On the other hand, the only other circuit to address this precise question concluded that delegation to a probation officer was permissible under § 3672, despite controlling precedent holding that the court's authority under a restitution statute is exclusive and nondelegable. United States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002) (distinguishing United States v. Albro, 32 F.3d 173 (5th Cir. 1994) (per curiam)). In Warden, the condition read: "The defendant will incur costs associated with such [treatment], based on ability to pay as determined by the probation officer."
United States v. Torres-Aguilar , 352 F.3d 934, 935 (5th Cir. 2003) (per curiam) (quoting United States v. Martinez , 250 F.3d 941, 942 (5th Cir. 2001) (per curiam)). If, however, there is "merely an ambiguity" between oral and written sentences, "then ‘we must look to the intent of the sentencing court, as evidenced in the record’ to determine the defendant's sentence." Id. (quoting United States v. Warden , 291 F.3d 363, 365 (5th Cir. 2002) ); see also Bigelow , 462 F.3d at 381 (distinguishing "ambiguity" in sentences from "conflicting" oral and written sentences). In general, a conflict exists "[i]f the written judgment broadens the restrictions or requirements of supervised release from an oral pronouncement."
Because Torres-Aguilar "had no opportunity to object to or comment on the special condition . . . imposed in the written order," on appeal we "review the district court's imposition of [the] special condition for an abuse of discretion." United States v. Warden, 291 F.3d 363, 365 n. 1 (5th Cir. 2002). In this circuit, "we have long held that a defendant has a constitutional right to be present at sentencing."
We review the imposition of conditions of supervised release for an abuse of discretion. United States v. Huor, 852 F.3d 392, 397 (5th Cir. 2017); United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).
Accordingly, we review for abuse of discretion. See United States v. Warden , 291 F.3d 363, 365 n.1 (5th Cir. 2002). If the oral pronouncement and written judgment conflict, the former controls.
Although the appendix to Vasquez-Ruiz's presentence report contained the special condition that he "immediately report" to immigration officials, the district court did not ask any targeted questions about supervised-release conditions during the sentencing hearing. Vasquez-Ruiz, thus, did not have a meaningful opportunity to object to the challenged special condition at his sentencing hearing. Consequently, our review is for an abuse of discretion. See United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). "[W]e have long held that a defendant has a constitutional right to be present at sentencing."
But the requirement that the defendant bear the costs of a condition of supervised release, "even if mentioned for the first time in the written judgment," does not create a conflict with the oral pronouncement at sentencing. United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003); see also United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002). The imposition of costs "creates, if anything, an ambiguity."
United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (per curiam) (internal quotation marks omitted). See United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (no conflict arose when the pronouncement required drug abuse counseling and the judgment also imposed costs for the counseling). Id.
As for the condition requiring payment of financial penalties, we do not see how it could conflict with an oral sentence imposing those penalties. See United States v. Warden , 291 F.3d 363, 365 (5th Cir. 2002) (explaining that a written condition does not conflict with an unpronounced condition if the condition "is clearly consistent with the district court’s intent ... as evidenced in the statements made by the court at the sentencing hearing"). Requiring a defendant to make those payments is consistent with, if not essential to, those penalties.
We have affirmed such language before, explaining that it is nothing more than "an ambiguity" that is consistent with the sentencing court's intent (despite a lack of oral pronouncement). See, e.g., United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (affirming written judgment's added language requiring defendant to pay for costs of drug treatment, sex offender counseling, and anger management counseling). In Vega, 332 F.3d at 852, we reasoned that "the requirement that a defendant bear the costs of his drug treatment is 'clearly consistent' with the court's intent that he attend treatment," and concluded that "no modification" of the judgment was warranted.