United States v. Baker ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4720
DEWEY ALAN BAKER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-5)
Submitted: January 29, 2003
Decided: March 14, 2003
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BAKER
OPINION
PER CURIAM:
Dewey Alan Baker pled guilty to (1) permitting a minor to engage
in sexually explicit conduct for purposes of production of visual
depictions to be transported in interstate commerce in violation of 18
U.S.C. § 2251(b) (2000); (2) transportation of child pornography in
interstate commerce in violation of 18 U.S.C. § 2252A(a)(1) (2000);
and (3) possession of child pornography that had been shipped in
interstate commerce in violation of 18 U.S.C. § 2252A(a)(5)(B)
(2000). Baker was sentenced to the mandatory minimum sentence
under 18 U.S.C. § 2251(b), 120 months imprisonment, and three
years of supervised release.
The presentence report prepared in Baker’s case recommended that
eleven special conditions be imposed as terms of the supervised
release. The second proposed condition contained in the presentence
report stated, "The defendant shall cooperatively participate in an
evaluation and a mental health treatment program with emphasis on
sex offender treatment at the discretion of the probation officer. Treat-
ment may include physiological testing such as the polygraph and
penile plethysmograph, and the use of prescribed medications." Baker
did not object to this term in the presentence report. At sentencing,
without objection by Baker, the district court imposed the eleven con-
ditions of supervised release recommended in the presentence report.
In its oral pronouncement, however, the court phrased the second con-
dition, "Now the conditions of supervised release are the standard
ones adopted by the Court, that the defendant cooperatively partici-
pate in an evaluation and mental health treatment program with
emphasis on sex offender treatment, at the discretion of the probation
officer. That treatment may include testing and the use of prescribed
medicines." The written judgment, entered fourteen days after the
sentencing hearing, included as a term of supervised release, "The
defendant shall cooperatively participate in an evaluation and a men-
tal health treatment program with emphasis on sex offender treatment
at the discretion of the probation officer. Treatment may include
physiological testing such as the polygraph and penile plethysmo-
graph, and the use of prescribed medications." Baker asserts on
appeal that the written judgment has changed the terms of supervised
UNITED STATES v. BAKER 3
release pronounced orally at sentencing in violation of Fed. R. Crim.
P. 43. We disagree.
This court reviews legal issues concerning sentencing de novo.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). When
there is a conflict between the written judgment and a sentence
announced in court, the oral pronouncement of sentence controls.
United States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965). When
there is an ambiguity in the oral pronouncement of a sentence, the
written judgment is used to resolve the ambiguity. Payne v. Madigan,
274 F.2d 702, 704-05 (9th Cir. 1960), aff’d, 366 U.S. 761 (1961). The
district court’s power to amend a sentence does not extend to a situa-
tion where the district court judge simply changes his mind about the
sentence imposed. United States v. Cook, 890 F.2d 672, 675 (4th Cir.
1989).
Both the oral and written pronouncement of sentence permit treat-
ment and testing. The written judgment does not require any particu-
lar test; it simply adds specificity by listing two particular tests as
examples of "testing" that may be administered as part of Baker’s
"treatment." We find that the difference between the oral and written
sentence was, at most, a clarification of the sentence that did not alter
its terms or scope. Moreover, the change did not affect Baker’s sub-
stantial rights. See United States v. Olano, 507 U.S. 725, 732 (1993).
Accordingly, we affirm the sentence imposed by the district court
in the written judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid in the decisional process.
AFFIRMED