United States v. Timpson ( 2022 )

Case: 19-50924 Document: 00516461711 Page: 1 Date Filed: 09/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-50924 September 7, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Craig Allen Timpson,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:18-CR-260-3
Before Stewart, Dennis, and Higginson, Circuit Judges.
Per Curiam:*
Defendant-Appellant Craig Allen Timpson appeals certain written
conditions of his supervised release, arguing that the written judgment
should be amended to match the orally pronounced judgment. See United
States v. Diggles, 957 F.3d 551, 556–57 (5th Cir. 2020) (en banc). For the
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-50924
following reasons, we AFFIRM in part and VACATE and REMAND in
part.
I. Facts & Procedural History
Timpson pleaded guilty to conspiracy to distribute and possess with
intent to distribute 50 grams or more of actual methamphetamine. The plea
agreement contained an appeal waiver provision in which Timpson generally
agreed to waive his right to appeal or seek collateral review of his conviction
and sentence, except for collateral review of claims involving ineffective
assistance of counsel or prosecutorial misconduct of a constitutional
dimension.
The Presentence Investigation Report (“PSR”) calculated a
guidelines sentencing range of 262 to 327 months of imprisonment. It also
recommended imposing “the mandatory and standard conditions of
supervision adopted by the Court” as well as a special search condition. The
district court adopted the PSR without change. Timpson was sentenced
within the guidelines range to 300 months of imprisonment and five years of
supervised release. The district court imposed “[t]he standard and
mandatory conditions of supervision” and “the search condition of the
Western District of Texas.” It also imposed a condition for substance abuse
treatment “should the experts believe that be necessary.” Timpson timely
appealed.
II. Standard of Review
A defendant’s constitutional right to be present at sentencing requires
the district court to pronounce his sentence orally. Diggles, 957 F.3d at 557.
Any discretionary condition of supervised release that 18 U.S.C. § 3583(d)
does not require must be pronounced at sentencing. See id. at 559. “If the
written judgment broadens the restrictions or requirements of supervised
release from an oral pronouncement, a conflict exists.” United States v.
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Mireles, 471 F.3d 551, 558 (5th Cir. 2006). “Where there is an actual conflict
between the district court’s oral pronouncement of sentence and the written
judgment, the oral pronouncement controls.” Id. at 557.
When the defendant challenges conditions of supervised release
included in the written judgment for the first time on appeal, “the standard
of review depends on whether he had an opportunity to object before the
district court.” United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020). If
the defendant had an opportunity to object but failed to do so, plain error
review applies. Id. To show plain error, the defendant must show (1) an error
(2) that is clear or obvious and (3) that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing,
this court has the discretion to correct the error but only if it “‘seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.’”
Id. (quoting United States v. Olano, 507 U.S. 725, 763 (1993)).
III. Discussion
Timpson argues that the district court erred by imposing discretionary
conditions of supervised release about which he had no prior notice and that
were not pronounced at sentencing. He asserts that the written judgment
imposed 28 conditions of supervised release, but only seven of those
conditions were mandatory under § 3583(d) and only one condition was
listed in the PSR. Because the remaining 20 conditions were not orally
pronounced, Timpson argues that he did not receive proper notice of them.
Although he acknowledges that a standing order in the Western District of
Texas lists these conditions, he asserts that the district court did not refer to
or adopt any standing order at sentencing and failed to confirm his review or
knowledge of any such list of recommended conditions. Moreover, Timpson
argues that even if he was aware of the standing orders, the substance abuse
treatment condition “has not been adopted by the district.” He contends
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that his right to be present at sentencing was violated and that the judgment
must be corrected to excise the conditions that were not pronounced. 1
A. Mandatory, standard, and special search conditions
The PSR recommended that the district court impose “the
mandatory and standard conditions of supervision adopted by the Court”
and a special search condition. Timpson did not object to those
recommendations. The district court confirmed that Timpson had reviewed
the PSR, and it then adopted the PSR. At sentencing, the district court stated
that it was imposing “[t]he standard and mandatory conditions of
supervision,” as well as “the search condition of the Western District of
Texas.” The Western District of Texas has a standing order listing all of the
“mandatory” and “standard” conditions of supervised release included in
the written judgment. 2 A different standing order of the Western District
includes the search condition as an optional special condition. 3 Because the
district court informed Timpson that it was imposing these mandatory and
1
Timpson also argues that the appeal waiver in his plea agreement does not bar
review of his challenge to the conditions of his supervised release. He asserts that the
government has expressed its intent to enforce the waiver in this case. But the government
did not invoke the waiver as a bar to his claim in its appellate brief. Accordingly, the waiver
provision does not bar this appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.
2006) (“In the absence of the government’s objection to [a defendant’s] appeal based on
his appeal waiver, the waiver is not binding because the government has waived the
issue.”).
2
United States District Court for the Western District of Texas, Conditions of
Probation and Supervised Release, (Amended Nov. 28, 2016)
https://www.txwd.uscourts.gov/judges-information/standing-orders/ (select “District
Standing Orders,” then “Conditions of Probation and Supervised Release.pdf”).
3
United States District Court for the Western District of Texas, Conditions of
Supervision – Special Conditions, https://www.txwd.uscourts.gov/judges-
information/standing-orders/ (select “District Standing Orders,” then “Conditions of
Supervision - Special Conditions - Franklin Compliant.pdf”).
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standard conditions, “he had notice and an opportunity to object (or, at a
minimum, to ask for more specificity about the conditions).” United States v.
Martinez, 15 F.4th 1179, 1181 (5th Cir. 2021). Timpson failed to object, so his
challenge to these conditions is subject to plain error review. See id.The written judgment orders Timpson to “comply with the
mandatory, standard and if applicable, the special conditions that have been
adopted by this Court” while on supervised release. It then lists nine
“mandatory” conditions and 17 “standard” conditions. Because the
judgment contains discretionary conditions that are not required under §
3583(d), oral pronouncement of those conditions was required. See Diggles,
957 F.3d at 556–59. The district court was not required to orally pronounce
any of the “mandatory” conditions listed in the judgment that are found in
§ 3583(d). See id at 559.
As noted, the “mandatory” and “standard” conditions in Timpson’s
written judgment are all listed in the Western District of Texas’s standing
order. See note 2, supra. The PSR recommended imposing those conditions,
and the district court orally adopted them. Timpson “thus had in-court
notice of the conditions being imposed and ample opportunity to object.”
Martinez, 15 F.4th at 1181. In other words, “[t]here is no notice problem,” so
“the district court complied with Diggles” as to these conditions. Id.
The district court imposed an “additional” condition in the written
judgment requiring Timpson to submit to searches of his person, property,
vehicle, and electronic devices, if the probation officer reasonably suspects
that Timpson has violated a condition of supervision and that evidence of the
violation will be found. The PSR recommended the same special condition,
which is also contained in another Western District standing order listing
various optional special conditions. See note 3, supra. As explained above, the
district court confirmed that Timpson had reviewed the PSR with his
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counsel, and it subsequently adopted the PSR. The district court also orally
imposed the “search condition of the Western District of Texas.” This oral
pronouncement was a sufficient “shorthand reference” to the full condition
found in the PSR and the district’s standing order. Grogan, 977 F.3d at 353.
Accordingly, there is no error, much less one that is plain. See id. at 353–54.
B. Substance abuse treatment condition
During the sentencing hearing, defense counsel asserted that
Timpson has a drug problem, that he has never been to treatment, and that
he “wants to get into a treatment program.” After imposing other conditions
of supervised release, the district court confirmed with Timpson that he
never had the opportunity for substance abuse treatment. The district court
then recommended to the Bureau of Prisons that Timpson be considered for
substance abuse treatment. Next, the district court said that it would “also
impose a condition of supervision [for] substance abuse treatment should the
experts believe that be necessary. And we’ll follow on with whatever you can
get in prison.” The written judgment, on the other hand, provides that
Timpson “shall” participate in substance abuse treatment as a condition of
supervised release. Timpson argues that this condition should be excised
from the written judgment because it was neither disclosed in the PSR nor
pronounced at sentencing. 4 We agree. Because the district court’s oral and
written sentences are inconsistent with respect to the substance abuse
treatment condition, we hold that it plainly erred 5 under Diggles.
4
Because this is the sole issue that Timpson raises with respect to this condition,
we consider any other arguments to be waived. See Atwood v. Union Carbide Corp., 847 F.2d
278, 280 (5th Cir. 1988); United States v. Musa, 45 F.3d 922, 925 (5th Cir. 1995).
5
Plain error review applies to this claim because Timpson’s own attorney proposed
substance abuse treatment and failed to object when the district court imposed that
condition. See United States v. Hernandez, No. 21-40161, 2022 WL 1224480, at *3 (5th Cir.
Apr. 26, 2022) (unpublished).
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Consequently, we vacate and remand this part of the district court’s order so
the written sentence may be conformed with the oral pronouncement. See
Diggles, 957 F.3d at 556–57.
IV. Conclusion
For the foregoing reasons, we VACATE and REMAND the portion
of the district court’s order addressing the substance abuse treatment
condition. The remainder of the district court’s order is AFFIRMED.
7