* This opinion replaces this panel’s opinion filed on March 17,

2003, see United States v. Vega

, 324 F.3d 798 (5th Cir. 2003), the

mandate of which we held, sua sponte

. In granting rehearing, we

ordered the original opinion with drawn and this opinion filed to

replace it. United States Court of Appeals

Fifth Circuit



## FILED

June 2, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-41019

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE VEGA III,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

___________________________________________________

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Jose Vega III pleaded guilty to one count

of a two-count indictment charging him with possession with intent

to distribute over 1,000 kilograms of marijuana in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A). He now appeals his sentence,

arguing that the district court’s oral and written judgments

conflict beca use the written judgment includes several special1 We review o bjections to special conditions imposed in a

written judgment for abuse of discretion. United States v. Warden

, 291 F.3d 363, 365 n.1 (5th Cir.2002)(explaining that normally

objections raised for the first time on appeal are reviewed for

plain error, but “because [the defendant] had no opportunity to

objec t to or comment on the special conditions as imposed in the

written order, we will review the district court’s imposit ion of

special conditions for an abuse of discretion”).

2 condition s of supervised release that were not mentioned at the

sentencing hearing. For the following reasons, we affirm. 1

I. FACTS AND PROCEEDINGS

Vega alleges that during the sentencing hearing, the district

court never mentioned several special conditions of supervision

that subsequently appeared in the written judgment, including (1)

his responsibility for the costs of drug and alcohol treatment; (2)

a provision requiring inpatient drug treatment, if necessary; (3)

specific drug testing methods; and (4) the requirement that he

comply with the rules and regulations of the drug treatment agency.

Vega argues that becaus e these special conditions are more

restrictive than those originally imposed at sentencing, the oral

and written judgments conflict and the additional requirements

included only in the written judgment must be excised.

II. ANALYSIS

We have previously rejected many of the arguments now

advanced by Vega. First, we have expressly held that imposition of

the costs of drug treatment, even if mentioned for the first time

in the written judgment

, does not create a conflict between the2 Warden , 291 F.3d at 365.

3 Vega also argues that the district court improperly delegated

authority to the probation officer to determine the length of his

drug treatment. Because the district court gave the probation

officer such authority at sentencing, and Vega did not object, our

review is for plain error only. We conclude that any error by the

district court in this regard was not plain or obvious, as we have

not previously addressed this issue. S ee United States v.

Calverley

, 37 F.3d 160, 162-63 (5th Cir. 1994)(en banc), abrogated

in part

, Johnson v. United States , 520 U.S. 461 (1997).

3 written and oral judgments, but “creates, if anything, an

ambiguity.” 2 This ambiguity is resolved by examining the record

for evidence of the sentencing court’s intent. As the requirement

that a defendant bear the costs of his drug treatment is “clearly

consistent” with the court’s intent that he attend treatment, the

two judgments do not conflict and no modification of the sentence

is warranted.

Several of Vega’s remaining arguments are similarly meritless.

First, the district court specifically mentioned inpatient

treatment at sentencing, so its inclusion in the written judgment

is entirely consi stent with the oral sentence. Second, the

requirement that Vega “comply with all the rules and regulations of

the treatment agency” is, for obvious reasons, consistent with the

drug treatment condition ordered at sentencing. 3

The only close issue in this appeal is whether the district

court’s i nclusion of the special condition of “further drugdetection techn iques in addition to those performed by the

treatment agency” in the written judgment conflicts with the oral4 United States v. Martinez

, 250 F.3d 941, 941 (5th Cir. 2001)

(citing Fed. R. Crim. P. 43(a)(“The defendant shall be present

at...the imposition of sentence....”).

5 Id.

6 Id. at 942 (“Because the district court failed to mention

manda tory drug treatment, a special condition, at sentencing, we

remand the case for the district court to amend its written

judgment to its oral sentence.”).

4 sentence

—— which specified only that V ega “participate in a

program for drug and alcohol abuse addiction as required by the

probation office, including inpatient if required.”

Although we have not squarely addressed this question in a

published opinion, we have long held that a defendant has a

constitutional right to be present at sentencing. 4 This

constitutional right is the foundation of the rule that if there is

a conflict between the oral pronouncement and written judgment, the

oral pronouncement controls. 5 Under this reasoning, we have held,

for example, that if the district court fails to mention a special

condition at sentencing, its subseq uent inclusion in the written

judgment creates a conflict that requires amendment of the written

judgment to conform with the oral pronouncement. 6

At Vega’s sentencing hearing, the dis trict court orally

imposed imprisonment, a five-year term of supervised release, and

200 hours of community s ervice. The court also ordered Vega to

“abide by standard conditions [ of supervised release] adopted by

this Court” and to “participate in a program for drug and alcohol

abuse addiction as required by the probation department, including7 See 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(4).

8 Although we require special conditions like drug treatment to

be in cluded in the oral pronouncement of sentence, s ee Martinez

, 250 F.3d at 942, “explicit reference to each and every standard

condition of supervision is not essential to the defendant’s right

5 inpatient if required.” The “standard conditions” that the court

referred to appear in General Order No. H-1996-10 of the United

S tates District Court for the Southern District of Texas ( the

“General Order”). The General Order, which applies throughout the

Southern District, is a fo rmal adoption of the “Mandatory and

Standard Conditions of Supervision for persons placed on Probation

or Supervised Release as set forth in forms AO 245B, 245C, and

245D.”

In this case, the district court entered the written judgment

using AO Form 245B. That form provides, as a condition of

supervision, that “[t]he defendant shall submit to one drug test

within 15 days of release from imprisonment and at least two

periodic drug tests thereafter, as directed by the probation

officer.” Although this condition is mandatory, it may be

suspended if the court determines that the defendant poses a low

risk of future substance abuse. 7 H ere, the district court made no

such determination. Because the court advised Vega that he had to

comply with the standard conditions adopted by the court, which

include the conditions listed on AO Form 245B, we conclude that the

drug testing condition was properly applied to Vega at the

sentencing hearing. 8to be present at sentencing.” U nited States v. Truscello

, 168 F.3d

61 (2d Cir.), cert. denied , 528 U.S. 933 (1999). This difference

in law reflects the distinction between the general applicability

of the standard (and mandatory) conditions and the discretionary

applicability of the special ones.

9 Emphasis added. The brief that the government filed in this

case was bare bones, to say the least. We were not aware of the

General Order until the govern ment filed its petition for panel

rehearing. As we are limited to deciding cases on the briefs and

the record before us, and as the parties sometimes fail to give us

a complete picture of the proceedings below, it would be helpful in

cases like this one if the sentencers of the Southern District

would expressly refer to the General Order at sentencing when they

intend to incorporate its terms into the written judgment later.

6 In addition to adopting particular mandatory and standard

conditions of supervision, the General Order also sets forth eight

special conditions that the district court may apply to the

defendant at the time of sentencing. Special Condition No. 2 of

the General Order, which the district court incorporated verbatim

in the written judgment here, provides:

DRUG TREATMENT: The defendant shall participate in a

program, inpatient o r outpatient, for the treatment of

drug and/or alcohol addiction, dependency or abuse which

may include, but not be limited to urine, breath, saliva

and skin testing to determine whether the defendant has

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

the defendant shall partici pate as instructed and as

deemed nece s sary by the probation officer and shall

comply with a ll 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 such drug-detection techniques, in

addition to those performed by the treatment agency, as

directed by the probation officer . The defendant will

incur costs associated with such drug/alcohol detection

and treatment, based on ability to pay as determined by

the probation officer. 9

Although we initially concluded that the additional “ techniques”7

provision emphasized above is unrelated to the drug treatment

orally ordered at sentenc ing and thus constitutes a conflict

between the written and oral judgments, our re-examination of that

conclusion in our own sua sponte “paper” rehearing of the matter

satisfies us that there is no conflict presented, in either the

legal or constitutional sense.

As Vega was already obligated, as a mandatory condition of his

supervised release, to submit to period ic drug testing at the

direction of th e probation officer, the inclusion in the written

judgment of the language that Vega challenges did not create a

conflict with the oral pronouncement of sentence. To the contrary,

the provision is a means of reconciling the mandatory condition of

drug testing with the special condition of drug treatment, both of

which were properly and clearly appli ed at Vega’s sentencing

hearing. Because drug testing is a likely component of any drug

treatment program, the provision simply clarifies that Vega’s

participation in such a program does not free him from his

obligation to submit to drug testing at the direction of his

probation officer

—— even if the technique chosen by the probation

officer differs from that of the treatment agency. Thus, when the

provision that Vega challenges is considered in its proper context,

it becomes clear that the written judgment does not impose more

restrictive conditions than those orally expressed at sentencing.

That being the case, we affirm Vega’s sentence as imposed.8 III. CONCLUSION

For the foregoing reasons, all aspects of Vega’s sentence,

oral and written, are, in all respects,

AFFIRMED.