United States v. Gonzalez ( 2021 )

Case: 19-51089 Document: 00516144975 Page: 1 Date Filed: 12/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 27, 2021
No. 19-51089 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Frank Gonzalez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-3387-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Frank Gonzalez pleaded guilty to possessing with intent to distribute
methamphetamine, possessing with intent to distribute heroin, conspiring to
possess with intent to distribute methamphetamine, possessing a firearm as
a felon, and carrying a firearm during and in relation to a drug trafficking
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-51089 Document: 00516144975 Page: 2 Date Filed: 12/27/2021
No. 19-51089
crime. Gonzalez was sentenced to a total 180 months of imprisonment and
10 years of supervised release for all five counts. He contends that the district
court erred by including discretionary conditions of supervised release in the
written judgment that it failed to orally pronounce at sentencing. Because he
failed to object to the alleged discrepancy when given the opportunity during
his sentencing hearing in the district court, our review is for plain error. See
United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020).
To satisfy the constitutional right to be present at sentencing, the
district court must orally pronounce the sentence, including discretionary
conditions of supervised release. United States v. Diggles, 957 F.3d 551, 556-
59 (5th Cir.) (en banc), cert. denied, 141 S. Ct. 825 (2020). “But oral
pronouncement does not mean that the sentencing court must recite the
conditions word-for-word.” United States v. Grogan, 977 F.3d 348, 352 (5th
Cir. 2020). The court may also adopt conditions by reference to the
presentence report (PSR) or a standing order. Id. at 353-54.
While in this case the district court did not read aloud the full text of
the three special conditions that were included in its written judgment, those
conditions were listed in their entirety in the PSR. The district court
confirmed at the outset of the sentencing hearing that Gonzalez had time to
review the PSR with counsel. In context, the district court’s oral mention of
the three conditions is best understood as a shorthand reference and adoption
of the portion of the PSR in which the three special conditions were
recommended. Under the circumstances, we find no true conflict between
the district court’s written judgment and its oral pronouncement, see United
States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006), and accordingly no error,
let alone “plain” error, in Gonzalez’s sentence, see Grogan, 977 F.3d at 352-
54.
Thus, the district court’s judgment is AFFIRMED.
2