UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 01-40961

____________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEFFERY LYNN WARDEN,

Defendant - Appellant.

Appeal from the United States District Court

For the Southern District of Texas

May 14, 2002

Before DAVIS, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jeffery Lynn Warden appeals his guilty-plea conviction for possession with intent to distribute

over 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Warden argues

that the district court committed reversible error by including in its written jud g ment special

conditions of supervised release that were not part of its oral pronounceme nt of sentence at the

sentencing hearing, and also argues that 21 U.S.C. § 841 is unconstitutional in light of the Supreme

Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000). We disagree.-2-

Warden pleaded guilty to possessing more than 100 kilograms of marijuana and was sentenced

to a 76-month term of imprisonment, a five-year term of supervised release, and a $100 mandatory

special assessment. At the sentencing hearing, the judge stated that Warden should undergo a sexoffender evaluation and receive co unseling, if necessary, because of his history involving crimes

aga inst children. The judge then directed the parties to “come up with some language” for an

appropriate special condition of supervised release. The district court orally pronounced Warden’s

sentence in relevant part as follows:

While on supervised release, the Defendant.

. .shall participate in drug

abuse counseling as required by the Probation Department, including

inpatient or outpatient treatment as required. And. . .we already had

the earlier discus sio ns of sex offender evaluation and the conditions

that flow from it and tha t are imposed until modified. They are

reimposed here now and are part of the sentence. I think the

defendant also reflects a certain degree of abusive behavior to other

persons, and I want those evaluated as well for anger treatment, how

to handle his own behavior.

Eight days later, the court signed the written judgment, which stated in part the following

conditions of supervised release:

DRUG TREATMENT: The defendant shall participate in a program,

inpatient or outpatient, for the treatment of drug and/or alcohol

addiction, dependency or abuse which may include, but not be limit ed

to u rine, breath, saliva and skin testing to determine whether the

defendant has reverted to the use of drugs and/ or alcohol . Further,

the defendant shall participate as instructed and as deemed necessary

by the pr o bat ion officer and shall comply with all the rules and

regulations of the treatment agency until discharged by the Program

Director with the approval of the probation officer. The defendant

shall further submit to drug detection techniques in addition to those

performed by the treatment agency, as d irected by the probati on

officer. The defendant will incur costs associated with such

monitor ing, based on ability to pay as determined by the probation

officer.1 Warden concedes that he is raising this objection to his sentence for the first time on appeal.

Thus, we would normally review his claim for plain error. U nited States v. De La Pena-Juarez

, 214

F.3d 594, 600 (5th Cir. 2000). However, because Warden had no opportunity to object to or

comment on the special conditions as imposed in the written order, we will review the district court’s

imposition of special conditions for an abuse of discretion. S ee United States v. Edgin

, 92 F.3d 1044,

1048-49 (10th Cir. 1996) (finding no waiver of argument concerning special condition when

condition was imposed after the court had “resolved all the objections to the presentence report and

had permitted [the defendant] to make a final statement”); see also United States v. Bull, 214 F.3d

1275, 1278-79 (11th Cir. 2000) (stating that defendant properly raised objection to special condition

on appeal when he had no opportunity to object to it at sentencing).

-3- OTHER: The defendant is required to p art icipate in a sex offender

evaluation as directed by the probation officer.

SEX OFFENDER COUNSELING: If deemed appropriate by the sex

offender evaluation, the de fendant is required to participate in sex

offender counseling as directed and approved by the probation officer.

The defendant will incur costs associated with such programs, based

on ability to pay as determined by the probation officer.

OTH ER: The defendant is required to participate in an anger

management evaluation as directed by the probation officer.

ANGER MANAGEMENT COUNSELING: If deemed appropriate

by the anger management evaluation, the defendant is required to

participate in anger management counseling as directed and approved

by the probation officer. The defendant will incur costs associated

with such programs, based on abilit y to pay as determined by the

probation officer.

We review the district court’s imposition of special conditions of supervised release for an

abuse of discretion. United States v. Bird , 124 F.3d 667, 684 (5th Cir. 1997). 1

Warden first argues that by imposing new condi t io ns in its written judgment that were not

discussed at the sentencing hearing, namely his responsibility to pay for the costs of drug treatment

and counseling, sex offender counseling, and anger management counseling, the district court

committed reversible error. Alternatively, Warden argues that the district court impermissibly

delegated authority to the Proba t io n Department to set the amount of payments for the required-4-

treatment and counseling services.

In United States v. Martinez , we held that any conflict between the oral pronouncement of

sentence and the written sentence must be resolved in favor of the oral pronouncement. 250 F.3d

941, 942 (5th Cir. 2001). Warden contends that when the district court added the requirement that

he pay the costs of treatment in the written judgmen t, the court created a confl i ct wi th i ts oral

pronouncement. We disagree. We find the Eleventh Circuit’s holding in U nited States v. Bull

persuasive. 214 F.3d 1275 (11th Cir. 2000), c ert. denied

, 531 U.S. 1056 (2000). In B ull

, the court

rejected the defendant’s argument that the sentencing court erred by including in its written judgment

a requirement for him to contribute to the cost of his mental health treatment imposed as a special

condition of his supervised release. I d. at 1279. The court found that there was no conflict between

the oral pronouncement, which made no mention of costs, and the written judgmen t. Id. ( “The

written order of judgment, imposing the cost o f t reatment upon Bull, does not conflict with the

requi r ement that he attend treatment.”). Cf. United States v. Truscello

, 168 F.3d 61, 63 (2d Cir.

1999) (finding no conflict between oral sentence imposing supervised release and written judgment

articulating the specific conditions of release; “[t]he written judgment simply clarified the meaning

of that sentence by specifying what the supervision was to entail”).

The difference between the two statements made by the district court in this case creates, if

anything, an ambiguity. Thus, we must look to the intent of the sentencing court, as evidenced in the

record. S ee Martinez, 250 F.3d at 942

. I n this case, the requirement that Warden bear the costs of

the ordered treatments is clearly consistent with the district court’s intent that he attend drug

treatment, sex offender, and anger management counseling, as evidenced in the statements made by

the court at the sentencing hearing. Because the provision regarding costs is consistent with the-5-

district court’s intent in imposing the conditions of supervised release, we reject Warden’s argument

on this point.

Warden argues in the alternative that in its written judgment, the district court impermissibly

delegated its authority to the pro bat io n officer by permitting the probation officer to determine

Warden’s “abilit

y to pay” the costs of the relevant t reat ment s. Warden relies on our decision in

United States v. Albro to support his argument. 32 F.3d 173 (5th Cir. 1994). In A lbro

, we held that

any decision as to the amount and manner of restitution payments, including the amount and t iming

of installments, and any other payment details, must be made by the court, rather than a probation

officer. I d. at 174. However, A lbro can be distinguished as it concerns restitution payments, rather

than payment for the costs of drug treatment and other counseling.

Moreover, in Albro

, the probation officer was clearly charged with determining the “manner”

of payments by creating a payment schedule to govern amounts paid to third parties. I d. Here,

however, the probation officer is given only the responsibility to make a determination as to Warden’s

abilit y to pay, a factfinding determination commonly made by probation officers in other contexts.

See, e.g., U.S. S ENTENCING G UIDELINES M ANUAL § 5D1.3(c)(15) (2000) (including as “standard”

condition of supervised release, defendant’s obligation to notify the probation officer “of any material

change in the defendant's economic circumstances that might affect the defendant’s abilit y to pay any

unpaid amount of restitution, fines, or special assessments.”); United States v. Milton

, 147 F.3d 414,

421 (5th Cir. 1998) (discussing probation officer’s obl i gation to determine, for purposes of presentence report, defendant’s abilit y to pay criminal fine). Thus, we reject Warden’s argument and

hold that the district court’s special conditions did not include an unlawful delegation of authority to

the probation officer.-6-

Warden next argues that 21 U.S.C. § 841, the statute under which he was convicted, is

uncon st itutional in light of the Supreme Court’s ruling in A pprendi v. New Jersey

, 530 U.S. 466

(2000). Warden concedes that his argument is foreclosed by our prior ruling in U nited States v.

Slaughter

, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied

, 532 U.S. 10 45 (2001). Because we

cannot overrule an earlier panel’s decision, we reject Warden’s argument. See Tigner v. Johnson

,

264 F.3d 521, 526 (5th Cir. 2001) (“One circuit panel cannot overrule another panel’s decision.”).

For the foregoing reasons, we AFFIRM Warden’s conviction and sentence.