USA v. Ronald George, Jr.
UNPUBLISHED OPINION FILED. [10-10504 Affirmed ] Judge: JLD , Judge: EBC , Judge: PRO Mandate pull date is 03/21/2012 for Appellant Ronald Evan George Jr.; denying as unnecessary motion for summary affirmance filed by Appellee USA [6918190-2]; denying motion to dismiss appeal filed by Appellee USA [6918190-3]; denying as unnecessay motion to extend time to file appellee's brief filed by Appellee USA [6918190-4] [10-10504]
Date Filed: 02/29/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
February 29, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
RONALD EVAN GEORGE, JR.,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:09-CR-81-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
Ronald George, Jr., pleaded guilty pursuant to a plea agreement to one
count of bank fraud in violation of 18 U.S.C. § 1344. As part of the plea
agreement, George waived his right to appeal his conviction and sentence,
reserving the right only to appeal a sentence exceeding the statutory maximum
and to challenge the voluntariness of his guilty plea or the appeal waiver.
In this appeal, George argues that there was a conflict between the oral
sentence and the written judgment and that the case should be remanded so
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 02/29/2012
that the written judgment can be amended to conform to the oral
pronouncement. George argues that the inclusion in the written judgment of the
special condition that he “contribute to the costs of” substance-abuse treatment
services “at a rate of at least $5.00 per month” creates a conflict that requires
remand because the district court did not pronounce this condition at sentencing.
George specifically argues that the failure of the written judgment to set a
maximum limit placed an additional burden on him that was not mentioned in
the oral pronouncement of his sentence and which therefore created a conflict.
He further asserts that because the inclusion in the written judgment of a
special condition not pronounced at sentencing violated his right to be present
at sentencing, the appeal waiver should not be enforced.
The Government has filed a motion to dismiss, asserting that the appeal
waiver bars the instant appeal.
The Government alternatively moves for
summary affirmance on the basis that George’s claim that there is a conflict
between the written and oral judgment regarding the payment of treatment is
foreclosed by this court’s holding in United States v. Vega, 332 F.3d 849, 852 (5th
Cir. 2003). The Government also alternatively moves for an extension to time
to file a brief.
Standard of review
George raises his arguments for the first time on appeal. However, we
review his claims for abuse of discretion, and not for plain error, given that he
did not have the opportunity at sentencing to object to the conditions imposed
in the written judgment. See United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006); see also United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir.
2002) (noting that review of the district court’s imposition of special conditions
would be reviewed for abuse of discretion because the defendant did not have the
opportunity to object to or comment on the special conditions contained in the
Date Filed: 02/29/2012
As for whether the appeal waiver bars the instant appeal, we pretermit
this issue because George has failed to demonstrate that there exists a conflict
for which remand is warranted. See United States v. Story, 439 F.3d 230, 230-31
(5th Cir. 2006) (noting that the existence of a valid appeal waiver does not
implicate this court’s jurisdiction).
In general, if a written judgment conflicts with an oral pronouncement of
sentence, the oral pronouncement controls. United States v. Bigelow, 462 F.3d
378, 380 (5th Cir. 2006). Further, “if the district court fails to mention a special
condition at sentencing, its subsequent inclusion in the written judgment creates
a conflict that requires amendment of the written judgment to conform with the
oral pronouncement.” See United States v. Torres-Aguilar, 352 F.3d 934, 936,
938 (5th Cir. 2003). However, we have held that the “imposition of costs of drug
treatment, even if mentioned for the first time in the written judgment, does not
create a conflict between the written and oral judgments, but ‘creates if
anything, an ambiguity.’” United States v. Vega, 332 F.3d 849, 852 (5th Cir.
2003) (citing United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002)).
Because “the requirement that [George] bear the costs of his drug treatment is
‘clearly consistent’ with the district court’s intent that [George] attend
treatment,” there is no conflict between the written and oral judgment, and
modification of the sentence is not warranted. See id.
Accordingly, the Government’s motion to dismiss is DENIED; the
Government’s motions for summary affirmance and for an extension of time to
file a brief are DENIED as unnecessary; and the judgment of the district court
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