United States v. Prado

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,
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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
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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