IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40521

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES, 

 Defendants - Appellants

Appeals from the United States District Court

for the Eastern District of Texas

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Multiple hurricanes—especially Rita and Ike—ravaged the eastern 

Texas Gulf Coast in the first decade of this century. Untold millions in federal 

disaster assistance helped rebuild those communities. But some people took 

advantage of that taxpayer generosity. A jury found that was the case for the 

three family members charged with fraud in this case: Walter and Rosie 

Diggles and their daughter Anita.

All three now argue that there was insufficient evidence to convict them. 

They also contend that, if their convictions were valid, four conditions of their 

supervised release must be vacated because the district court did not read 

United States Court of Appeals

Fifth Circuit

FILED

June 26, 2019

Lyle W. Cayce

Clerk

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them aloud at sentencing. We affirm their convictions and two of the disputed 

conditions, remanding to adjust one condition and remove another.

I.

The Deep East Texas Council of Governments (DETCOG) is an 

association of local governments in a twelve-county area near the Louisiana 

border.1 Using federal and state grants, DETCOG funds programs geared 

toward housing, the elderly, and the disabled, among other efforts. It also 

administers federal hurricane-relief funds. 

Congress responded to Hurricanes Katrina and Rita, and later Dolly and 

Ike, by appropriating block grants for relief efforts. The Texas Health and 

Human Services Commission administered the funds the state received. 

DETCOG in turn received millions of those dollars, which it used to reimburse 

various service providers in east Texas.

One of those providers was the Deep East Texas Foundation. The 

Foundation operated in Jasper out of the New Lighthouse Church of God in 

Christ. It sought and received reimbursements from DETCOG for a variety of 

services, including “case management” (counseling and assisting individuals

in need of individual financial support); the 21st Century Learning Center (an 

after-school and summer program for at-risk children); and annual conferences 

hosted by the New Lighthouse Church. A “vendor agreement” between 

DETCOG and the Foundation set reimbursement rates for several services, 

including case management and education.

A chart may be helpful. The green arrows represent the flow of federal 

funds. The blue arrows represent the chain of reimbursement requests.

 

1 We recite the facts in the light most favorable to the government given the guilty

verdicts.

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Walter Diggles wore many hats in this reimbursement chain. He (1) ran 

DETCOG as its executive director; (2) was the founder of the Foundation and 

had signature authority over its bank account; and (3) was the pastor at the 

New Lighthouse Church, out of which the Foundation operated its programs. 

Also, one of those programs—the Learning Center—was run by his wife Anita 

and daughter Rosie.

Walter’s multiple roles enabled the fraud. Once the hurricane funds left 

the state agency, Walter could control them the rest of the way. And all it took 

for the state to send money was for Walter to certify that DETCOG was using 

the money properly. For each request for Katrina and Rita funds, Walter

would certify that “all outlays” were “for the purposes set forth” in the grant 

agreement. For the Dolly and Ike grants, he would certify that DETCOG had 

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“completely verified the supporting information/evidence” from its vendors so 

as to “justify the amounts set forth” in the requests for further funding.

But the programs’ expenses did not support many of the amounts 

DETCOG sought. Here are some examples:

The Learning Center: The Foundation’s vendor agreement called for 

reimbursement for “Education & Training” at between $48 and $144 per “unit” 

(the Learning Center treated an hour of instruction as a unit). But the 

Learning Center’s teachers were paid less than $20 per hour. Anita 

nevertheless prepared paperwork requesting reimbursement at rates as high 

as $110 per hour. The Foundation sent that paperwork to DETCOG, where 

Walter would sign off. The rate inflation added up: Between 2009 and 2011, 

the Foundation got roughly $240,000 for education expenses, while paying its

teachers less than $130,000.

The Learning Center’s transportation costs tell a similar story. The 

vendor agreement did not set a unit rate for transportation, but the Learning 

Center charged one: at least $10, and sometimes as high as $17, per student 

for round-trip transportation to and from the Learning Center in vans. The 

designated pick-up areas were mostly in Jasper, and the few in surrounding 

communities were no more than 5–10 miles away. But the reimbursement 

rates meant the Foundation received, in one of the most extreme instances,

nearly $7,500 for four days of transportation costs. Between 2008 and 2011,

the Foundation billed north of $200,000 for transportation despite paying less 

than $30,000 in transportation-related expenses. The government 

acknowledges that those numbers do not include amounts paid to drivers, but 

Learning Center workers who drove the vans were paid around $8 an hour—

nowhere near enough to account for the $170,000 discrepancy.

Case Management: The vendor agreement set rates for case management 

at, as with education, between $48 and $144 per hour. But one case manager 

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testified he was paid just $10 an hour, and another testified she was paid $27. 

Between 2009 and 2011, the Foundation received $150,000 for case 

management expenses but paid case managers just $82,000.

2009 “Closeout”: In 2009, the Foundation sought and received a 

“closeout” payment of $245,000 for unreimbursed expenses. That included a

$116,000 request for the Foundation’s 2008 payroll expenses. But this was 

double billing—the Foundation had already billed for payments to its workers 

throughout 2008.

2010 Conference: Walter’s church held annual conferences, which one 

witness described as akin to revivals. In addition to worship, the conferences 

featured workshops on topics like single parenting and credit repair. For its 

2009 conference, the Foundation sought and received reimbursement for 186 

“units” of training (each workshop attended was a unit, and some attendees 

went to more than one workshop) at $48 each—a total reimbursement just shy 

of $9,000. By way of supporting documentation, the Foundation submitted the 

attendees’ sign-in sheets, which reflected the workshops they went to.

For the 2010 conference, the Foundation got more than four times as 

much: $39,000. But the supporting documentation was a fabrication; it was a 

copy of the 2009 sign-in sheets with just a few additions. The purported 

attendees were the same, and the tops of both sets read “Annual Conference 

July 7-11, 2009.” The difference was that some of the “2010” sign-in sheets had 

blank spots filled in to make it look like attendees went to additional 

workshops as well as those they attended in 2009.

2012 Conference: At its 2012 conference, the church performed health 

screenings. The screening equipment (cholesterol machines and glucometers 

that could be used any number of times, plus one-time-use blood sugar test 

strips) cost about $750. But the Foundation sought and received 

reimbursement at $144 for each of 61 people screened, or $8,784 total.

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Where did the extra money go? Walter, Anita, and Rosie used it for

personal expenses. Over 99% of the money in the Foundation’s accounts was 

from hurricane relief. The Foundation transferred hundreds of thousands of 

those dollars into the New Lighthouse Church’s accounts. And money in the 

church accounts went to pay the defendants’ credit card bills, to write checks 

to cash or to family members, and to pay for other personal expenses.

The grand jury charged Walter with conspiracy to commit wire fraud, 

eleven counts of wire fraud, two counts of theft from a program receiving 

federal funds, and three counts of money laundering. It charged Rosie with 

the conspiracy count, ten counts of wire fraud, and a money laundering count. 

Anita was charged with only the conspiracy count. The jury convicted on all 

counts. The district court sentenced Walter to 108 months. Rosie and Anita 

received below-Guidelines sentences of 54 months. The district court also 

imposed terms of supervised release for each defendant and ordered Walter to 

pay $1.33 million in restitution, with Rosie and Anita jointly and severally 

liable for just over $970,000.

II.

Each defendant argues that the government’s evidence was insufficient 

to find them guilty. We review the evidence “in the light most favorable” to the 

verdict. United States v. Miles, 360 F.3d 472, 476–77 (5th Cir. 2004). We must 

affirm the verdict unless no rational jury could have found the defendants

guilty beyond a reasonable doubt. United States v. Njoku, 737 F.3d 55, 62 (5th 

Cir. 2013).

A.

Walter challenges the sufficiency of the evidence for each count. We 

begin with his arguments that go to all counts and then consider his challenges

to individual ones.

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Walter does not dispute that the Foundation asked for and received more 

than its expenses, but contends that doing so was allowed for two reasons. 

First, he argues that the Foundation charged rates set by its vendor agreement 

with DETCOG. But the jury had good reason to see the vendor agreement as

part of the fraud, not a defense to it (to say nothing of the fact that it set rates 

for teachers and case managers but not, for instance, for transportation or 

health screenings). Walter’s idea appears to be that negotiated rates cannot 

be fraudulently inflated. But he was essentially on both sides of the 

agreement—this was not an arm’s length negotiation. Walter signed the 

vendor agreement for DETCOG in his capacity as executive director; he had 

the last word on the rates and on one occasion rejected an attempt by DETCOG 

employees to lower them. On the other side of the vendor agreement, while 

Walter did not sign on the Foundation’s behalf (its president, R.C. Horn, did),

Walter was the founder of the Foundation, had signature authority over its 

bank accounts, and pastored the church out of which it operated. There is also 

evidence that he held substantial sway over Horn. Walter thus controlled the 

agreed rates. That made the scheme a more sophisticated one, not a lawful 

one.

Walter’s other argument for why the Foundation was allowed to bill 

above costs is based on federal guidance on how nonprofits should treat 

overhead costs. The contract between the Commission and DETCOG cites an 

OMB circular on accounting principles for nonprofits, which says that 

overhead costs may be allocated to reimbursements for services rendered 

under a grant. See OFFICE OF MGMT. & BUDGET, CIRCULAR NO. A-122, Cost 

Principles for Non-Profit Organizations, at 7 (2004) (allowing allocation of costs 

that are “necessary to the overall operation of the institution, although a direct 

relationship to any particular cost objective cannot be shown.”). But even if 

some of the Foundation’s rate inflation was to cover overhead costs allocated 

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to the hurricane-relief grants, there is no reason to think that accounted for 

reimbursements so far above what the Foundation paid for those services.

Plus, no one contemporaneously believed DETCOG was reimbursing the 

Foundation in part for overhead. One of DETCOG’s managers for block-grant 

funds testified that DETCOG employees understood that reimbursements 

could not exceed a vendor’s actual costs for services. Similarly, a memo from 

DETCOG’s controller instructed that the Foundation’s “hourly rate for 

education services and case management should not exceed actual costs.” The 

Foundation’s reimbursement requests, too, purported to bill for the “cost” of 

particular “allowable services,” without any indication that overhead was 

included. The jury reasonably rejected Walter’s overhead-cost defense.

Before getting into Walter’s count-specific arguments, we address one 

more generally applicable issue: intent to defraud. Insufficient evidence of that 

intent would undermine most of Walter’s convictions.2 But there is plenty. 

Walter was the pastor of the church out of which the Foundation operated and 

sometimes paid the Foundation’s employees. So there is good reason to 

conclude that Walter knew both what employees were being paid and at least 

the approximate costs of other services the Foundation provided. He 

nevertheless certified to the Commission that the Foundation’s paperwork 

(which included inflated rates) justified the reimbursements. In one instance 

particularly revealing of Walter’s intent, DETCOG employees grew concerned

during 2009 about the Foundation’s reimbursement rates. They decided to 

reduce them, but Walter instructed that they be put “back the way they were.” 

 

2 See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014) (fraud conspiracy 

under 18 U.S.C. § 1349 requires proof of intent to defraud); United States v. Hoffman, 901 

F.3d 523, 545 (5th Cir. 2018) (same for substantive wire fraud). Walter’s money laundering 

convictions required that the funds he transacted came from a “specified unlawful activity.” 

18 U.S.C. § 1957. The grand jury alleged the fraud conspiracy as that activity, so those 

convictions also require intent to defraud.

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It is hardly surprising that Walter wanted to keep the overbilling gap; he was 

its main beneficiary. Roughly $400,000 went from the Foundation to the 

church accounts, out of which Walter paid over $150,000 in credit card bills, 

paid off a $40,000 loan to an entity run by Walter and his son, and made 

numerous checks out to family members and to cash. The evidence paints a 

compelling picture of Walter’s intent to defraud.

Moving on to his to count-specific arguments, Walter argues that the 

email that is the interstate wire for his first wire fraud count—one he sent 

conditionally approving reimbursement for the church’s 2010 annual 

conference—did not involve a misrepresentation. This misunderstands the 

wire requirement. The wire “need not contain a falsehood”; it need only further 

the fraud scheme (which itself must involve lies). United States v. Hoffman,

901 F.3d 523, 545–46 (5th Cir. 2018). The Count 2 email advanced the fraud 

as it put the Foundation one step closer to obtaining government funds for the 

2010 conference. See id. at 547 (holding that an email that was “a step in 

verifying” costs submitted to the government furthered a fraud scheme). And 

we have already explained that the overall fraud scheme contained numerous 

misrepresentations related to costs, including the ultimate submission of

fabricated paperwork to support requests related to the 2010 conference.

Walter’s other ten wire fraud convictions involve interstate transfers

from the church’s main bank account to his credit cards. These likewise 

furthered the fraud. Indeed, to the fraudster, obtaining the proceeds is not just 

part of the fraud, it is the reason for it. See United States v. Vilar, 729 F.3d 62, 

95 (2d Cir. 2013) (“In as much as [the defendant] used the wire transfers to 

send the money to his own account, the wire transfers were undoubtedly in 

furtherance of the scheme to defraud.”). There is sufficient evidence for all the 

wire fraud convictions. 

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Next, Walter disputes his two convictions for theft from a program 

receiving federal funds. That crime occurs when an agent of a federally funded 

entity steals or “knowingly converts” at least $5,000 of the organization’s 

property. 18 U.S.C. § 666(a)(1)(A). The first of these counts was based on the 

2010 conference (the one with the fabricated sign-in sheets), and the second 

was based on the 2012 conference (the one with the health screenings). As to 

the 2010 conference, we reject Walter’s argument that he was unaware of the 

phony documentation. Along with the evidence generally showing that Walter 

orchestrated the overbilling scheme, Walter approved reimbursements for both 

the 2009 and 2010 conferences despite the nearly identical supporting 

paperwork. When the $39,000 in federal funds arrived at the Foundation, 

Walter promptly wrote a $39,000 check to the church days later.

For the 2012 conference, Walter instructed the Foundation’s president 

(Horn) to cut a $7,500 check to a health service run by Walter’s sister as part 

of the reimbursement. Horn did as he was told, but Walter deposited the check 

into the main church account, which he essentially used as a personal account. 

That conversion, combined with the evidence that the Foundation received 

over $8,000 in reimbursement for health screenings that cost it less than 

$1,000, supports the conviction.

We last address Walter’s money laundering convictions. A section 1957 

crime occurs when a defendant engages in a financial transaction with 

property worth over $10,000, knowing that the property was derived from 

unlawful activity. United States v. Alaniz, 726 F.3d 586, 602 (5th Cir. 2013). 

The statute does not require concealment of funds, id., so Walter’s objection on 

that ground fails. But his argument that the charged funds did not come from

unlawful activity (or at least that he did not know that) do target an element 

of the offense. We consider those objections to each count.

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The first money laundering count involves deposits Walter made 

following the 2010 conference. We have already addressed Walter’s knowledge 

of the fabrication underlying that reimbursement. When, armed with that 

knowledge, Walter deposited the $39,000 check from the Foundation he 

violated section 1957. 

The next two counts relate to the 2009 “closeout” reimbursement, the one 

that double billed for the Foundation’s 2008 payroll. Walter used some of these 

federal funds to purchase CDs, which he later cashed and deposited back into 

the church account. For the reasons we have already recited demonstrating 

Walter’s involvement in, indeed leadership of, the fraud, the jury could find 

that he was not oblivious to the unlawful source of these funds. Walter’s 

transactions with the closeout funds support his section 1957 convictions.3

We uphold each of Walter’s convictions.

B.

We now move to Anita, who was charged and convicted only of 

conspiracy. We have already explained that the evidence supports the jury’s 

finding that Walter orchestrated a scheme to defraud. The sufficiency question 

for Anita is whether she agreed to participate in it, with the intent that it 

succeed. See United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014). 

Direct evidence of an agreement to commit a crime is rare, so 

circumstantial evidence often proves a conspiracy. There is enough of that type 

 

3 Walter’s deposits into the church’s bank account were “monetary transactions” under 

section 1957. See 18 U.S.C. § 1957(f)(1). And although Walter does not raise the issue of 

distinguishing the proceeds of the fraud from the subsequent deposits of those proceeds, we 

note that the fraud was complete once the overbilled funds hit the Foundation’s account, over 

which Walter had signature authority. See United States v. Leahy, 82 F.3d 624, 635 (5th Cir. 

1996) (“Fraudulent schemes produce proceeds, ‘at the latest when the scheme succeeds in 

disgorging the funds from the victim and placing them into the control of the perpetrators.’”

(quoting and emphasizing United States v. Allen, 76 F.3d 1348, 1361 (5th Cir. 1996)). The 

fraud got the money into the Foundation’s account; the money laundering got it into the 

church’s.

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of evidence here—in the form of concerted action, knowledge of the fraud, and 

profiting from it—to support the conviction. Anita and Walter worked together 

to make the overbilling happen: Anita administered the Learning Center, 

submitting the inflated reimbursement requests, which Walter signed off on. 

See United States v. Curtis, 635 F.3d 704, 719 (5th Cir. 2011) (noting that 

“concerted action” is evidence of agreement). Anita knew about the overbilling.

As the person overseeing the Learning Center, Anita could see both sides of 

the ledger. She authorized pay for teachers, signed checks for fuel, and knew 

what the drivers were paid. But she requested reimbursement at higher “cost 

per unit” rates. Last but not least, she benefitted from the fraud, using the 

proceeds to pay for her car and rent among other things. See id. at 719 

(recognizing that receiving a substantial share of a fraud conspiracy’s proceeds 

is evidence of involvement). The jury reasonably found Anita guilty of 

conspiracy. 

C.

Rosie challenges her convictions for conspiracy and wire fraud. Her case 

is closer than Anita’s. Both were supervisors at the Learning Center, and there 

is evidence that Rosie too knew what its actual costs were. Yet unlike with 

Anita, there is no evidence that Rosie handled reimbursement requests. That 

is, while Anita knew and facilitated both sides of the ledger, Rosie appears only 

to have participated in the Learning Center’s operations, not its funding.

But as long as the evidence supports a reasonable inference that Rosie 

knew of the overbilling scheme, her “minor participation” in it can support her 

convictions. United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009). Rosie 

was at the Learning Center daily and told employees what to do. She made 

hiring decisions and ran staff meetings. Rosie was thus integrally involved in 

the functioning of the Learning Center, without which a substantial portion of 

the overbilling scheme would not have been possible. If Rosie knew that Anita 

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was submitting inflated reimbursement requests for Walter to sign off on, the 

jury could conclude from her supervision of the Learning Center that she had 

agreed to help facilitate the fraud.

Although the proof of Rosie’s knowledge is weaker than it is for the other 

defendants, it is enough for us to uphold the verdict of the jury that sat through 

this nine-day trial. Rosie was married to one conspirator, and her daughter 

was another. Those family ties are insufficient on their own to prove she joined 

the conspiracy, but they are one factor that can be considered along with other 

indications that she knew about the fraud. United States v. Willett, 751 F.3d 

335, 340 (5th Cir. 2014). Foremost among that additional evidence, Rosie knew 

that hurricane money was travelling from DETCOG into the church accounts, 

which she then used for personal expenses. Rosie admitted that she knew 

Walter ran DETCOG and that the Foundation got grant funds from DETCOG. 

She also knew that money in the church accounts came from the Foundation; 

on one occasion, she deposited a $30,000 check from the Foundation into the 

church’s youth department account. She had signature authority on that 

account, almost all the money in which came from the Foundation, as well as 

the church’s main account. The jury could infer from her access to those 

accounts that she knew the church received hundreds of thousands of dollars 

from the Foundation.

She also benefitted from the fraud. In addition to what she derived from 

Walter’s use of proceeds to pay credit card bills, Rosie made around $13,000 in 

cell phone payments (among others) from the youth department account. She 

also made $15,500 in credit card payments from the account for her ministry, 

“Heart to Heart,” where nearly all the money came from the youth department 

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account.4 In the absence of overbilling, there would have been no money left 

over for personal expenses like these. Rosie’s awareness and use of the extra 

cash coming from the Foundation supports the inference that she knew the 

Foundation was overbilling.

Statements Rosie made to the FBI could also be one of the puzzle pieces 

that the jury concluded fit together to show guilt. When asked about Walter’s 

role at the Foundation, Rosie said that Walter had nothing to do with it beyond 

providing advice when requested, and specifically that Walter did not help the 

Foundation get any grant money. She also said that the money in the Heart 

to Heart account came from donations—that is, not the Foundation. The jury 

could have taken those false statements to indicate that Rosie knew she ought 

to hide her awareness of the scheme. See United States v. Villarreal, 324 F.3d 

319, 325 (5th Cir. 2003).

We uphold each of Rosie’s convictions.

III.

Only Rosie appeals the prison time she received. She argues that the 

district court misapplied a two-level enhancement added when “the offense 

involved . . . a misrepresentation that the defendant was acting on behalf of a 

charitable, educational, religious, or political organization, or a government 

agency.” U.S.S.G. § 2B1.1(b)(9)(A). The enhancement clearly applies if a

defendant lied about having any connection to a listed organization. Less 

obviously, it also applies if a defendant had authority to act for a charity but 

diverted some of the funds the nonprofit received for “personal gain.” Id. cmt. 

 

4 These credit card and phone payments were the bases for Rosie’s ten individual wire 

fraud convictions. As we find enough evidence that she joined the scheme to defraud, these 

payments were one way she received the benefit of that fraud. They thus furthered the 

scheme and support her wire fraud convictions. See Vilar, 729 F.3d at 95.

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n.8(B); see United States v. Reasor, 541 F.3d 366, 372 (5th Cir. 2008). That is 

the basis for the enhancement here.

Rosie argues that although Walter solicited funds for DETCOG, and 

Anita solicited funds for the Learning Center, she never solicited funds so could 

not have made a covered misrepresentation. This ignores that the Guidelines 

hold Rosie responsible for the foreseeable acts of her coconspirators. U.S.S.G. 

§ 1B1.3(a)(1)(B). The requests for government funds were foreseeable, indeed 

integral, parts of the conspiracy. As we have upheld Rosie’s conviction as a 

coconspirator, Walter’s and Anita’s solicitations are attributable to her. There 

was no Guidelines error.

IV.

Each defendant challenges the four special conditions of supervised 

release listed in their judgments. These conditions require each defendant to: 

(1) “pay any financial penalty that is imposed by the judgment”; (2) “provide 

the probation officer with access to any requested financial information for 

purposes of monitoring restitution payments and employment”; (3) “not incur 

new credit charges or open additional lines of credit without the approval of 

the probation officer” until full payment is made; and (4) “not participate in 

any form of gambling” until full payment is made. The defendants’ objection 

is that the district court did not officially recite these conditions at sentencing. 

Instead, the judge told them that the conditions recommended in their

Presentence Reports, which included the four special conditions, would be

conditions of their supervised release. He even identified the page numbers of 

the PSRs listing the conditions. The government nonetheless concedes that by 

failing to “orally recite the special conditions one by one,” the district court 

erred, warranting removal of the four special conditions from the defendants’ 

judgments.

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The requirement that a judge orally state a sentence is a product of the 

defendant’s constitutional right to be present at sentencing. United States v. 

Martinez, 250 F.3d 941, 942 (5th Cir. 2001). To preserve that right, the oral 

pronouncement controls over a conflicting written judgment. United States v. 

Mudd, 685 F.3d 473, 480 (5th Cir. 2012). A true conflict is not required; 

including an unpronounced aspect of the sentence in the written judgment may 

“broaden” the oral sentence and thus “conflict” with it. United States v. RivasEstrada, 906 F.3d 346, 350 (5th Cir. 2018). We have been strict about this 

requirement, recently holding that a district court abused its discretion in 

telling the defendant only that the conditions listed in the PSR would be 

imposed. Id. at 350–51. 

Rivas-Estrada is difficult to reconcile with older caselaw holding that 

written notice of the conditions at sentencing suffices. See United States v. 

Rouland, 726 F.3d 728, 734 (5th Cir. 2013) (upholding practice in which the 

government moves at sentencing to admit an exhibit listing special conditions,

even though the court does not individually recite them); see also United States 

v. Al Haj, 731 F. App’x 377, 379 (5th Cir. 2018) (finding no error when 

defendant signed a paper listing the conditions). The need for notice underlies 

the oral pronouncement requirement. Rouland, 726 F.3d at 733–34 (5th Cir. 

2013).5 When a sentencing judge makes no mention, either directly or 

indirectly, of a condition, the lack of notice deprives the defendant of an 

 

5 More precisely, whether the defendant had notice of a special condition determines 

the standard of review. Without adequate notice, discrepancies between the written 

judgment and the oral pronouncement are reviewed for abuse of discretion; with it, they are 

reviewed for plain error. Rivas-Estrada, 906 F.3d at 348–49; Rouland, 726 F.3d at 733–34. 

But this determination is the “critical” one. Rivas-Estrada, 906 F.3d at 348; see Rouland, 

726 F.3d at 734 (accepting defendant’s concession that an unpronounced special condition did 

not affect his substantial rights, as necessary for reversal under plain error review).

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opportunity to object. But the defendant has that opportunity when the court 

referred to a list of the conditions being imposed. Id. at 734.

The only difference between this case and Rouland is that the referenced 

lists of the Diggles’ conditions were their Presentence Reports rather than a 

separate document. It is hard to see why that makes a difference. But see 

Rivas-Estrada, 906 F.3d at 349–50 (framing the district court in Rouland as 

having done “more than the minimum” by offering a “unique chance to object”).

One of the first questions a court typically asks at sentencing is whether the 

defendant has reviewed the PSR. The court followed that standard script in 

this case. As the key sentencing document, the PSR is also available at the 

hearing. The defendant thus has written notice of the conditions and an 

opportunity to object both when a court refers to a list in the PSR (especially 

when it does so by page number as happened here) and when it refers to 

Rouland’s separate exhibit listing the conditions.

But we are bound to follow Rivas-Estrada’s view that referring to the 

PSR is not enough, which is why the government concedes. We are not, 

however, required to follow the government’s overall concession on this issue. 

United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). Our “independent 

review,” id., reveals no conflict between the oral sentence and the written one 

for three of the disputed special conditions. One of them is so obviously in tune 

with the oral sentence that it cannot be said to have created a conflict. Two 

others, despite being described as special conditions, are actually standard 

conditions (though one needs a slight adjustment). And an unannounced

standard condition does not create a conflict. Rivas-Estrada, 906 F.3d at 348.

At this point, some background on the types of supervised release 

conditions is useful. Mandatory conditions are required by statute. U.S.S.G. 

§ 5D1.3(a). Standard conditions are “recommended” in all circumstances. Id. 

§ 5D1.3(c). As both are “implicit in the very nature of supervised release,” they

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are presumed to be part of the judgment and need not be orally pronounced. 

United States v. Torres-Aguilar, 352 F.3d 934, 936 (5th Cir. 2003) (quoting 

United States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999)). In contrast, special 

conditions are ones that “may be appropriate” on a case-by-case basis, U.S.S.G.

§ 5D1.3(d), and that ad hoc applicability warrants putting defendants on notice 

at sentencing by reading special conditions aloud.

The key is that sometimes a condition labeled special is really a standard 

condition. See Rouland, 726 F.3d at 735 (“[S]pecial conditions may be 

tantamount to standard conditions under the appropriate circumstances, 

thereby precluding the need for an oral pronouncement.”). Aside from being 

potentially “appropriate” in any case, the special conditions in section 5D1.3(d) 

are “recommended” in certain circumstances. And when a condition is 

recommended, it is essentially a standard condition and thus need not be orally 

pronounced. Torres-Aguilar, 352 F.3d at 937–38. That the Guidelines would 

still call that condition special is “irrelevant.” Id. at 937 (quoting United States 

v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002)).

Under this principle, the access-to-financial-information condition is a 

standard condition. It is recommended by section 5D1.3(d) when restitution is 

ordered, which it was for each defendant. U.S.S.G. § 5D1.3(d)(3). As a result, 

the district court did not err in failing to recite this standard condition at 

sentencing.

The Guidelines also recommend a no-new-credit condition when 

restitution is ordered. U.S.S.G. § 5D1.3(d)(2). So a prohibition on new credit

was implicit in the defendants’ oral sentences. But the Guidelines version 

prohibits new credit “unless the defendant is in compliance with the payment 

schedule.” Id. The defendants’ written judgments set up a monthly payment 

schedule but, in contrast to the Guidelines, prohibit new credit “unless 

payment . . . has been made in full.” The written judgments thus broaden the 

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extent of the prohibition; under the Guidelines version, the defendants could 

open new lines of credit so long as they keep up with their payments, but under 

the written judgment, they can open new lines of credit only once they pay the 

full amount of restitution. We remand for the district court to reform the 

written no-new-credit condition to match the one implied by the oral sentence 

of restitution—that is, the Guidelines version. See United States v. Mireles, 

471 F.3d 551, 558 (5th Cir. 2006) (“If a conflict exists, the appropriate remedy 

is remand to the district court to amend the written judgment to conform to 

the oral sentence.”).

As for the condition requiring payment of financial penalties, we do not 

see how it could conflict with an oral sentence imposing those penalties. See 

United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (explaining that a 

written condition does not conflict with an unpronounced condition if the 

condition “is clearly consistent with the district court’s intent . . . as evidenced

in the statements made by the court at the sentencing hearing”). Requiring a 

defendant to make those payments is consistent with, if not essential to, those 

penalties. Indeed, a “special” condition requiring payment of restitution is 

largely unnecessary. Making restitution payments is a mandatory condition 

of supervised release, as the defendants’ written judgments also reflect. 

U.S.S.G. § 5D1.3(a)(6). This may show that the “special” condition was for the 

most part redundant (it just adds payment of the special assessment, an 

amount that pales in comparison to restitution), but it also shows that it does 

not conflict with the rest of the sentence.

We do, however, vacate the no-gambling condition. The Guidelines do

not include it as a condition recommended if restitution is ordered. And 

forbidding gambling is not so “clearly consistent” with an oral pronouncement 

of restitution as to be reasonably encompassed within that pronouncement. 

Contrast Warden, 291 F.3d at 365 (holding that a written condition requiring

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defendant to pay for drug treatment was clearly consistent with a pronounced 

condition requiring the defendant to get drug treatment).

* * *

We AFFIRM the judgments of conviction, VACATE the “no-new-credit” 

and “no-gambling” conditions for the supervised release terms, and REMAND 

for the district court to amend its written judgments by (1) reforming the nonew-credit condition to conform to section 5D1.3(d)(2) of the Guidelines, and 

(2) removing the no-gambling condition.

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