Case Information
*1 Before HE NRY , BR ISC OE , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
*2 On M ay 13, 2005, Donald Chalupa was charged with violating his supervised release based on (1) his arrest for driving under the influence of alcohol (DUI) and driving with an expired registration, (2) his consumption of alcohol, and (3) his failure to submit to drug testing. After Chalupa admitted to all three allegations, the district court revoked his supervised release and sentenced him to eight months imprisonment followed by twenty-eight months of supervised release. On appeal, Chalupa claims the district court improperly considered his unadjudicated DUI arrest as a basis for revoking his supervised release and imposing sentence. He also contends the district court’s written order erroneously added a condition on his sentence that was not included in the oral pronouncement of sentence. Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we AFFIRM .
Background
After serving a thirty-five month sentence of imprisonment for possession of a firearm by a convicted felon, Chalupa w as placed on supervised release for a period of thirty-six months. In June, 2004, Chalupa was charged with violations of the terms of his supervised release, including absconding from supervision and failure to submit to drug and alcohol testing. The district court did not re- imprison Chalupa, but reinstated the remaining balance of his supervised release with the special condition that he “participate . . . in a program of substance abuse treatment which may include testing for substance abuse and contribute to the *3 cost of treatment in an amount to be determined by the [United States Probation Office].” (R. Supp. Vol. I, Doc. 14 at 2.) The court also ordered Chalupa to “abstain from all use of alcohol or alcoholic beverages.” ( Id. )
Less than one year later, Chalupa was again charged with violating the terms of his supervised release. The allegations included his arrest by the Utah Highway Patrol for DUI and expired registration, his admission to law enforcement officers that he had consumed alcohol, and his failure to submit to scheduled drug testing on three different occasions. The presentence report further indicated “the defendant failed to notify the United States Probation Office of [the DUI] arrest immediately following his release from jail . . . .” (R. Vol. III at 2. ) At sentencing, Chalupa admitted to all three allegations but insisted there were legitimate reasons for his failure to report for the drug testings. He also asserted he had sent the DUI paperwork to his probation officer the day after his arrest.
The presentence report determined each allegation constituted a Grade C violation. W ith a criminal history category of III, the report calculated the guideline range as five to eleven months imprisonment. Chalupa requested that the court sentence him to eleven months imprisonment and terminate any supervised release. The district court denied his request, finding “the best way [for Chalupa] to move on with [his] life is to comply with the conditions [of supervised release].” (Vol. II at 8.) The district court then sentenced Chalupa to *4 eight months imprisonment followed by twenty-eight months supervised release. In addition to the standard conditions of supervised release, the district court orally ordered Chalupa to “submit to drug and/or alcohol testing” and “participate in drug and/or alcohol abuse treatment as directed by the probation office.” ( Id. at 9.) However, in the written order, the district court stated “[t]he defendant will submit to drug/alcohol testing, as directed by the probation office, and pay a one- time $115 fee to partially defer the costs of collection and testing[.]” (Vol. I, Doc. 23 at 2.) Chalupa appeals from this sentence.
Discussion
Chalupa raises two issues on appeal. First, he contends the district court erred in considering his DUI arrest as a basis for revoking his supervised release and at sentencing. Second, he maintains the requirement that he pay $115.00 to offset the costs of drug testing was not part of the district court’s oral pronouncement and therefore should be stricken from the written sentencing order. W e address each argument in turn.
1.
Consideration of Arrest as a Supervised Release Violation
Chalupa did not object to the court’s consideration of his arrest at the
revocation hearing. Therefore, we review for plain error.
United States v.
M itchell
,
On appeal, Chalupa posits that the fact he was arrested did not violate any
condition of his supervised release. In addition, the mere fact of an arrest is
generally not considered probative as to whether the underlying act occurred.
United States v. Robinson
,
The government admits Chalupa’s arrest, by itself, was not a violation of his supervised release conditions but maintains it is unclear whether the district *6 court determined Chalupa violated his supervised release based on his arrest or a violation based on his failure to report it. See USSG §5D1.3(c)(11). A careful review of the record, however, reveals that a failure to report the arrest was never included in the allegations providing the basis for revocation. In addition, the written order of the court observes that Chalupa admitted to each allegation . Because the district court apparently found Chalupa guilty of all three allegations and the first allegation was not a violation of his supervised release, we find the court erred and the error was plain.
“Satisfying the third prong of plain-error review - that the error affects
substantial rights - usually means that the error must have affected the outcome of
the district court proceedings.”
United States v. Gonzalez-Huerta
,
“Under the fourth prong of plain-error review , a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” . W e will notice a non-constitutional error only when the defendant demonstrates the error is “particularly egregious” and a failure to correct it would result in “a miscarriage *7 of justice.” Id . (quotations omitted). In his brief on appeal, Chalupa makes no effort to argue either prong of this dual standard. M oreover, the uncontradicted facts establish the admitted allegations were Grade C violations. Under USSG §7B1.4, one G rade C violation (coupled w ith Chalupa’s criminal history category of III), by itself, would result in the same recommended term of imprisonment — five to eleven months. Because Chalupa admitted to two legitimate Grade C violations, his sentence is well “within th[e] national norm.” . at 738. Since “there is no record evidence to support a lower sentence,” we conclude Chalupa has not shown his “sentence is particularly egregious or a miscarriage of justice.” . at 738-39. Accordingly, we decline to remand this case for resentencing.
2. Discrepancies Between the Oral and W ritten Judgment
Chalupa contends the requirement to pay $115.00 to defray the costs of
drug/alcohol testing contained in the district court’s w ritten order conflicts w ith
the district court’s silence on this condition at his sentencing hearing. Generally,
we review the conditions of supervised release for an abuse of discretion, even
absent an objection at the hearing, when the defendant was not provided an
adequate opportunity to object.
United States v. Bartsma
,
The government points to cases from other circuits that expressly hold the
failure to include the payment of the costs of drug testing and treatment in the
oral pronouncement does not conflict with the written order’s requirement to do
so.
See United States v. Vega
,
Our case law suggests a different approach. In
Villano
, the defendant and
*9
two co-defendants were sentenced on three counts by the same federal judge on
the same day. W hen sentencing Villano’s co-defendants, the court ordered the
sentences on each count to run consecutively. W hen sentencing Villano,
however, the district court mistakenly stated only two of the counts would run
consecutively, unlike the sentence imposed upon his co-defendants. Because the
court’s silence on the third count raised the presumption it would run concurrent
with his other two sentences, Villano’s oral sentence totaled eight years. In
contrast, the written judgment stated Villano’s sentence was ten years, identical to
that of his co-defendants. On appeal, he argued his sentence should be reduced to
reflect the court’s oral pronouncement. W e agreed, even though the district court
clearly stated he intended to sentence V illano to ten years. W e stated, “[b]ecause
there [was] no ambiguity in [the oral judgment] and there [was] a conflict
between the oral sentence and the written judgment, . . . the oral sentence
controls.”
Villano
,
In so holding, we rejected the argument that the presence of a conflict initiates an “attempt to discern the sentencing judge’s intentions.” . An intent- based approach w ould dilute the principles that underlie the traditional rules — the defendant’s right to be present at sentencing. . In other words, an unambiguous oral sentence will stand despite the intent of the sentencing court as set forth in the written judgment.
“[T]he law continues to be that the legally effective sentence is the oral
*10
sentence” and “the true function of the written document is to help clarify an
ambiguous oral sentence by providing evidence of what was stated.” . at 1452
(emphasis added). The
en banc Villano
decision included three concurring
opinions which raised the difficulties inherent in the many forms ambiguity can
take, specifically, judicial silence.
Id.
at 1454 (M cKay, J., concurring) (“The
majority opinion noticeably omits silence from its list of ambiguities.”); . at
1458 (Logan, J., concurring) (“W hat if the orally pronounced sentence is silent or
ambiguous on an important matter?”);
Id.
at 1460 (Anderson, J., concurring)
(relying on his dissent in
United States v. Earley
,
In this instance, Chalupa’s prior supervised release required he “contribute to the cost of treatment . . . which may include testing for substance abuse.” (R. Supp. Vol I, Doc. 14 at 2.) During the oral disposition of his current violation of conditional release, after hearing arguments on Chalupa’s request for termination of supervised release after imprisonment, the district court stated his inclination was to “ continue the supervision with the conditions that are recommended [in the presentence report].” (R. Vol. II at 8.) The recommendation in the presentence report stated: “If supervised release is revoked and the term of imprisonment imposed is less than the maximum term of imprisonment imposable upon revocation, the defendant may . . . be ordered to recommence supervised release . . . .” (R . Vol. III at 5.) Chalupa was aware of his previous requirement to *11 contribute to costs. Thus, at most, the differences between the district court’s oral and written pronouncements create an ambiguity clarified by the written judgment. Accordingly, we AFFIRM the district court’s judgment and sentence.
Entered by the C ourt: Terrence L. O ’Brien United States Circuit Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).