United States v. Hernandez

Case: 21-40161 Document: 00516296003 Page: 1 Date Filed: 04/26/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 26, 2022
No. 21-40161
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alma Hernandez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 7:19-CR-02434
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:*
Alma Hernandez pled guilty of importing methamphetamine. On
appeal, she contests six of the nine special discretionary conditions of
supervision in her written judgment, arguing they conflict with her orally
pronounced sentence. We affirm in part, vacate in part, and remand.
*
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opinion should not be published and is not precedent except under the limited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. 21-40161
I.
Hernandez was indicted on four counts related to her importing more
than 500 grams of methamphetamine from Mexico. The appendix to her
Presentence Report (PSR) recommended that, while under supervision, she
should comply with the “mandatory conditions and all standard conditions
of supervision that have been adopted by the Court as well as any additional
special conditions.” The appendix then set out standard and mandatory
conditions of supervised release. It set out only one special condition
requiring Hernandez “to participate in a mental health program” and pay the
costs if financially able.
Hernandez entered into a plea agreement providing she plead guilty
to count two, covering importation of the drugs. See 18 U.S.C. § 2; 21 U.S.C.
§§ 952(a), 960(a)(1), (b)(1). In exchange, the government would (1)
recommend a two-point decrease of her offense level for acceptance of
responsibility and (2) move for dismissal of the remaining counts (i.e., counts
one, three, and four). At Hernandez’s sentencing hearing, the court granted
the government’s motion to dismiss the remaining counts.
The court imposed a within-guidelines sentence of 108 months’
imprisonment and three years’ supervised release. The court did not orally
adopt Hernandez’s PSR but did confirm she had reviewed it with counsel.
Turning to supervised release, the court ordered Hernandez “to comply with
the standard conditions adopted by the Court,” specifically pronouncing
several conditions including, as relevant here, that Hernandez “participate
in [a] mental health treatment program.” The court then stated that “[a]ll of
those conditions are . . . set out in the appendix to the [PSR].” Finally, upon
defense counsel’s request, the court ordered “that Ms. Hernandez, as part
of her term of supervised release, participate in a drug and alcohol treatment
program.” Hernandez did not object.
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In addition to the standard and mandatory conditions, Hernandez’s
written judgment contained nine special discretionary conditions. Only one
of the nine (requiring participation in a mental-health treatment program)
was set forth in the PSR appendix. As relevant here, six of the conditions
require Hernandez to: take all prescribed mental health medications and pay
if able (“condition two”); participate in an inpatient alcohol-abuse treatment
program and pay if able (“condition four”); refrain from using or possessing
controlled substances without a valid prescription (“condition six”); refrain
from using or possessing alcohol (“condition eight”); and refrain from
knowingly using or possessing psychoactive substances, such as bath salts or
synthetic marijuana, except with the probation officer’s prior approval
(“condition nine”). Hernandez’s written judgment also reflects the court’s
dismissal of counts one and three, but not four.
Hernandez timely appealed, arguing that the six special conditions
just noted conflict with the oral pronouncement of her sentence.1 She also
seeks remand to correct the written judgment’s failure to dismiss count four.
The government filed a brief agreeing with Hernandez.2
II.
To satisfy due process, a court must pronounce supervised release
conditions that are discretionary under 18 U.S.C. § 3583(d). See United States
v. Diggles, 957 F.3d 551, 559, 563 (5th Cir.) (en banc), cert. denied, 141 S. Ct.
825 (2020). A court does so by stating the condition at sentencing or by
referencing a document recommending the condition, such as the PSR or a
1
Hernandez does not challenge the special conditions that she participate in a
mental health program (“condition one”), an outpatient substance-abuse program
(“condition three”), and an outpatient alcohol-abuse program (“condition five”).
2
Although this concession “is entitled to great weight,” we independently
examine the record and reach our own decision. Cachoian v. United States, 452 F.2d 548,
550 (5th Cir. 1971) (internal quotation marks and citation omitted).
3
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standing order. Id. at 560–63; see also United States v. Martinez, 15 F.4th 1179,
1180–81 (5th Cir. 2021). “Where there is an actual conflict between the
district court’s oral pronouncement of sentence and the written judgment,
the oral pronouncement controls.” United States v. Mireles, 471 F.3d 551, 558
(5th Cir. 2006) (citations omitted); see also Diggles, 957 F.3d at 563. In that
event, “the appropriate remedy is remand to the district court to amend the
written judgment to conform to the oral sentence.” Mireles, 471 F.3d at 558
(citing United States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003)).
Our standard of review turns on whether the defendant had an
opportunity to object to the condition at sentencing. Diggles, 957 F.3d at 559–
60. If she had that chance but failed to object, we review for plain error. Id. at
560. If she did not have that chance, we review for abuse of discretion. Ibid.;
see also, e.g., United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020).
III.
On appeal, Hernandez challenges six of the nine special discretionary
conditions in her written judgment. We address each condition in turn.
A. Condition two (mental-health medication)
First, Hernandez challenges the condition that she take all prescribed
mental health medications and pay for them if able. In a recent unpublished
opinion, we explained that such a condition is a “new, burdensome
restriction” that should be removed from the judgment if the district court
failed to pronounce it. United States v. Yarbrough, 830 F. App’x 437, 438 (5th
Cir. 2020) (per curiam). Here, the district court did not pronounce this
specific condition. The court’s pronouncement, as well as the PSR,
referenced only the requirement that Hernandez participate in a “mental
health treatment program,” not that she take and pay for all prescribed
medications. Consequently, Hernandez lacked the opportunity to object to
this discretionary condition. The district court abused its discretion by
imposing it. See ibid. (vacating condition that defendant take prescribed
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medications because “the district court never pronounced that requirement
at sentencing and it was not in any documents available to him”) (cleaned
up); see also United States v. Brown, 855 F. App’x 176, 179–80 (5th Cir. 2021)
(per curiam).
B. Condition four (inpatient alcohol-abuse program)
Hernandez next objects to the condition that she participate in (and
pay for, if able) an inpatient alcohol-abuse treatment program. Whether
Hernandez had the chance to object to this condition is somewhat complex.
Her PSR recommended no special conditions relating to drug or alcohol
treatment, but her attorney specifically “ask[ed] the Court to recommend
that [Hernandez] participate in the drug treatment program, too.”
Accordingly, the district court stated: “The Court will also order that Ms.
Hernandez, as part of her term of supervised release, participate in a drug
and alcohol treatment program, and also recommends that should that be
available to her in the Bureau of Prisons, that she participate there as well.”
Counsel did not object or request any clarification of the program’s terms.
As noted, the written judgment imposed not only an outpatient alcohol-abuse
program (which Hernandez does not challenge) but also an inpatient
program.
We conclude that our review of the inpatient condition should be for
plain error. While the district court’s oral pronouncement did not specify
either an outpatient or inpatient program, Hernandez’s own attorney
requested she undergo a “drug treatment program” and then offered no
objection to the court’s imposing a “drug and alcohol treatment program.”
At that point, Hernandez could have asked for clarification of the program’s
terms but did not. See, e.g., Martinez, 15 F.4th at 1181 (reviewing for plain
error where counsel had opportunity “at a minimum, to ask for more
specificity about the conditions”). This differs from situations where a
district court orally pronounces outpatient treatment and the written
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judgment imposes inpatient treatment.3 Accordingly, we ask only whether
Hernandez has shown that the inpatient condition is “an obvious error that
impacted [her] substantial rights and seriously affected the fairness, integrity
or reputation of judicial proceedings.” Diggles, 957 F.3d at 559 (citing Puckett
v. United States, 556 U.S. 129, 135 (2009)).
Hernandez fails to make this showing. While inpatient treatment
involves “significant liberty interests,” United States v. Huerta, 994 F.3d 711,
716 (5th Cir. 2021) (citation omitted), Hernandez cites no decision
suggesting a district court commits error, much less plain error, by imposing
it as a condition of supervision. That is particularly so here. Hernandez pled
guilty to importing narcotics and did not object to being required to
participate in mental-health treatment and in outpatient drug- and alcohol-
abuse programs. Her own attorney asked that she receive drug treatment.
And the PSR details Hernandez’s history of drug and alcohol abuse that led
to prior arrests for driving while intoxicated and possessing marijuana. Under
these circumstances, we cannot find plain error in requiring Hernandez to
participate in an inpatient alcohol-abuse treatment program.
C. Condition six (controlled substances)
Hernandez next contests the condition in her written judgment that
she not possess any controlled substances without a valid prescription. It is
immaterial whether the district court orally pronounced this condition
because pronouncement was not necessary. Mandatory conditions under 18
U.S.C. § 3583(d) need not be pronounced. Diggles, 957 F.3d at 559 (“If a
condition is required, making an objection futile, the court need not
3
Cf., e.g., United States v. Zavala, 835 F. App’x 767, 768 (5th Cir. 2021) (per
curiam) (reviewing for abuse of discretion where written judgment imposing “inpatient or
outpatient” treatment “conflict[ed] with the orally pronounced condition of only
‘outpatient’ treatment”); United States v. Garcia, 855 F. App’x 980, 980 (5th Cir. 2021)
(per curiam) (same).
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pronounce it.”). Here, the challenged condition overlaps with the mandatory
condition in § 3583(d) “that the defendant not unlawfully possess a
controlled substance.” See Tex. Health & Safety Code § 481.117(a)
(making it a crime to possess a controlled substance without a valid
prescription). Accordingly, the district court did not err by including this
condition in Hernandez’s written judgment. Cf., e.g., United States v.
Vasquez-Puente, 922 F.3d 700, 705–06 (5th Cir. 2019) (no abuse of discretion
where “no reentry” condition duplicated mandatory condition that
defendant not reenter country illegally).
D. Condition seven (substance-abuse testing)
Hernandez also challenges the condition that she submit to substance-
abuse testing and pay the costs if able. Neither the district court nor the PSR
mentioned substance-abuse testing. Hernandez was already obligated,
however, to participate in some drug testing. See 18 U.S.C. § 3583; United
States v. Lozano, 834 F. App’x 69, 75 (5th Cir. 2020) (per curiam). But
“unlike the mandatory condition, the special condition in the judgment does
not specify a date range for the first test, limit the number of tests required,
and requires that [appellant] pay for testing if [she] is able.” United States v.
Johnson, 850 F. App’x 894, 896–97 (5th Cir. 2021) (per curiam). As a result,
the condition in the judgment is discretionary and “oral notice . . . at the
sentencing hearing cannot be dispensed with.” Id. at 897. Thus, inclusion of
the additional testing requirement in the written judgment was an abuse of
discretion.
E. Conditions eight (alcohol possession) and nine (psychoactive substances)
Finally, Hernandez challenges the conditions requiring her to abstain
from possessing alcohol and psychoactive substances. Where “neither the
[PSR] nor the district court’s comments at sentencing mention abstaining
from alcohol and intoxicants,” we have held the inclusion of such conditions
in the judgment is an abuse of discretion. United States v. Rodriguez, 852 F.
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App’x 810, 812 (5th Cir. 2021) (per curiam); see also United States v. De La
Cruz, 819 F. App’x 266, 267 (5th Cir. 2020) (per curiam); United States v.
Boshears, 818 F. App’x 337, 338 (5th Cir. 2020) (per curiam). This is true
even where “the record indicates that [the appellant] had a history of alcohol
and drug abuse” if the PSR did not include abstention conditions. See United
States v. Martinez Viera, 780 F. App’x 192, 192–193 (5th Cir. 2019) (per
curiam).
* * *
In sum, we remand to the district court to conform the written
judgment accordingly. See United States v. Chavez, ___ F. App’x ____,
2022 WL 767033, at *5 (5th Cir. Mar. 14, 2022) (per curiam) (explaining that
“[t]he practice of this Circuit, both before and after Diggles, has been to
remand pronouncement-error cases to the district court with instructions to
amend the written judgment to reflect only the conditions orally pronounced
at sentence and those conditions which need not be pronounced” (collecting
cases)). Nothing prevents the district court, however, from modifying or
enlarging the conditions of supervised release in accordance with § 3583 and
the rules of criminal procedure. Ibid. (citing 18 U.S.C. § 3583(e); Fed. R.
Crim. P. 32.1(c)).
IV.
Both parties also request a limited remand to correct a clerical error in
the judgment. We “may at any time correct a clerical error in a judgment,
order, or other part of the record, or correct an error in the record arising
from oversight or omission.” Fed. R. Crim. P. 36. We have previously
remanded for correction of clerical errors in the judgment raised for the first
time on appeal. See, e.g., United States v. Perez-Melis, 882 F.3d 161, 168 (5th
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Cir. 2018); United States v. Gamboa, 136 F. App’x 713, 715 (5th Cir. 2005)
(per curiam).
At sentencing, the government moved in compliance with the plea
agreement for dismissal of counts one, three, and four. The district court
granted the motion, but the written judgment reflects the dismissal of only
counts one and three, not four. We therefore remand for the district court to
correct that omission.
V.
Accordingly, the district court’s judgment is AFFIRMED in part,
VACATED in part, and REMANDED for further proceedings consistent
with this opinion.
9