United States v. Prado ( 2022 )


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  • Case: 22-40207     Document: 00516542773         Page: 1    Date Filed: 11/11/2022
    United States Court of Appeals
    for the Fifth Circuit                                United States Court of Appeals
    Fifth Circuit
    FILED
    November 11, 2022
    No. 22-40207                         Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Cruz Alejandro Prado, Jr.,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:20-CR-781-2
    Before Higginbotham, Southwick, and Higginson, Circuit
    Judges.
    Stephen A. Higginson, Circuit Judge:
    Cruz Alejandro Prado, Jr., challenges the sentence imposed following
    the revocation of his supervised release. Specifically, Prado argues that two
    special conditions included in his written judgment should be vacated
    because they were not pronounced orally at sentencing as required by this
    Court’s precedent.
    To satisfy a defendant’s “constitutional right to be present at
    sentencing,” United States v. Vega, 
    332 F.3d 849
    , 852 (5th Cir. 2003), “[a]
    district court must orally pronounce a sentence,” United States v. Grogan,
    Case: 22-40207        Document: 00516542773             Page: 2      Date Filed: 11/11/2022
    No. 22-40207
    
    977 F.3d 348
    , 351 (5th Cir. 2020) (citing United States v. Diggles, 
    957 F.3d 551
    , 556-57 (5th Cir. 2020) (en banc)). “Including a sentence in the written
    judgment that the judge never mentioned when the defendant was in the
    courtroom is ‘tantamount to sentencing the defendant in abstentia.’” Diggles,
    957 F.3d at 557 (quoting United States v. Weathers, 
    631 F.3d 560
    , 562 (D.C.
    Cir. 2011)).
    When there is a discrepancy between the oral pronouncement and the
    written judgment, we must first determine whether such discrepancy “is a
    conflict or merely an ambiguity that can be resolved by reviewing the rest of
    the record.” United States v. Mireles, 
    471 F.3d 551
    , 558 (5th Cir. 2006). A
    conflict occurs “[i]f the written judgment broadens the restrictions or
    requirements of supervised release from an oral pronouncement,” 
    id. at 558
    ,
    or imposes more burdensome conditions, see United States v. Bigelow, 
    462 F.3d 378
    , 383 (5th Cir. 2006). In the event of a conflict, the written judgment
    must be amended to conform with the oral pronouncement, which controls.
    Grogan, 977 F.3d at 352.
    Where, as here, a defendant did not object to the conditions of
    supervised release in the district court, the standard of review depends on
    whether the defendant had an opportunity to object to the condition at
    sentencing. Diggles, 957 F.3d at 559-60. If the defendant had a chance to
    object yet failed to do so, plain error review applies. Grogan, 977 F.3d at 352.
    If the defendant lacked that chance, we review for abuse of discretion. 1 Id.
    The Government concedes that Special Condition 6 in the written
    judgment, which requires Prado to refrain from excessive use of alcohol, was
    1
    Because the conditions to which Prado objects were not mandatory under U.S.C.
    § 3583(d) and were not included in the PSR or the original judgment and therefore could
    not be incorporated by reference, the parties agree that oral pronouncement was required.
    See Diggles, 975 F.3d at 558-60.
    2
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    No. 22-40207
    not orally pronounced and accordingly must be removed from the written
    judgment. See Diggles, 957 F.3d at 556-559.
    The parties dispute, however, whether the first sentence of Special
    Condition 2 in the written judgment should be similarly struck. Special
    Condition 2 requires Prado to “take all mental-health medications that are
    prescribed by [his] treating physician.” At the sentencing hearing, the
    district court generally discussed Prado’s need for medication to treat his
    bipolar disorder, anxiety, and ADHD, and probation recommended that
    mental health treatment be imposed as a condition of supervised release so
    that Prado could receive such medication. Following this discussion, the
    district court pronounced that it would require Prado to undergo mental
    health treatment as a condition of supervised release. In so doing, the district
    court noted that “the programming need[ed] to be tailored to [Prado’s]
    specific ADHD and impulsivity disorder so that he [could] get meds for
    that.” The district court closed by informing Prado that the Government
    would pay for his medication if he could not afford it and expressing his hope
    that the medication would help keep Prado out of trouble.
    Although the Government contends that the statements by the district
    court made it clear that Prado would be required to take his prescribed mental
    health medication as a condition of release, we agree with Prado that the
    general discussion about his need for medication was insufficient to put him
    on notice that the court was imposing a requirement to take such medication.
    Simply put, stating that Prado should participate in a mental health program
    that gives him access to medication and expressing hope that these
    medications will help him is not the same as imposing a judicial requirement,
    subject to further revocation, that he must take those medications. Requiring
    Prado to take all his medication can be either be viewed as broadening or
    expanding the requirements of supervised release, see Mireles, 571 F.3d at 558,
    or imposing a more burdensome condition—taking medication—than the
    3
    Case: 22-40207      Document: 00516542773          Page: 4    Date Filed: 11/11/2022
    No. 22-40207
    oral pronouncement, see Bigelow, 
    462 F.3d at 383
    . In either case, it constitutes
    a conflict between the written judgment and the oral pronouncement, and the
    condition must be removed from the written judgment. See Diggles, 957 F.3d
    at 556-59; see also United States v. Hernandez, 
    2022 WL 1224480
    , at *2 (5th
    Cir. Apr. 26, 2022) (unpublished) (finding that the district court abused its
    discretion by imposing a written condition to take all prescribed mental
    health medications where the oral pronouncement referenced only the
    requirement to participate in a mental health treatment program).
    Accordingly, we VACATE in part and REMAND to the district
    court to amend the written judgment in accordance with this opinion. In all
    other respects, the judgment is AFFIRMED.
    4
    

Document Info

Docket Number: 22-40207

Filed Date: 11/11/2022

Precedential Status: Precedential

Modified Date: 11/14/2022