43 F.4th 467
5th Cir.2022Background
- Porter pleaded guilty to receipt of child pornography and was sentenced to 84 months’ imprisonment and 10 years’ supervised release.
- Within a year of release he violated supervision: unauthorized cell phones, failure to attend sex-offender treatment, failure to report, and viewing pornographic material; a phone forensic report showed unauthorized images and possible deletion.
- Probation filed a sworn revocation petition and produced documentary evidence; Porter pleaded true to the petition and asked for continuation of supervision.
- The prosecutor argued Porter had not taken conditions seriously and requested a nine-month custodial sentence with reimposition of the original supervised-release term.
- The district court revoked supervision and sentenced Porter to nine months’ imprisonment, twice stating it was reimposing the original ten-year supervised-release term and reading conditions into the record "out of abundance of caution."
- The written judgment contained a broader prohibition (no sexually oriented or stimulating materials of adults or children) than the orally pronounced condition (ban on visual depictions as defined in 18 U.S.C. § 2256(5)). Porter appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by relying on prosecutor’s unsworn statements at the revocation hearing | Prosecutor’s remarks were supported and corroborated by the sworn revocation petition and documentary evidence | Court relied on unsworn, uncorroborated comments (invoking Foley) | No plain error: comments were corroborated by sworn petition and evidence; Porter pleaded true, so no prejudice |
| Whether the written judgment imposed conditions more burdensome than those orally pronounced | No material conflict: court expressly reimposed original conditions and clarified intent; oral ambiguity resolved by record | Written prohibition on "sexually oriented/stimulating materials" is broader than orally pronounced ban on visual depictions | No reversible error: record shows clear intent to reimpose original conditions; any ambiguity resolved and no substantial-rights prejudice |
Key Cases Cited
- United States v. Foley, 946 F.3d 681 (5th Cir. 2020) (reversal where revocation relied on bare, uncorroborated allegations)
- United States v. Rojas-Luna, 522 F.3d 502 (5th Cir. 2008) (plain-error standard for unpreserved sentencing claims)
- Puckett v. United States, 556 U.S. 129 (2009) (clarifying plain-error review framework)
- United States v. Hinson, 429 F.3d 114 (5th Cir. 2005) (admission may alone justify revocation)
- United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (oral pronouncement controls absent ambiguity; notice/opportunity to object)
- United States v. Tanner, 984 F.3d 454 (5th Cir. 2021) (resolve internal inconsistency by looking to record of court’s intent)
- United States v. Barber, 865 F.3d 837 (5th Cir. 2017) (vacating when oral pronouncement was impermissibly ambiguous)
- United States v. Garcia, 604 F.3d 186 (5th Cir. 2010) (ambiguous pronouncement can require vacatur and remand)