PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 23

- 1257

__________

UNITED STATES OF AMERICA

v.

PATRICK SHAKNITZ,

Appellant

____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 20

- cr

- 00359

- 001 ) District Judge: Honorable Wendy Beetlestone

____________________________________

Submitted on Appe llant’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

June 1 , 2023

Before: KRAUSE, PORTER and CHUNG, Circuit Judges

(Opinion file d: August 2, 2023 )

Michelle Rotella2 Office of the United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellee

Robert Epstein Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street Suite 540 West Philadelphia, PA 19106 Counsel for Appellant

___________

OPINION

___________

PE R CURIAM

Appellant Patrick Shaknitz (“ Shaknitz ”) filed an unopposed M otion for S ummary R emand based on our recent decision in United States v. Santos Diaz , 66 F.4th 435 (3d Cir. 2023)

. W e will grant the Motion , vacate the sentence, and remand to the Dist rict Court for resentencing

.

Shaknitz pleaded guilty to three counts of distribution and attempted distribution of child pornography

, in violation of 18 U.S.C. § § 2252(a)( 1 ) , (b)(1)

, and one count of possession of child pornography, in violation of 18 U.S.C. § § 2252(a)(4)

, (b)(1)

. Shaknitz was sentenced to a 170

- month term of imprisonment and a five

- year term of supervised release. During sentencing, the D istrict C ourt orally impose d a3 condition on Shaknitz’s incarceration

, limiting his contact with his five

- year

- old son to telephone only

. In its written j udgment

, the District Court did not include its own previously

- announced imposition of the condition ; rather, the District Court recommended that the Bureau of Prisons (“BOP”) impose the telephone

- only condition. The judgment did not state that the recommendation superseded the District Court’s oral pronouncement.

Shaknitz timely appealed

.

T he District Court ’s oral imposition of the telephone

only condition conflicts with t his Court’s holding in Diaz that

a sentencing c ourt lacks “ inherent authority to impose a no

contact order during [a defendant’s ] incarceration term. ” 66 F.4th at 446

. Because a D istrict C ourt’s oral pronouncement has controlling effect, and because it is unclear whether the judgment was inten ded by the District Court to replace its mandate with a recommend ation

, we must vacate Shaknitz’s
sentence. See United States v. Chamser , 952 F.2d 50, 52 n.2 (3d Cir. 1991) (“[I]n the event of a conflict between the oral pronouncement [of a sentence] and the judgment, the former

... control [s] .”) ; 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

T hough we held in Diaz that a D istrict C ourt does not have inherent authority to impose no

- contact orders as a condition of a defendant’s incarceration, we also noted that “ a District Court has the authority to make recommendations to the BOP about [ a defendant’s ] conditions of confinement. ” Di az , 66 F.4th at 447. We reiterate here that Diaz did not disturb the authority of sentencing courts to recommend to the BOP that defendants’ contact with others be4 limited where necessary and appropriate. 1 To the extent the District Court intended to make a recommendation to the BOP, that portion of the District Court’s judgment does not contravene the holding in Diaz

, and w e leave to the District Court on remand whether to renew its recommendation.

For the foregoing reasons, t he Motion is granted

, and

we will vacate the sentence and remand for resentencing by the District Court in accordance with Diaz

.

1 Nor does Diaz preclude any interested party from seeking a

no

- contact order through other appropriate processes such as protection orders.