United States v. Napier ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30348
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00033-JMF
JOHNNY LEE NAPIER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Alaska
James M. Fitzgerald, District Judge, Presiding
Argued and Submitted
April 7, 2006—Seattle, Washington
Filed September 19, 2006
Before: William C. Canby, Jr., Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Canby
11585
11586 UNITED STATES v. NAPIER
COUNSEL
Mary C. Geddes, Assistant Federal Public Defender, Anchor-
age, Alaska, for the defendant-appellant.
UNITED STATES v. NAPIER 11587
Stephen Cooper, Assistant United States Attorney, Fairbanks,
Alaska, for the plaintiff-appellee.
OPINION
CANBY, Circuit Judge:
Johnny Napier pleaded guilty to one count of fraudulently
obtaining, converting, and misapplying federal grant funds.
Two other, similar counts were dismissed. After the sentenc-
ing hearing, the district court imposed several nonstandard
conditions of supervised release in its written judgment.
Napier contends that the district court acted unlawfully by
making these late additions to his sentence and that, in any
event, two of the conditions are unwarranted. Napier also
argues that the district court lacked authority to order restitu-
tion based on the two dismissed counts.
[1] We conclude that the district court erred in imposing the
nonstandard conditions of supervised release after the oral
sentencing, and that it abused its discretion in imposing the
condition requiring drug treatment. We also conclude that, for
the purposes of this appeal, Napier waived his argument
regarding restitution by failing to raise it in the district court.
Background
Napier was the executive director of two nonprofit organi-
zations that received federal grants. His activities in connec-
tion with these grants led to an indictment charging him with
three counts of fraudulently obtaining, converting, and misap-
plying federal funds in violation of 18 U.S.C. § 666(a)(1)(A).
Napier agreed to plead guilty to count three. In turn, the gov-
ernment dismissed counts one and two. The district court sen-
tenced him to nine months in prison and three years of
supervised release. Relying on the facts of loss relating to all
11588 UNITED STATES v. NAPIER
three counts, the district court ordered Napier to pay $104,000
in restitution.
At the sentencing hearing, the district court explained the
terms of Napier’s supervised release:
I’m going to impose a term of three years supervised
release upon your release from incarceration. . . .
The terms and conditions of final release will be pro-
vided in a final judgment in this case, and they may
be modified from time to time while you are under
supervised release . . . Now, I’m not going to set
forth all the terms and conditions. Those terms and
conditions will be set forth in the final judgment.
...
The court then advised Napier of several conditions of super-
vised release applicable to him, including the “mandatory”
conditions required by 18 U.S.C. § 3583(d). The district court
also summarized the effect of some of the “standard” condi-
tions of supervised release that are recommended by USSG
§ 5D1.3(c) for imposition in every case.
After the hearing, the court issued a written judgment that
included not only the standard conditions, but also six non-
standard conditions of supervised release. Napier challenges
the nonstandard conditions requiring him to participate in a
drug treatment program and to undergo a mental health evalu-
ation. Napier also challenges the restitution order to the extent
that the court relied on the dismissed counts one and two to
calculate the amount owed.
We have jurisdiction under 18 U.S.C. § 3742. We review
de novo the legality of Napier’s sentence. United States v.
Cade, 236 F.3d 463, 465 (9th Cir. 2000).
UNITED STATES v. NAPIER 11589
Discussion
1. The Nonstandard Conditions of Supervised Release
We conclude that the district court erred when it included
in the written judgment nonstandard conditions of supervised
release without first announcing those conditions as part of
Napier’s oral sentence. Napier has a right under the Sixth
Amendment and the Federal Rules of Criminal Procedure to
be present at his sentencing. United States v. Aguirre, 214
F.3d 1122, 1125 (9th Cir. 2000); Fed. R. Crim. P. 43(a)(3).
The actual imposition of a sentence occurs at the oral sentenc-
ing, not when the written judgment later issues. Aguirre, 214
F.3d at 1125. Thus, it has long been the rule that, when an
oral sentence is unambiguous, it controls over a written sen-
tence that differs from it. See United States v. Munoz-Dela
Rosa, 495 F.2d 253, 256 (9th Cir. 1974) (per curiam).
This rule encounters some strain when it is applied to con-
ditions of supervised release. Numbers of these conditions are
mandatory under 18 U.S.C. § 3583(d), or recommended by
the Guidelines as standard, boilerplate conditions of super-
vised release, see USSG § 5D1.3(c), and they are sufficiently
detailed that many courts find it unnecessarily burdensome to
recite them in full as part of the oral sentence. For that reason,
imposition of these mandatory and standard conditions is
deemed to be implicit in an oral sentence imposing supervised
release. See United States v. Truscello, 168 F.3d 61, 62 (2d
Cir. 1999). When those standard conditions are later set forth
in a written judgment, the defendant has no reason to com-
plain that he was not present at this part of his sentencing
because his oral sentence necessarily included the standard
conditions.
[2] It is nevertheless the better practice to advise the defen-
dant orally, at least in summary fashion, of the standard con-
ditions. Here, the district court at the sentencing hearing
commendably warned Napier that there would be conditions
11590 UNITED STATES v. NAPIER
to his supervised release, and it summarized some of the stan-
dard conditions. The court left Napier’s oral sentence ambigu-
ous, however, because it indicated that the written judgment
would include conditions of supervised release not specified
in the oral sentence. The standard conditions in the written
judgment present no problem for reasons just explained. But
in the later written judgment, the district court also added con-
ditions that were based on the particular circumstances of
Napier’s case. See USSG § 5D1.3(d). Since these conditions
were neither mandatory nor standard, they cannot be deemed
to have been implicit in the oral imposition of supervised
release. By adding these nonstandard conditions of supervised
release to Napier’s sentence after the hearing, the district
court denied Napier the right to be present for the imposition
of this part of his sentence.
[3] We are not presented with a situation where the later
written sentence merely clarifies an ambiguity in the oral pro-
nouncement and thus controls. See United States v. Garcia, 37
F.3d 1359, 1368 (9th Cir. 1994). It is true that the oral sen-
tence was ambiguous as to the nature of the conditions that
would appear in the later written judgment. But the nonstan-
dard conditions included in the written judgment went far
beyond what may reasonably regarded as a “clarification”;
they added substantive conditions to Napier’s sentence that
neither Napier nor his counsel could have anticipated from the
court’s statements at the sentencing hearing. Cf. Truscello,
168 F.3d at 63 (finding no error in the subsequent written
judgment because it did not change the sentence as stated
orally).
[4] Napier’s counsel’s did not waive this issue by failing to
object at the sentencing hearing to the court’s ambiguous pro-
nouncement. When the district court declined to set forth all
the conditions of supervised release, defense counsel had no
reason to expect that the court was withholding anything but
the standard conditions of supervised release. Moreover,
toward the end of the hearing, the government requested that
UNITED STATES v. NAPIER 11591
the district court make the findings necessary to trigger a
mandatory urine testing condition. The court responded that
it would impose that condition. Counsel could have inferred
from this exchange that the court would specify any nonstan-
dard conditions that were to apply. Counsel had no reason to
object or ask for a continuance.
2. The Remedy
[5] We conclude that the appropriate remedy in this case is
to vacate Napier’s sentence and remand for resentencing. If
the oral sentence was unambiguous and the written judgment
directly conflicted with it, then the oral sentence would con-
trol, and we would not need to vacate it. See United States v.
Hicks, 997 F.2d 594, 597 (9th Cir. 1993). But there is no con-
flict here because the district court stated that the written
judgment would contain other conditions. Cf. Truscello, 168
F.3d at 63 (finding no conflict between an oral sentence in
which the court stated that it would later impose supervised-
release conditions and the written judgment that contained
standard conditions). Although the most reasonable interpre-
tation of the court’s pronouncement was that only standard
conditions would follow, the pronouncement was sufficiently
ambiguous that we cannot say the inclusion of nonstandard
conditions in the written judgment created a direct conflict.
This is not a situation like that in United States v. Martinez,
250 F.3d 941, 941-42 (5th Cir. 2001) (per curiam), in which
the oral sentence made no mention of any conditions of super-
vised release and the written judgment included nonstandard
conditions. There the Fifth Circuit remanded with instructions
to strike the challenged conditions, leaving the oral sentence
intact. Id. at 42. Here, however, we do not have a complete
and unambiguous sentence to leave intact; we have an oral
sentence stating that unspecified conditions of supervised
release would be imposed in the written judgment. The fact
that we have now struck down the nonstandard conditions
imposed in the written judgment does not make the oral sen-
11592 UNITED STATES v. NAPIER
tence complete and unambiguous. We accordingly vacate the
sentence and remand for resentencing.
3. The Merits of the Nonstandard Conditions
a. The drug-treatment condition
[6] Because we are remanding for a resentencing in which
the issues will arise again, we review for abuse of discretion
the district court’s imposition of the drug-treatment and the
mental-health conditions. See United States v. Bahe, 201 F.3d
1124, 1127 (9th Cir. 2000). The drug-treatment condition
required Napier “to participate in either inpatient or outpatient
treatment programs . . . for substance abuse treatment, which
program shall include testing to determine whether the defen-
dant has reverted to the use of drugs or alcohol.” The district
court may impose nonstandard conditions only if certain
criteria are satisfied. See 18 U.S.C. § 3583(d). The court
abused its discretion by imposing the drug-treatment condi-
tion because it does not satisfy the statutory criteria. Id.
[7] The requirement to undergo drug treatment is not rea-
sonably related to the “nature and circumstances of the
offense and the history and characteristics of [Napier].” 18
U.S.C. § 3553(a)(1). Napier was convicted of defrauding the
federal government, and there is no evidence of drug abuse
bearing any relation to the fraud. Similarly, drug treatment is
not needed to deter Napier from engaging in criminal conduct,
to protect the public from his future crimes, or to provide him
with “needed . . . correctional treatment” because there is no
evidence that Napier has a propensity for substance abuse. Id.
§ 3553(a)(2)(B)-(D). For the past ten years, Napier has
abstained from drinking alcohol and, prior to that, he was a
social drinker. Other than smoking marijuana once as a teen-
ager, Napier contends he has never used — let alone abused
— illegal drugs.
The only evidence on which the district court could have
based the drug treatment condition are an equivocal statement
UNITED STATES v. NAPIER 11593
by Napier’s coworker and Napier’s prior convictions. The
coworker believed Napier was abusing “some type of sub-
stance” “at one time” because Napier did not act like himself
at work and was staying out late. But the coworker did not
specify when the supposed symptoms of abuse occurred or for
how long. There are a myriad of innocent explanations for the
alleged behavior, and drug use is not a plausible one absent
other evidence of a drug problem. Nor do Napier’s almost 20-
year-old convictions for selling cocaine indicate a present pro-
pensity for drug abuse. Napier claims he bought the cocaine
and sold some to support his wife’s habit and that he never
used it. There is no evidence to the contrary.
Finally, the drug-treatment condition is inconsistent with
the Sentencing Commission’s policies. See 18 U.S.C.
§ 3583(d)(3). The Sentencing Guidelines recommend the
imposition of the drug treatment condition “[i]f the court has
reason to believe that the defendant is an abuser of narcotics,
other controlled substances, or alcohol.” USSG § 5D1.3(d)(4).
Again, the record provides no reason to believe that Napier
abuses drugs or alcohol.
[8] In short, the court’s decision to include a drug-treatment
condition as part of Napier’s supervised release is “clearly
against the logic and effect of the facts” and thus is an abuse
of discretion. Rabkin v. Or. Health Sci. Univ., 350 F.3d 967,
977 (9th Cir. 2003). On remand, the district court may not
reimpose this condition.
b. The mental-health condition
[9] As a condition of his supervised release, the district
court also required Napier to “participate in and fully comply
with a mental health evaluation (specifying gambling or anger
management issues), and if deemed advisable, to participate
in either or both inpatient or outpatient mental health treat-
ment programs.” The district court did not abuse its discretion
in imposing the mental-health condition. Because of Napier’s
11594 UNITED STATES v. NAPIER
history of violence towards women, the court had reason to
believe Napier would benefit from a mental health evaluation
and possible treatment. See 18 U.S.C. §§ 3553(a)(2); 3583(d).
Napier was convicted of misdemeanor domestic assault on
three occasions over nearly 15 years. In each incident, he hit
and choked the victim. Mental health treatment may help
deter Napier from assaulting women again and protect the
public from the various consequences of domestic violence.
This condition also provides Napier with “needed . . . correc-
tional treatment.” 18 U.S.C. § 3553(a)(2). Finally, it involves
no greater deprivation of liberty than is reasonably necessary
to achieve these ends. See id. § 3583(d). Thus, on remand, the
district court is not precluded from reimposing the mental
health condition.
4. Restitution
In the district court, Napier argued that the federal funds in
counts one and two should not be counted toward restitution
only because he had used the funds for authorized purposes.
The government countered that the funds had been misappro-
priated. The district court held an evidentiary hearing on this
factual dispute and resolved the matter against Napier. Napier
now argues that the district court lacked statutory authority to
include losses from counts one and two in his restitution order
because they were not the counts of conviction.
[10] We decline to consider this argument because Napier
failed to raise it in the district court. As a general rule parties
who did not present an issue to the trial court cannot raise it
for the first time on appeal. United States v. Patrin, 575 F.2d
708, 712 (9th Cir. 1978). Although we can consider newly-
raised issues that are purely legal, see id., Napier’s argument
depends on factual questions that were not resolved below,
and our consideration of these issues would prejudice the gov-
ernment.
Restitution to the “victim of an offense” is mandatory for
the offenses in issue here. 18 U.S.C. § 3663A(a)(1) &
UNITED STATES v. NAPIER 11595
(c)(1)(A)(ii). It is also permissive under § 3663(a)(1). The
“victim,” however, is defined as one harmed by the offense of
conviction. Id. §§ 3663(a)(2) & 3663A(a)(2). Restitution may
go beyond the offense of conviction under certain conditions
if the offense of conviction contains an element of a scheme,
conspiracy or pattern of criminal activity, see id., but the
offense of which Napier was convicted contains no such ele-
ment. The government accordingly concedes that the losses
from counts one and two may be included in the restitution
order only if the parties’ plea agreement authorized it. See 18
U.S.C. § 3663(a)(3) (providing authority to order restitution
“to the extent agreed to by the parties in a plea agreement”).
The plea agreement in this case was not written. The gov-
ernment contends that the parties orally agreed to include all
three counts in calculating the restitution. Napier argues that
there was no such term in the plea agreement and contends
that the record fails to establish that there was one. We find
that the record is inconclusive and we are in no position to
resolve this factual issue. See generally United States v.
Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991) (“Disputes
concerning the existence and terms of a plea agreement gener-
ally pose factual questions for resolution in the district court.
. . .”) (citation omitted). Moreover, if Napier had objected in
the district court to inclusion of losses from the dismissed
counts in his restitution order, the government would have
had an opportunity to present more fully its evidence of the
terms of the plea agreement. Thus, the government would be
unfairly prejudiced if we resolved this issue on the present
record. We therefore decline to do so.
Because we are remanding for resentencing without any
limitation with respect to this issue, the district court will be
free, in such proceedings as it deems appropriate, to deter-
mine the terms of the plea agreement and the proper amount
of restitution to be ordered under it.
11596 UNITED STATES v. NAPIER
Conclusion
We vacate Napier’s sentence and remand for resentencing
consistent with this opinion.
SENTENCE VACATED; REMANDED FOR RESEN-
TENCING.