United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-20266 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Theapolis Nelson, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:22-CR-98-1 

______________________________ 

Before Smith, Higginson, and Willett, Circuit Judges. 

Per Curiam:*

Theapolis Nelson appeals the district court’s written judgment 

imposing certain supervised-release conditions that the district court did not 

orally pronounce at sentencing. Because some of the written conditions are 

broader than those orally pronounced, we partially VACATE the sentence 

and REMAND for the district court to modify the judgment to conform 

with its oral pronouncement. 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 9, 2023 

Lyle W. Cayce 

Clerk 

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No. 22-20266 

2 

I 

Theapolis Nelson pleaded guilty to a single-count indictment charging 

him with being a felon in possession of a firearm in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2). At sentencing, the district court1

 sentenced 

Nelson to 80 months’ imprisonment and 3 years’ supervised release. The 

court instructed Nelson that while on supervised release he is “not to use 

drugs,” must get an education “of some kind for some good,” and must get 

vocational training. The court further ordered that Nelson contribute half of 

his prison income to his mother who cares for his child. But, after hearing 

Nelson’s objection, the district changed this condition to a suggestion, 

stating that such a contribution would be “a first step to a decent life.” 

The written judgment reiterated the length of incarceration and 

supervised release stated at sentencing. On top of the statutorily mandated 

supervised-release conditions, the district court’s written judgment imposed 

15 “standard conditions” for supervised release: 

1. You must report to the probation office in the federal judicial 

district where you are authorized to reside within 72 hours of 

your release from imprisonment, unless the probation officer 

instructs you to report to a different probation office or within 

a different time frame. 

2. After initially reporting to the probation office, you will 

receive instructions from the court or the probation officer 

about how and when you must report to the probation officer, 

and you must report to the probation officer as instructed. 

_____________________ 

1

 The district court judge, Judge Hughes, assumed senior status in February and is 

no longer hearing cases. See Amended Division of Work Order, Gen. Order No. 2023-03 

(S.D. Tex. Feb. 10, 2023). 

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3 

3. You must not knowingly leave the federal judicial district 

where you are authorized to reside without first getting 

permission from the court or the probation officer. 

4. You must answer truthfully the questions asked by your 

probation officer. 

5. You must live at a place approved by the probation officer. If 

you plan to change where you live or anything about your living 

arrangements (such as the people you live with), you must 

notify the probation officer at least 10 days before the change. 

If notifying the probation officer in advance is not possible due 

to unanticipated circumstances, you must notify the probation 

officer within 72 hours of becoming aware of a change or 

expected change. 

6. You must allow the probation officer to visit you at any time 

at your home or elsewhere, and you must permit the probation 

officer to take any items prohibited by the conditions of your 

supervision that he or she observes in plain view. 

7. You must work full time (at least 30 hours per week) at a 

lawful type of employment, unless the probation officer 

excuses you from doing so. If you do not have full-time 

employment you must try to find full-time employment, unless 

the probation officer excuses you from doing so. If you plan to 

change where you work or anything about your work (such as 

your position or your job responsibilities), you must notify the 

probation officer at least 10 days before the change. If notifying 

the probation officer at least 10 days in advance is not possible 

due to unanticipated circumstances, you must notify the 

probation officer within 72 hours of becoming aware of a 

change or expected change. 

8. You must not communicate or interact with someone you 

know is engaged in criminal activity. If you know someone has 

been convicted of a felony, you must not knowingly 

communicate or interact with that person without first getting 

the permission of the probation officer. 

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9. If you are arrested or questioned by a law enforcement 

officer, you must notify the probation officer within 72 hours. 

10. You must not own, possess, or have access to a firearm, 

ammunition, destructive device, or dangerous weapon (i.e., 

anything that was designed, or was modified for, the specific 

purpose of causing bodily injury or death to another person 

such as nunchakus or tasers). 

11. You must not act or make any agreement with a law 

enforcement agency to act as a confidential human source or 

informant without first getting the permission of the court. 

12. If the probation officer determines that you pose a risk to 

another person (including an organization), the probation 

officer may require you to notify the person about the risk and 

you must comply with that instruction. The probation officer 

may contact the person and confirm that you have notified the 

person about the risk. 

13. You must follow the instructions of the probation officer 

related to the conditions of supervision. 

14. If restitution is ordered, the defendant must make 

restitution as ordered by the Judge and in accordance with the 

applicable provisions of 18 U.S.C. §§ 2248, 2259, 2264, 2327, 

3663A and/or 3664. The defendant must also pay the 

assessment imposed in accordance with 18 U.S.C. § 3013. 

15. The defendant must notify the U.S. Probation Office of any 

material change in the defendant’s economic circumstances 

that might affect the defendant’s ability to pay restitution, 

fines, or special assessments. 

The judgment also imposed 8 “special conditions” for supervised release: 

[1.] You must participate in an outpatient substance-abuse 

treatment program and follow the rules and regulations of that 

program. The probation officer will supervise your 

participation in the program, including the provider, location, 

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modality, duration, and intensity. You must pay the costs of the 

program, if financially able. 

[2.] You may not possess any controlled substances without a 

valid prescription. If you do have a valid prescription, you must 

follow the instructions on the prescription. 

[3.] You must submit to substance-abuse testing to determine 

if you have used a prohibited substance, and you must pay the 

costs of the testing if financially able. You may not attempt to 

obstruct or tamper with the testing methods. 

[4.] You may not knowingly purchase, possess, distribute, 

administer, or otherwise use any psychoactive substances, 

including synthetic marijuana or bath salts, that impair a 

person’s physical or mental functioning, whether or not 

intended for human consumption, except as with the prior 

approval of the probation officer. 

[5.] You must participate in an educational services program 

and follow the rules and regulations of that program. Such 

programs may include high school equivalency preparation and 

other classes designed to improve your proficiency in skills 

such as reading, writing, mathematics, or computer use. You 

must pay the costs of the program. 

[6.] You are required to participate in a vocational training 

program. 

[7.] You must not communicate, or otherwise interact, with 

any known gang members, including the Gangster Disciples, 

without first obtaining the permission of the probation officer. 

[8.] You must meet any legal obligation to support or make 

payments toward the support of any dependent children. 

 Nelson timely appealed. He challenges solely the district court’s 

imposition of standard conditions 2–15 and special conditions 1, 3, 4, 7, and 

8. 

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II 

Due process requires that the district court orally announce any 

conditions for supervised release that are not mandatory under 18 U.S.C. 

§ 3583(d). See United States v. Diggles, 957 F.3d 551, 557, 563 (5th Cir. 2020) 

(en banc). “Accordingly, where the oral pronouncement and written 

judgment conflict, the oral pronouncement controls.” United States v. 

Tanner, 984 F.3d 454, 456 (5th Cir. 2021) (citation omitted). The two conflict 

if the written judgment “broadens the restrictions” of or “imposes more 

burdensome conditions” than the oral pronouncement. United States v. 

Prado, 53 F.4th 316, 318 (5th Cir. 2022) (citations and internal quotation 

marks omitted). “In the event of a conflict, the written judgment must be 

amended to conform with the oral pronouncement.” Id. (citation omitted). 

When, as here, a defendant objects to a condition of supervised release 

“for the first time on appeal, we usually review only for plain error.” Diggles,

957 F.3d at 559 (citation omitted). But if the defendant had no chance to 

object because the condition was not pronounced at sentencing, then our 

review is for abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 

(5th Cir. 2006). 

A 

Nelson first challenges the district court’s inclusion of standard 

conditions 2–15 in the written judgment. He argues that these conditions 

were never pronounced at sentencing and thus the district court erred in 

imposing them. The Government agrees with Nelson except as to standard 

condition 10. 

Standard conditions 2–15 are standard supervised-release conditions 

adopted by the Southern District of Texas in its General Order No. 2017-01 

(S.D. Tex. Jan. 6, 2017). Probation recommended that Nelson comply with 

these conditions in the PSR. Still, the court did not pronounce any of these 

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conditions at sentencing. Nor did it reference or orally adopt the district’s 

standard conditions or the PSR at sentencing. See Diggles, 957 F.3d at 560–61 

& n.5; compare United States v. Martinez, 15 F.4th 1179, 1180–81 (5th Cir. 

2021). Nevertheless, the district court did not abuse its discretion in 

imposing these conditions if they are reconcilable with the district court’s 

oral pronouncement. 

Conditions 2–9 and 11–15 are irreconcilable. These conditions are 

separate and in addition to the conditions given at sentencing. They are new 

and thus more burdensome restrictions. So the district court abused its 

discretion in imposing them. Accordingly, the district court must strike them 

from the judgment. 

By contrast, standard condition 10 (dangerous weapon ban) is mostly 

consistent with the district court’s oral pronouncement that Nelson must not 

commit any other crimes. As a felon, Nelson is prohibited under federal law 

from possessing firearms, ammunition, and destructive devices. See 18 

U.S.C. §§ 922(g)(1) (prohibiting a felon from possessing any firearm or 

ammunition), 921(a)(3) (defining the term firearm to include any destructive 

device). However, the district court must modify this condition “to the 

extent this condition broadens the statutory restriction by prohibiting the 

possession of other dangerous weapons.” United States v. Jackson, No. 20-

50922, 2022 WL 738668, at *3 (5th Cir. Mar. 11, 2022) (per curiam); see also

United States v. Garcia-Marcelo, No. 21-50700, 2022 WL 3684613, at *4 (5th 

Cir. Aug. 25, 2022) (per curiam).2

_____________________ 

2

 Unpublished opinions issued on or after January 1, 1996, are not binding 

precedent but may be considered persuasive authority. See 5th Cir. R. 47.5.4; Ballard v. 

Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006). 

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B 

 The district court likewise did not pronounce any of the special 

conditions at sentencing. Nelson only challenges conditions 1 (drug 

treatment), 3 (drug testing), 4 (psychoactive substances), 7 (gang 

communication), and 8 (child support). 

The Government agrees that conditions 1, 3, and 7 conflict with the 

oral sentence and should be stricken. We agree with the parties. Probation 

recommended special conditions 1, 3, and 7 in the PSR. Again, the district 

court did not orally adopt the PSR or otherwise orally pronounce these 

conditions at sentencing. As these conditions add restrictions on top of the 

pronounced conditions, they conflict with the oral sentence and must be 

excised. 

 The same is true of special condition 8 which requires Nelson to meet 

any legal obligations for child support. The Government argues that this 

requirement is consistent with, and narrower than, the district court’s oral 

instruction that Nelson contribute half of his prison income to his mother to 

care for his child. But while the district court discussed Nelson paying child 

support, it ultimately only suggested that Nelson use his prison income to 

support his child—it did not order him to do so. Thus, this condition must be 

stricken from the judgment to match the oral sentence. 

Special condition 4, however, is consistent with the district court’s 

broad instruction that Nelson is “not to use drugs.” If anything, special 

condition 4 clarifies the broad oral condition by specifying what it meant by 

“use” (purchase, possess, distribute, administer, or otherwise use) and 

which drugs (psychoactive substances). Cf. United States v. Tang, 718 F.3d 

476, 487 (5th Cir. 2013) (per curiam) (There is no conflict if “the written 

judgment simply clarifies an ambiguity in the oral pronouncement.”). We 

thus agree with the Government that there is no conflict between this written 

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condition and the oral pronouncement. Nelson does not otherwise argue how 

this provision conflicts with the oral judgment.3

III 

We VACATE IN PART Nelson’s sentence and REMAND for the 

district court to amend its written judgment in accordance with this opinion. 

_____________________ 

3

 Nelson did not file a reply brief. 

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