United States v. Jerry Thompson ( 2020 )

Case: 19-10445 Document: 00515337360 Page: 1 Date Filed: 03/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10445 March 9, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JERRY LEE THOMPSON, also known as “Chief”,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:01-CR-10-1
Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
Following his arrest for assault family violence, a felony pursuant to
Texas Penal Code § 22.01, Jerry Lee Thompson pleaded true to violating a
condition of his term of supervised release, imposed following his 2001 jury-
trial conviction for possession, with intent to distribute, less than five grams of
cocaine base within 1,000 feet of a playground and aiding and abetting, in
violation of 21 U.S.C. §§ 841(a)(1) and 860(a) and 18 U.S.C. § 2.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-10445
The district court revoked his supervised release and sentenced him to
36-months’ imprisonment and a new, nine-year term of supervised release.
Thompson’s new term of supervised release was subject to, inter alia, two
special conditions: abstain from using all intoxicants, including alcohol; and
participate in a program for the treatment of narcotic, drug, or alcohol
dependence and contribute at least $25 per month to the program’s cost. The
first special condition was imposed only in the written judgment; the second,
orally and in the written judgment. Thompson did not object to the imposition
of the second condition at the sentencing hearing. On appeal, Thompson
challenges only these two special conditions.
Regarding the first special condition, abstinence from intoxicants:
because Thompson had no opportunity to object, review is for abuse of
discretion. United States v. Rivas-Estrada, 906 F.3d 346, 348–49 (5th Cir.
2018) (citations omitted). Thompson asserts the district court erred by
including in the written judgment a special condition not pronounced at
sentencing, and asks the condition be stricken from the written judgment; the
Government agrees the condition was improperly imposed and requests the
case be remanded in order for the court to modify the written judgment so that
it conforms with the oral pronouncement. “[I]f a written judgment clashes with
the oral pronouncement, the oral pronouncement controls”. Id. at 350 (citations
omitted). Therefore, this special condition must “be stricken from the written
judgment”. Id. at 348. Accordingly, we vacate the abstinence condition and
remand to district court with instructions to modify the judgment by
eliminating it.
Regarding the second special condition, because Thompson did not object
in district court to his required participation in, and partial payment for, a
treatment program, review is only for plain error. E.g., United States v.
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Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Thompson
must show a forfeited plain error (clear or obvious error, rather than one
subject to reasonable dispute) that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have
the discretion to correct such reversible plain error, but generally should do so
only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.In imposing a special condition on supervised release, the district court
must explain on the record how the condition is reasonably related to the goals
of supervised release. United States v. Salazar, 743 F.3d 445, 451 (5th Cir.
2014) (citations omitted). If the court does not do so, however, the special
condition will not be disturbed on appeal if the court’s reasoning “can be
inferred after an examination of the record”. United States v. Caravayo, 809
F.3d 269, 275 (5th Cir. 2015) (quoting Salazar, 743 F.3d at 451).
The court’s reasoning is easily inferred from the record. Thompson is a
career offender with an extensive criminal history. The presentence
investigation report showed that Thompson was required to participate in a
substance-abuse program (indicating he had a substance dependency history)
while incarcerated in federal prison on a 1992 guilty-plea conviction for
narcotics trafficking. Later, while on supervised release, Thompson committed
the underlying crime in the instant case for the specific purpose of acquiring
cash to buy alcohol. The ensuing judgment contained a special condition that
Thompson abstain from using alcohol or narcotics and participate in a
substance dependency treatment program. Moreover, the judge who revoked
supervised release was the same judge who imposed the sentence on the
underlying conviction, and was, therefore, familiar with Thompson’s
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No. 19-10445
characteristics, the circumstances of the case, and any need for surveillance
and treatment for substance dependency.
To the extent Thompson contends the treatment condition is
unwarranted, whether the condition is reasonably related to the nature,
characteristics, and circumstances of his drug-trafficking crime and to his
history and characteristics is, at least, subject to reasonable dispute and,
therefore, not clear or obvious error.
AFFIRMED IN PART; VACATED IN PART; REMANDED TO
DISTRICT COURT FOR THE PURPOSE STATED IN THIS OPINION.
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