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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-41019
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

JOSE VEGA III,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
___________________________________________________
March 17, 2003
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Jose Vega III pleaded guilty to one count
of a two-count indictment charging him with possession with intent
to distribute over 1,000 kilograms of marijuana in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). He now appeals his sentence,
arguing that the district court's oral and written judgments
conflict because the written judgment includes several special
conditions of supervised release that were not mentioned at the
sentencing hearing. For the following reasons, we modify the

sentence and affirm as modified.1
I. FACTS AND PROCEEDINGS
Vega alleges that during the sentencing hearing, the district
court never mentioned several special conditions of supervision
that subsequently appeared in the written judgment, including (1)
his responsibility for the costs of drug and alcohol treatment; (2)
a provision requiring inpatient drug treatment, if necessary; (3)
specific drug testing methods; and (4) the requirement that he
comply with the rules and regulations of the drug treatment agency.
Vega argues that because these special conditions are more
restrictive than those originally imposed at sentencing, the oral
and written judgments conflict and the additional requirements
included only in the written judgment must be excised.
II. ANALYSIS
We have previously rejected many of Vega's arguments. First,
we have expressly held that imposition of the 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
1 We review objections to special conditions imposed in a
written judgment for abuse of discretion. United States v.
Warden, 291 F.3d 363, 365 n.1 (5th Cir.2002)(explaining that
normally objections raised for the first time on appeal are
reviewed for plain error, but "because [the defendant] had no
opportunity to object to or comment on the special conditions as
imposed in the written order, we will review the district court's
imposition of special conditions for an abuse of discretion").
2

judgments, but "creates, if anything, an ambiguity."2 This
ambiguity is resolved by examining the record for evidence of the
sentencing court's intent. As the requirement that a defendant
bear the costs of his drug treatment is "clearly consistent" with
the court's intent that he attend treatment, the two judgments do
not conflict and no modification of the sentence is warranted.
Several of Vega's remaining arguments are similarly meritless.
First, the district court specifically mentioned inpatient
treatment at sentencing, so its inclusion in the written judgment
is entirely consistent with the oral sentence. Second, the
requirement that Vega "comply with all the rules and regulations of
the treatment agency" is, for obvious reasons, consistent with the
drug treatment condition ordered at sentencing.3
Vega's only meritorious issue on appeal is whether the
district court's inclusion of the special condition of "further
drug-detection techniques in addition to those performed by the
treatment agency" in the written judgment conflicts with the oral
sentence ---- which required only that Vega "participate in a program
2 Warden, 291 F.3d at 365.
3 Vega also argues that the district court improperly
delegated authority to the probation officer to determine the
length of his drug treatment. Even if the district court did
delegate authority, Vega did not object to this condition at
sentencing, so our review is for plain error only. We conclude
that any error by the district court in this regard was not plain
or obvious, as we have not previously addressed this issue. See
United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.
1994)(en banc), abrogated in part, Johnson v. United States, 520
U.S. 461 (1997).
3

for drug and alcohol abuse addiction as required by the probation
office, including inpatient if required."
This narrow question has not been squarely addressed in a
published opinion by this or any other circuit. Like other
circuits, however, we have long held that a defendant has a
constitutional right to be present at sentencing.4 This
constitutional right is the foundation of the rule that if there is
a conflict between the oral pronouncement and written judgment, the
oral pronouncement controls.5 Under this reasoning, we have held,
for example, that 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.6
We likewise conclude that the condition that Vega undergo
additional drug testing is unrelated to the drug treatment
originally ordered at sentencing and creates a conflict between the
written and oral judgments. Accordingly, we amend the written
judgment to conform with the oral pronouncement in this case. In
doing so, we note that requiring sentencing courts to include all
4 United States v. Martinez, 250 F.3d 941, 941 (5th Cir.
2001) (citing Fed. R. Crim. P. 43(a)("The defendant shall be
present at . . . the imposition of sentence . . . .").
5 Id.
6 Id. at 942 ("Because the district court failed to mention
mandatory drug treatment, a special condition, at sentencing, we
remand the case for the district court to amend its written
judgment to its oral sentence.").
4

special conditions of probation in the oral sentence serves several
salutary purposes. First, as noted, a defendant has a
constitutional right to be present at sentencing. For this reason,
probation officers and district courts should strive to include all
special conditions of probation in the oral sentence. Second, as
a practical matter, if we were to allow additional special
conditions to be imposed in the written judgment, this practice
could lead to unnecessary post-sentence motions and appeals.
Conceivably, some special conditions may ---- for logistical or other
reasons ---- be impractical or ill-suited to a particular defendant.
If the court is required to announce these conditions at sentencing
---- when the defendant, his counsel, the probation officer, and the
sentencing judge are all present ---- the conditions could be
appropriately tailored or modified to meet the needs of the
defendant.
Finally, requiring the sentencing court to include all special
conditions in the oral pronouncement does not impose an onerous
burden on probation officers, who are not precluded from conducting
further drug testing. The probation officer merely needs to
include the one-sentence condition in the sentencing recommendation
that is prepared for and provided to the district court before it
orally pronounces sentence.7
7 The spate of recent appeals on this issue indicates that
additional drug testing is commonly imposed in conjunction with a
drug treatment program. Such rehabilitative efforts are
laudatory. We simply recommend that probation and pretrial
5

III. CONCLUSION
For these reasons, we modify the sentence by excising the
portion of the written sentence that states "[t]he defendant shall
submit to drug-detection techniques, in addition to those performed
by the treatment agency, as directed by the probation officer."
Vega's sentence is MODIFIED, and, as modified, is AFFIRMED.
services officers coordinate the details of a "model" proposed
drug treatment and testing condition to be used, if appropriate,
in cases when the probation officer is recommending drug
treatment.
6