United States v. Emerson , 231 F. App'x 349 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 18, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-11123
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TIMOTHY JOE EMERSON
Defendant-Appellant
----------------------
Appeal from the United States District Court
for the Northern District of Texas
(6:98-CR-103)
----------------------
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
WIENER, Circuit Judge*:
After being convicted, Defendant-Appellant Timothy Joe
Emerson was sentenced to a term of imprisonment and a term of
supervised release. In the written entry of judgment, the
district court imposed four special conditions of supervised
release on the defendant. The district court, however, had
failed to pronounce these four conditions orally during Emerson’s
sentencing hearing.
After serving his full term of imprisonment, Emerson was
*
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this opinion should not be published and is not precedent except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.
released and reported to the United States Probation Office,
where he was told that he had to abide by the four special
conditions. Emerson refused, contending that he was relieved of
these obligations by the district court’s failure to impose them
orally at sentencing.
In response, the government filed a motion for the district
court to hold a modification hearing and amend the conditions of
Emerson’s supervised release by orally adding the four special
conditions. The district court held the modification hearing and
orally imposed the special conditions at that time, after finding
that they were warranted by Emerson’s criminal history.
Emerson now appeals this modification of his supervised
release. Satisfied that the district court did not commit
reversible error, we affirm.
I. FACTS AND PROCEEDINGS
In August 2002, a federal grand jury indicted Emerson on
three counts of possessing a firearm while under a restraining
order, in violation of 18 U.S.C. §§ 922(g)(8), 924(a)(2). That
October, a jury returned a guilty verdict on all three counts.
In January 2003, the district court held a sentencing hearing, at
which time it sentenced Emerson to thirty months imprisonment and
three years of supervised release.
During the sentencing hearing, the district court stated,
2
“Upon your release from incarceration, I am ordering that you
serve a 3-year term of supervised release. You will get a copy
of the judgment so you will know what the conditions of
supervision are. There are some standard conditions, as well as
special conditions.” The district court, however, never
identified or expressly imposed any special conditions during the
sentencing hearing.
On the same day as the sentencing hearing, the district
court rendered its written entry of judgment. In the written
judgment, the district court imposed the following four special
conditions:
1. The defendant shall participate in sex offender
treatment services as directed by the U.S. Probation
Officer until successfully discharged. These services
may include pyscho-physiological testing to monitor the
defendant’s compliance, treatment progress, and risk to
the community. The defendant is further ordered to
contribute to the costs of services rendered (co-
payment) at a rate of at least $10.00 per month.
2. The defendant shall not access or loiter near
school grounds, parks, arcades, playgrounds, amusement
parks, or other places where children under the age of
18 may frequently congregate unless approved in advance
by the U.S. Probation Officer.
3. The defendant shall neither seek nor maintain
employment or volunteer work at any location and/or
activity where minors under the age of 18 would
congregate without prior permission of the U.S.
Probation Officer.
4. The defendant shall not date or befriend anyone
who has children under the age of 18, unless approved
3
in advance by the U.S. Probation Officer.
Emerson completed his term of incarceration in April 2005
and began to serve his term of supervised release. The following
month, he met with U.S. Probation Officer Paul Grover. Emerson
and Grover reviewed the conditions of supervised release
contained in the written entry of judgment, and Emerson signed an
acknowledgment of these conditions.
Approximately two weeks later, Grover went to Emerson’s home
to discuss sex offender programs. At this time, Grover was
informed by Emerson that, as he had not been provided notice of
the four special conditions during his sentencing hearing, he
considered that they were not applicable to him, so he would not
comply with them. Three months later, Emerson refused to
stipulate to a joint modification of his supervised release to
include the special conditions.
In September 2005, Grover filed a petition requesting that a
summons be issued and a hearing held to modify the conditions of
Emerson’s supervised release. Grover specifically requested that
the same four terms originally included in the written entry of
judgment be imposed orally. Grover ventured that these
modifications were necessary because (1) they were part of the
original judgment, and (2) as reflected in the original Pre-
Sentence Investigation Report (“PSR”), Emerson had a prior arrest
4
and conviction for sexual assault against a minor. The
government subsequently filed its own motion to amend the
conditions of Emerson’s supervised release, echoing Grover’s
concerns.
Later that month, the district court held a hearing on the
motions to amend, and Emerson was present. U.S. Probation
Officers Ricky Chittum, who had prepared the PSR, and Grover, who
was handling Emerson’s supervised release, testified at the
hearing.
Chittum testified that (1) the PSR included information that
Emerson had pleaded guilty in 1987 to sexually assaulting his
eight-year old step-daughter by digitally penetrating her vagina
over 100 times, which he was sentenced to a ten-year term of
deferred adjudication; (2) based on his conversations with
Emerson prior to learning the details of the sexual assault
offense, he understood that Emerson did not accept responsibility
for the offense, explaining that he was only teaching his step-
daughter to perform self-breast examinations; (3) he knows from
his professional experience with sex offenders that they have a
recidivism rate of approximately 70% and thus are likely to re-
offend; and (4) the addition of the four special conditions was
necessary in Emerson’s case to meet the objectives and goals of
supervised release.
5
On cross-examination, Chittum acknowledged that Emerson’s
trial counsel had not been provided with pre-sentencing notice
that the four special conditions were being sought, because the
special conditions did not appear in the PSR, but only in
Chittum’s sentencing recommendation to the district court.
Grover recounted the facts and circumstances surrounding
Emerson’s post-incarceration opposition to the special conditions
and acknowledged that he was unaware whether Emerson had received
a copy of the written supervised release conditions prior to
Grover’s visit. He also testified that Emerson owned two
computers, which could easily be used to access child
pornography, and that, while Emerson was visiting his mother at
her retirement home in May 2005, he had contact with his ten-year
old daughter, in violation of his divorce decree. Lastly, Grover
recommended that the district court modify the terms of Emerson’s
supervised release to include the four special conditions
originally included in the district court’s written entry of
judgment.
At the conclusion of the modification hearing, the district
court granted the motions to amend and modified Emerson’s
supervised release conditions to add four special conditions that
were substantially identical to the ones contained in the
original written entry of judgment.
6
Emerson timely filed a notice of appeal.
II. LAW AND ANALYSIS
A. Standard of Review
We review a district court’s decision to impose
discretionary terms of supervised release for abuse of
discretion.1 Questions concerning statutory interpretation,
however, are reviewed de novo.2
B. Merits
1. Presence at Sentencing
Emerson’s initial issue on appeal is his contention that the
district court’s original imposition of the four special
conditions solely by way of a written judgment violated his
constitutional right to be present at sentencing, such that the
four conditions cannot be considered as part of his original
sentence. We agree.
A defendant has a constitutional right to be present at his
sentencing.3 This right stems from the Confrontation Clause of
the Sixth Amendment, but is also protected by the Due Process
Clause of the Fifth Amendment when the defendant is not actually
1
United States v. Ferguson, 369 F.3d 847, 852 (5th Cir.
2004).
2
United States v. Naranjo, 259 F.3d 379, 381 (5th Cir. 2001).
3
United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006).
7
confronting witnesses or evidence against him.4 It has also been
codified in Federal Rule of Criminal Procedure 43(a)(3).5 Thus,
if a written entry of judgment conflicts with an oral
pronouncement at a sentencing hearing, the oral pronouncement
controls and the written entry of judgment must be conformed to
the oral pronouncement.6
If the differences between the two are merely ambiguities,
we look to the district court’s intent to determine the actual
sentence.7 We have previously held, however, that such a
difference in a special condition of supervised release presents
an actual conflict, not just an ambiguity, for sentencing
purposes.8
Here, all four of the conditions at issue are special
conditions. Thus, they present conflicts between the oral
pronouncement and the written entry of judgment. Accordingly,
the district court erred in imposing the four conditions in its
written entry of judgment without having announced them at
4
Id. at 381.
5
Fed. R. Crim. P. 43(a)(3).
6
Bigelow, 462 F.3d at 381, 383.
7
Id. at 381.
8
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)
(concluding that participation in a drug treatment program was a
special condition and thus presented a conflict).
8
Emerson’s sentencing hearing. Therefore, Emerson’s original
sentence must be redacted to conform to the oral pronouncement at
his original sentencing hearing. The four special conditions are
therefore excised from Emerson’s original sentence.
Notwithstanding the fact that the original imposition of the
four special conditions violated his constitutional rights,
Emerson offers no valid reason why the district court could not
lawfully modify his sentence at a post-incarceration hearing, as
permitted under 18 U.S.C. § 3583(e). Thus, to the extent that
any such argument might exist, Emerson has waived it.9
2. Modification Hearing
Emerson’s second issue on appeal is his contention that the
district court’s post hoc order modifying the terms of his
supervised release violated United States Sentencing Guidelines
(“U.S.S.G.”) § 5F1.5, because the four special conditions did not
have a “reasonably direct relationship” to the offense for which
he was convicted.
Section 3583(e)(2) vests a district court, after considering
the factors set forth in § 3553(a), with broad discretion to
modify a defendant’s conditions of supervised release by adding
special conditions at any time prior to the expiration or
9
United States v. Valles, 484 F.3d 745, 758 (5th Cir. 2007).
9
termination of the term of supervised release. In doing so, the
district court must afford the defendant the procedural
safeguards specified in Federal Rule of Criminal Procedure
32.1(c), and the special conditions must be reasonably related to
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant, (2) the need to afford
adequate deterrence to criminal conduct, (3) the need to protect
the public from further crimes of the defendant, and (4) the need
to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner.10 To the extent that the district court
does impose special conditions, they may not involve a greater
deprivation of liberty than is reasonably necessary to achieve
the need to deter criminal conduct, protect the public, and
provide the defendant with training, care, or correctional
treatment.11
One of the special conditions that a district court has at
its disposal is an “occupational restriction.” U.S.S.G. § 5F1.5,
however, imposes a higher standard for the imposition of
occupational restrictions.12 Section 5F1.5 specifically
10
18 U.S.C. § 3583(e)(2).
11
Id.12
United States v. Mills, 959 F.2d 516, 519 (5th Cir. 1992).
10
provides:
(a) The court may impose a condition of probation or
supervised release prohibiting the defendant from
engaging in a specified occupation, business, or
profession, or limiting the terms on which the
defendant may do so, only if it determines that:
(1) a reasonably direct relationship existed
between the defendant’s occupation, business, or
profession and the conduct relevant to the offense
of conviction; and
(2) imposition of such a restriction is reasonably
necessary to protect the public because there is
reason to believe that, absent such restriction,
the defendant will continue to engage in unlawful
conduct similar to that for which the defendant
was convicted.
(b) If the court decides to impose a condition of
probation or supervised release restricting a
defendant’s engagement in a specified occupation,
business, or profession, the court shall impose the
condition for the minimum time and to the minimum
extent necessary to protect the public.13
The purpose behind an occupational restriction is not to punish
the defendant, but to prevent the defendant’s continued or
repeated illegal activities while avoiding a bar to employment
that exceeds that needed to achieve the result.14
Emerson contends that the second and third special
conditions (i.e., access to where children congregate and
employment where children congregate) are impermissible
13
U.S.S.G. § 5F1.5 (emphasis added).
14
Mills, 959 F.2d at 519.
11
occupational restrictions. This contention is based on the
“reasonably direct relationship” language of § 5F1.5(a)(1).
Emerson asserts that, as his offense of conviction was possessing
a firearm while under a restraining order, these two prohibitions
are not reasonably related to his firearm conviction. Rather, he
insists, these occupational restrictions were sought because of
his prior sexual assault conviction and are reasonably related
only to that offense. Thus, contends Emerson, § 5F1.5 disallows
the second and third special conditions imposed by the district
court. We disagree.
Emerson glosses over the fact that § 5F1.5 only applies to
prohibiting a defendant from engaging in “a specified occupation,
business, or profession, or limiting the terms on which the
defendant may do so.”15 A “specified occupation” as used in §
5F1.5 is one that is the defendant’s primary means of supporting
himself, not any endeavor from which the defendant has merely
earned some money.16 Neither is § 5F1.5 concerned with whether a
special condition might possibly deprive the defendant of a
potential occupational opportunity in the future. Rather, its
15
U.S.S.G. § 5F1.5 (emphasis added).
16
United States v. Paul, 274 F.3d 155, 171 n.18 (5th Cir.
2001) (providing that if the defendant’s “primary means of
supporting himself” were involved, then he would entitled to the
higher degree of scrutiny for occupational restrictions under §
5F1.5).
12
focus is on whether a defendant would be deprived of his pre-
existing primary occupation.
These conclusions are supported by the purpose of § 5F1.5.
Conditions that would impose occupational restrictions are held
to a higher standard because Congress did not want to deprive
defendants of their livelihoods without significant justification
and thereby mete out additional punishment.17 By the same token,
nothing suggests that Congress had any intention of imposing a
higher standard on the imposition of restrictions with merely
speculative future occupational opportunities or any activities
that might incidentally involve a future occupational
opportunity. Otherwise, Congress would have unwittingly and
inevitably transformed all space and time restrictions into
occupational restrictions, necessitating the application of the
higher standard. This cannot be what Congress intended.
According to the PSR, Emerson is a medical doctor, but he
has not practiced since December 1998 because of poor health.
Although restricting Emerson’s access to and employment at places
where children congregate could place some tangential hardship on
his ability to practice medicine, it does not prevent him from
pursuing his present primary means of support.
17
Mills, 959 F.2d at 519.
13
In addition, Emerson has not shown with any specificity how
the two relevant special conditions will restrict his ability to
serve as a medical doctor.18 Emerson has offered nothing more
than raw speculation and conclusional statements to support his
claim that these special conditions will affect his livelihood.
Thus, the two relevant special conditions are not occupational
restrictions for purposes of § 5F1.5, and thus are not entitled
to a higher standard.
As Emerson does not contend that the imposition of the
special conditions violated the requirements of § 3583, we
conclude the district court did not err in imposing the second
and third special conditions at issue. Moreover, even if it had,
we still would not have found an abuse of discretion.
III. CONCLUSION
We acknowledge that the district court violated Emerson’s
constitutional rights by imposing special conditions of
supervised release in its written entry of judgment when it had
failed to pronounce them orally at sentencing. This error was
rendered nugatory, however, when the district court held a post-
incarceration modification hearing and orally amended Emerson’s
sentence to include the special conditions. Given that none of
18
United States v. Rearden, 349 F.3d 608, 622 (9th Cir. 2003).
14
the four special conditions constituted an occupational
restriction, none was subject to a higher standard, rendering the
conditions subject to the standard § 3583 sentence-modification
requirements. Based on the applicable law and our extensive
review of the parties’ briefs and the record on appeal, we are
satisfied that the district court did not abuse its discretion
under § 3583(e) in imposing the special conditions of supervised
release at the conclusion of the modification hearing convened
and conducted for that purpose.
AFFIRMED.
15