United States v. Richard McDaniel ( 2013 )

Case: 13-10397 Document: 00512435312 Page: 1 Date Filed: 11/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10397
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 8, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
RICHARD REED MCDANIEL,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:12-CR-107-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Richard McDaniel pleaded guilty, pursuant to a written plea agreement,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-10397
of conspiring to possess and utter counterfeit securities in violation of 18 U.S.C.
§§ 371 and 513(a) and was sentenced within the sentencing guidelines to
thirty-seven months of imprisonment and a three-year term of supervised
release (“SR”). McDaniel waived the right to appeal his conviction and sen-
tence and to challenge his conviction or sentence in any collateral proceeding,
reserving only the right to appeal a punishment in excess of the statutory max-
imum and to raise a claim based on ineffective assistance of counsel.
McDaniel does not attack his conviction or sentence on appeal but argues
only that the written judgment should be reformed because it contains a spe-
cial condition of SR that was not pronounced at sentencing. He also claims
that his challenge is not barred by the appeal waiver; he raises no challenge to
the validity of the waiver.
At sentencing, the court pronounced several special conditions of SR,
including that McDaniel “shall participate in a program approved by the
United States Probation Office for the treatment of narcotic, drug, or alcohol
dependency.” McDaniel did not object to that condition and does not challenge
it on appeal. The written judgment correctly reflects that one of the special
conditions of SR is that McDaniel “participate in a program (inpatient and/or
outpatient) approved by the U.S. Probation Office for treatment of narcotic,
drug, or alcohol dependency”; the written judgment adds “which will include
testing for the detection of substance use or abuse.” It is the addition of that
language that, McDaniel maintains, creates a conflict with the oral judgment.
We disagree. Although where a written judgment contains a condition
of SR that was not in the oral pronouncement of sentence, the written
judgment should be reformed by deleting the condition that was not orally pro-
nounced, United States v. Vega, 332 F.3d 849, 852−53 (5th Cir. 2003), if the
differences between the oral and written judgments “create merely an
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No. 13-10397
ambiguity . . . we must look to the intent of the sentencing court, as evidenced
in the record to determine the defendant’s sentence,” United States v. Torres-
Aguilar, 352 F.3d 934, 935 (5th Cir. 2003) (internal quotation marks and
citation omitted).
The record reflects that drug testing is both a special condition and a
mandatory condition of SR. The mandatory condition requires McDaniel to
“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.”
Thus, the inclusion of the special drug-testing condition does not significantly
broaden the restrictions or responsibilities of SR, so there is no conflict that
warrants remand. See United States v. Mireles, 471 F.3d 551, 558 (5th Cir.
2006); Vega, 332 F.3d at 852−54.
Consequently, the appeal waiver applies. Cf. United States v. Rosales,
448 F. App’x 466, 466−67 (5th Cir. 2011) (remanding for correction of a clerical
error in the written judgment notwithstanding an enforceable appeal waiver).
The judgment is AFFIRMED.
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