United States v. Terence Millsaps

United States Court of Appeals
for the Fifth Circuit

No. 18-40096
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Terence Millsaps,

Defendant—Appellant.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:17-CR-35-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges.
Per Curiam:*
Terence Millsaps appeals the sentence imposed following his guilty-
plea conviction for assaulting a federal officer. Specifically, Millsaps
contends that there is an impermissible conflict between the district court’s

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 30, 2020

Lyle W. Cayce
Clerk
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No. 18-40096
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oral pronouncement of sentence and the written judgment imposing two
special conditions of supervised release.
Because a defendant “has a constitutional right to be present at
sentencing,” an orally pronounced sentence controls in the case of a conflict
with the written sentence. United States v. Martinez, 250 F.3d 941, 942 (5th
Cir. 2001). Such a conflict may arise where “a sentencing court omits certain
[supervised release] conditions from its oral pronouncement but includes
them in its written judgment.” United States v. Vasquez-Puente, 922 F.3d
700, 703 (5th Cir. 2019). On the other hand, if there is merely an ambiguity
between the oral and written versions of a condition, “the entire record must
be examined to determine the district court’s true intent.” Martinez, 250
F.3d at 942.
Since the district court expressly adopted at sentencing, and thereby
orally pronounced, the special conditions listed in the presentence report
(PSR), Millsaps had an opportunity to object to those conditions. See United
States v. Diggles, 957 F.3d 551, 559-62 (5th Cir. 2020) (en banc). Because he
failed to do so, the plain error standard of review applies. See id.; see also
Puckett v. United States, 556 U.S. 129, 135 (2009) (holding that the plain error
standard requires the defendant to show a clear or obvious error that affected
his substantial rights).
Given that the special conditions listed in the PSR and adopted by the
district court at sentencing are identical to those in the written judgment,
there is no apparent conflict between the oral and written sentences. See
Vasquez-Puente, 922 F.3d at 703. Even if it is assumed arguendo that the
district court created ambiguity by describing the two adopted special
conditions in abbreviated terms, the record does not indicate that the district
court intended thereby to alter the terms of those special conditions. See
Martinez, 250 F.3d at 942. The district court did not, therefore, create a clear
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or obvious conflict between the oral and written supervised release
conditions. See Puckett, 556 U.S. at 135; Vasquez-Puente, 922 F.3d at 703.
Because Millsaps has failed to demonstrate plain error, see Puckett, 556 U.S.
at 135, the judgment of the district court is AFFIRMED.
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