.S.C.

§ 3583(d)(3). The Sentencing Guidelines recommend the

imposition of the drug treatment condition “[i]f the court has

reason to believe that the defendant is an abuser of narcotics,

other controlled substances, or alcohol.” USSG § 5D1.3(d)(4).

Again, the record provides no reason to believe that Napier

abuses drugs or alcohol. 

[8] In short, the court’s decision to include a drug-treatment

condition as part of Napier’s supervised release is “clearly

against the logic and effect of the facts” and thus is an abuse

of discretion. Rabkin v. Or. Health Sci. Univ., 350 F.3d 967,

977 (9th Cir. 2003). On remand, the district court may not

reimpose this condition. 

b. The mental-health condition

[9] As a condition of his supervised release, the district

court also required Napier to “participate in and fully comply

with a mental health evaluation (specifying gambling or anger

management issues), and if deemed advisable, to participate

in either or both inpatient or outpatient mental health treatment programs.” The district court did not abuse its discretion

in imposing the mental-health condition. Because of Napier’s

UNITED STATES v. NAPIER 11593
history of violence towards women, the court had reason to

believe Napier would benefit from a mental health evaluation

and possible treatment. See 18 U.S.C. §§ 3553(a)(2); 3583(d).

Napier was convicted of misdemeanor domestic assault on

three occasions over nearly 15 years. In each incident, he hit

and choked the victim. Mental health treatment may help

deter Napier from assaulting women again and protect the

public from the various consequences of domestic violence.

This condition also provides Napier with “needed . . . correctional treatment.” 18 U.S.C. § 3553(a)(2). Finally, it involves

no greater deprivation of liberty than is reasonably necessary

to achieve these ends. See id. § 3583(d). Thus, on remand, the

district court is not precluded from reimposing the mental

health condition. 

4. Restitution

In the district court, Napier argued that the federal funds in

counts one and two should not be counted toward restitution

only because he had used the funds for authorized purposes.

The government countered that the funds had been misappropriated. The district court held an evidentiary hearing on this

factual dispute and resolved the matter against Napier. Napier

now argues that the district court lacked statutory authority to

include losses from counts one and two in his restitution order

because they were not the counts of conviction. 

[10] We decline to consider this argument because Napier

failed to raise it in the district court. As a general rule parties

who did not present an issue to the trial court cannot raise it

for the first time on appeal. United States v. Patrin, 575 F.2d

708, 712 (9th Cir. 1978). Although we can consider newlyraised issues that are purely legal, see id., Napier’s argument

depends on factual questions that were not resolved below,

and our consideration of these issues would prejudice the government. 

Restitution to the “victim of an offense” is mandatory for

the offenses in issue here. 18 U.S.C. § 3663A(a)(1) &

11594 UNITED STATES v. NAPIER
(c)(1)(A)(ii). It is also permissive under § 3663(a)(1). The

“victim,” however, is defined as one harmed by the offense of

conviction. Id. §§ 3663(a)(2) & 3663A(a)(2). Restitution may

go beyond the offense of conviction under certain conditions

if the offense of conviction contains an element of a scheme,

conspiracy or pattern of criminal activity, see id., but the

offense of which Napier was convicted contains no such element. The government accordingly concedes that the losses

from counts one and two may be included in the restitution

order only if the parties’ plea agreement authorized it. See 18

U.S.C. § 3663(a)(3) (providing authority to order restitution

“to the extent agreed to by the parties in a plea agreement”).

The plea agreement in this case was not written. The government contends that the parties orally agreed to include all

three counts in calculating the restitution. Napier argues that

there was no such term in the plea agreement and contends

that the record fails to establish that there was one. We find

that the record is inconclusive and we are in no position to

resolve this factual issue. See generally United States v.

Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991) (“Disputes

concerning the existence and terms of a plea agreement generally pose factual questions for resolution in the district court.

. . .”) (citation omitted). Moreover, if Napier had objected in

the district court to inclusion of losses from the dismissed

counts in his restitution order, the government would have

had an opportunity to present more fully its evidence of the

terms of the plea agreement. Thus, the government would be

unfairly prejudiced if we resolved this issue on the present

record. We therefore decline to do so. 

Because we are remanding for resentencing without any

limitation with respect to this issue, the district court will be

free, in such proceedings as it deems appropriate, to determine the terms of the plea agreement and the proper amount

of restitution to be ordered under it. 

UNITED STATES v. NAPIER 11595
Conclusion

We vacate Napier’s sentence and remand for resentencing

consistent with this opinion. 

SENTENCE VACATED; REMANDED FOR RESENTENCING.

11596 UNITED STATES v. NAPIER