*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opinion should not be published and is not precedent except under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.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-11239

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CARL GILL,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(5:96-CR-32-1-C)

August 10, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Carl Gill appeals the sentence following revocation of his

probation. We affirm in part, vacate in part and remand.

FACTS AND PROCEDURAL HISTORY
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Carl Gill pleaded guilty to two counts of interstate

transportation of child pornography and was placed on probation for

five years. Gill’s probation was subject to standard and special

conditions, including the condition that he participate in mental

health treatment services, as directed by the probation officer,

and that he contribute to the cost of treatment as determined by

the probation officer. In September 2000, the Government moved to

revoke Gill’s probation, contending that he had violated the

conditions of probation by committing theft, by lying to his

probation officer and by failing to report to his probation officer

that he had been terminated from his job and had secured a new job.

The district court revoked Gill’s probation and sentenced him to

18-month concurrent prison terms and three years’ supervised

release, stating orally in court the term of supervised release

would include standard and special conditions, but did not specify

any special conditions to be imposed.

ANALYSIS

a. Length of Imprisonment

Gill contends that the district court reversibly erred by

imposing concurrent 18-month sentences of incarceration, which is

twice as long as the sentence recommended by U.S.S.G. § 7B1.4. We

will uphold a sentence following a probation revocation unless it

is in violation of law or is plainly unreasonable. United States

v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). The trial court’s
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compliance with sentencing statutes is reviewed de novo. Id.

There are no applicable guidelines for sentencing after

revocation of probation. See U.S.S.G. Ch. 7, Pt.A.1 (“At this

time, the Commission has chosen to promulgate policy statements

only.”). Though the district court need not follow the policy

statements in U.S.S.G. § 7B1.4, it must at least implicitly

consider them and the sentencing factors set forth at 18 U.S.C. §

3553(a). Teran, 98 F.3d at 836. Based on our review of the

record, we conclude that the district court implicitly considered

the factors set forth in § 3553(a) in imposing Gill’s probationrevocation sentences. Given that the sentences were within the

statutory maximum of the original offense to which Gill pleaded

guilty and there are no applicable Guidelines, Gill’s sentences

were not plainly unreasonable. Id. We find no merit in Gill’s

challenge to the length of his sentences of incarceration.

b. Conditions of Supervised Release 

Gill argues on appeal that the special conditions imposed by

the district court violated his due process rights because he was

not given notice and opportunity to challenge their

appropriateness. 

The district court’s written judgment, entered three days

after its oral pronouncement, included several special conditions,

none of which were set out during the oral sentencing. The first

special condition requires Gill to participate in mental health
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treatment services and to contribute to the cost of such services

in an amount to be determined by the probation officer; this

condition is substantially the same as the one imposed on Gill’s

probation. The second special condition similarly requires Gill to

participate in sex-offender treatment and to contribute to the cost

of such treatment. The third special condition prohibits Gill from

possessing a computer modem or seeking employment which requires

the use of a computer without prior permission of the probation

officer. The fourth condition prohibits Gill from frequenting a

location or activity where persons under the age of 18 congregate,

or from having unsupervised contact with persons under the of 18,

without the permission of the probation officer. The fifth special

condition prohibits Gill from having “any pornographic matter, or

any matter that sexually depicts persons under the age of 18,”

including matter obtained from a computer. The sixth special

condition prohibits Gill from working or volunteering where persons

under the age of 18 congregate, without permission of the probation

officer.

A defendant has a constitutional right to be present at

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

2001); see also FED.R.CIRM.P. 43(a)(“The defendant shall be present

. . . at the imposition of sentence . . . .”). Therefore, when

there is a variation between the written sentence and an oral

pronouncement, the oral pronouncement controls. Martinez, 250 F.3d
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at 942. 

If there is merely an ambiguity between the two sentences, the

entire record must be examined to determine the district court’s

true intent. Id. The district court’s general reference to

“standard conditions,” while arguably ambiguous, was sufficient to

impose all standard conditions required by statute. Id. Further,

the reference to unspecified “special conditions” could reasonably

have been interpreted as an ambiguous reference to the special

conditions originally appended to Gill’s terms of probation. With

that in mind, we have examined the record and determined that the

court intended to require Gill to participate in mental health

treatment and to contribute to the cost of that service in an

amount to be determined by his probation officer, as set out in the

first special condition. However, the silence of the district

court as to any additional special condition amounts to a conflict

between the oral sentence and the written sentence, rather than an

ambiguity. We must therefore vacate those conditions and remand

the case with instructions to the district court to amend its

written judgment to delete the additional special conditions. Id.

CONCLUSION

For the foregoing reasons, we affirm Gill’s term of

imprisonment, and the standard conditions and first special

condition of supervised release. We vacate the remaining special

conditions and remand for correction of the written judgment.
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AFFIRMED IN PART, VACATE IN PART, AND REMAND.