IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11213

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

SHANNON RENEE WILEY, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CR-162

Before JONES, WIENER, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Shannon Renee Wiley pleaded guilty to assaulting a federal officer in 

violation of 18 U.S.C. § 111(a)(1). She was sentenced to eight years of 

imprisonment and three years of supervised release. On appeal, she argues 

that aspects of the district court’s written judgment concerning restitution 

conflict with the court’s oral pronouncement of her sentence. We affirm the 

district court’s judgment with one modification. 

 

* 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

March 7, 2016

Lyle W. Cayce

Clerk

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I.

In March 2014, while incarcerated in a Federal Bureau of Prisons facility 

in Fort Worth, Texas, Wiley initiated an oral confrontation with a correctional 

officer. Despite the correctional officer’s attempts to defuse the situation, 

Wiley struck the officer in the face with a pencil, injuring the officer. On the 

basis of this incident, Wiley was charged with forcibly assaulting a federal 

officer engaged in the performance of her official duties, in violation of 18 

U.S.C. § 111(a)(1). 

Wiley waived indictment and pleaded guilty to the one-count felony 

information without a plea agreement. A Presentence Report (PSR) was then 

prepared, to which Wiley lodged no objections. On October 14, 2014, the 

district court, adopting the PSR’s Sentencing Guidelines calculations, orally

sentenced Wiley to 96 months of imprisonment and three years of supervised 

release. The court did not impose a fine, but ordered that Wiley pay restitution 

to the victim “provided that the Government files that information within the 

time period provided by statute.” In addition to standard conditions of 

supervised release, the court stated:

If upon commencement of the term of supervised release there is 

any . . . part of any restitution unpaid, [Wiley] shall make 

payments on such amount at the rate of at least $50 per month no 

later than 60 days after her release from confinement and every 

month thereof until paid in full.

A written judgment was signed and entered on October 14, 2014. Its

description of restitution as a condition of supervised release essentially 

restated the oral pronouncement, but added the following language: “Any 

unpaid balance of the restitution ordered by this judgment shall be paid in full 

60 days prior to the termination of the term of supervised release.” In a 

separate section titled “Fine/Restitution,” the judgment noted that the amount 

of restitution had not yet been determined, and that non-payment of 

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restitution would “not be a violation of defendant’s conditions of supervised 

release so long as defendant pays as provided in defendant’s conditions of 

supervised release.” The court directed counsel for the parties to meet and 

confer on the issue of restitution in accordance with 18 U.S.C. § 3664. 

About two weeks later, the parties stipulated to restitution in the 

amount of $3,830.28. On November 6, 2014, the district court entered an 

amended written judgment ordering restitution in that amount. The condition 

of supervised release relating to monthly payment of restitution, as well as 

much of the language in the “Fine/Restitution” section, remained the same as 

in the original written judgment. But in the “Fine/Restitution” section, the 

amended judgment adds: “If, upon commencement of the term of supervised 

release, any part of the $3,830.28 restitution ordered by this judgment remains 

unpaid, the defendant shall make payments on such unpaid amount at the rate 

of at least $100 per month . . . .” This appeal followed. 

II.

Although the parties agree this appeal is properly before us, we pause to 

resolve one complexity regarding Wiley’s notice of appeal. In a handwritten 

letter signed October 14, 2014 (the same day the oral judgment and original

written judgment were entered), Wiley clearly stated her intent to appeal her 

sentence.1 That notice of appeal references the original written judgment 

entered on October 14—not the amended written judgment entered about 

three weeks later. Most of the conditions that Wiley challenges are contained 

 

1 The Government does not argue that Wiley’s notice of appeal—postmarked 

November 5, 2014, and stamped as filed by the district court clerk on November 6, 2014—

was untimely as to the original judgment, and affirmatively states that Wiley timely filed a 

notice of appeal. Therefore, timeliness poses no bar to our consideration of this appeal. See 

United States v. Ortiz, 613 F.3d 550, 554 (5th Cir. 2010) (“The pro se notice of appeal was 

untimely. The government notes the untimeliness but does not object to considering the 

merits. The time limit for appeal can be waived. We will review the merits of Ortiz’s claims.” 

(citation omitted)). 

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in both written judgments. But as to the requirement that Wiley pay at least 

$100 a month in restitution, contained only in the amended judgment, the 

question arises whether Wiley’s appeal complies with Federal Rule of 

Appellate Procedure 3(c)(1)(B), which requires a party to “designate the 

judgment, order, or part thereof being appealed.” 

“Rule 3 must be liberally construed in favor of appeals . . . .” United 

States v. Cantwell, 470 F.3d 1087, 1089 (5th Cir. 2006). Thus, “a mistake in 

designating a judgment appealed from should not bar an appeal as long as the 

intent to appeal a specific judgment can be fairly inferred and the appellee is 

not prejudiced or misled by the mistake.” Turnbull v. United States, 929 F.2d 

173, 177 (5th Cir. 1991). Moreover, “[f]ailure to properly designate the order 

appealed from is not a jurisdictional defect, and may be cured by an indication 

of intent in the briefs or otherwise.” United States v. Rochester, 898 F.2d 971, 

976 n.1 (5th Cir. 1990). Here, it is clear that Wiley intended to appeal her 

sentence, and the Government does not dispute that the amended judgment is 

properly before us, or assert any prejudice from the arguably insufficient notice 

of appeal. Indeed, the Government has fully briefed the issue arising from the 

amended judgment. See United States v. Winn, 948 F.2d 145, 153–56 (5th Cir. 

1991) (considering the merits when a notice of appeal failed to refer to a laterimposed sentence, but the government identified no prejudice from the 

arguable deficiency and the sentencing issues were fully briefed). Therefore, 

we proceed to the merits. See United States v. Cheal, 389 F.3d 35, 51–53 (1st 

Cir. 2004).

III.

Wiley argues that we should vacate and remand her sentence because 

the district court’s written judgment conflicts with its oral pronouncement of 

her sentence in several ways. Wiley “had no opportunity at sentencing to 

consider, comment on, or object to the special conditions later included in the 

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written judgment.” United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). 

So even though she raises these issues for the first time on appeal, we review 

for abuse of discretion, not plain error. See id.

A criminal defendant has a constitutional right to be present at 

sentencing. Id. at 380–81. So if “there is a conflict between the oral 

pronouncement and the written judgment, the oral pronouncement controls.” 

United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013). But “[i]f the written 

judgment simply clarifies an ambiguity in the oral pronouncement, we look to 

the sentencing court’s intent to determine the sentence.” Id. A conflict rather 

than an ambiguity exists “[i]f the written judgment broadens the restrictions 

or requirements of supervised release.” United States v. Mireles, 471 F.3d 551, 

558 (5th Cir. 2006). Here, Wiley submits that there are three conflicts between 

her orally pronounced sentence and the amended written judgment. 

A.

First, Wiley argues that there is a conflict between (1) the oral 

pronouncement that if any restitution is unpaid when she is released, Wiley 

“shall make payments on such amount at the rate or at least $50 per month”; 

and (2) the amended written judgment’s requirement that Wiley pay “at least

$100 per month.” As stated, the original written judgment and a different 

section of the amended judgment also reflect a $50 per month minimum 

payment. The Government agrees that these figures are “at odds,” and asks 

us to “reform the sentence . . . by changing ‘$100’ to ‘$50.’” Our review of the 

record reveals nothing that would lead us to question the Government’s view 

that the inclusion of the $100 per month provision in the amended written 

judgment is a typographical error that conflicts with Wiley’s orally pronounced 

sentence. Therefore, we will modify the judgment to conform the minimum 

monthly payment to the $50 pronounced at sentencing, and affirm the 

judgment as modified. See 28 U.S.C. § 2106 (“[A]ny . . . court of appellate 

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jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, 

decree, or order of a court lawfully brought before it for review . . . .”); United 

States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009) (reforming 

and affirming a district court’s judgment). 

B.

Next, Wiley argues that the written requirement that any unpaid 

balance of restitution be paid in full sixty days prior to the termination of her 

supervised release conflicts with the oral pronouncement, which did not 

mention any such requirement. We disagree. At sentencing, the district court 

ordered that Wiley pay restitution in an amount to be determined, and that if 

any restitution remains unpaid when her supervised release begins, she must 

make payments of at least $50 per month during her period of supervised 

release “until paid in full.” The district court’s written judgment clarifies that, 

if Wiley has not satisfied her entire restitution obligation through monthly 

payments as she nears the end of her term of supervised release, she must pay 

it in full no later than sixty days before that term expires. Cf. United States v. 

Cipolla, 531 F. App’x 185, 186 (2d Cir. 2013) (unpublished) (holding that a 

district court’s written requirement that a defendant pay $25 per quarter 

toward restitution if he earned income from a certain source, not mentioned at 

sentencing, “merely clarified [his] payment schedule in the event that he 

earned income from” that source).2 This part of the written judgment therefore 

clarified a matter not specifically addressed in the oral pronouncement, and 

was not error. See Tang, 718 F.3d at 487.

 

2 We note that Wiley does not argue that the requirement that she pay the $3,830.28 

in full before the end of her supervised release is unreasonable in light of her financial 

situation. Cf. United States v. Calbat, 266 F.3d 358, 366 (5th Cir. 2001) (holding that a 

district court erred in requiring a defendant to pay $250,000 in restitution as a term of his 

three-year supervised release without considering the defendant’s financial resources).

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C.

Finally, Wiley challenges as conflicting with the district court’s oral 

sentence the written statement that “non-payment [of restitution] will not be 

a violation of defendant’s conditions of supervised release so long as defendant 

pays as provided in defendant’s conditions of supervised release.” But this 

statement does not “broaden[] the restrictions or requirements of supervised 

release.” Mireles, 471 F.3d at 558. It merely clarifies that any delay in paying 

restitution only violates Wiley’s terms of supervised release if she fails to 

comply with the payment schedule prescribed by the district court. Therefore, 

it does not conflict with the oral pronouncement of Wiley’s sentence. 

IV.

For the foregoing reasons, we MODIFY the district court’s amended 

written judgment to reflect a minimum monthly restitution payment of $50 per 

month during Wiley’s term of supervised release, and AFFIRM that judgment 

as modified. 

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