Sentencing; Conflicts between the oral sentence pronounced at the sentencing hearing & the written judgment of sentence (JOS); Applicability of defendant’s appeal waiver; Whether defendant was challenging the written JOS rather than the sentence itself; United States v Hayden; Using the written JOS to resolve ambiguity in the oral sentence; United States v Denny

The court joined other circuits by holding that a defendant arguing that the written JOS and oral sentence conflict is not challenging the sentence but rather, “is seeking to avoid enforcement of the written” JOS. Thus, defendant-Shaw’s plea agreement appeal waiver did not waive his right to challenge the differences between the district court’s oral sentence pronouncement and its written JOS. It also found that the written JOS could be used to resolve an ambiguity in the oral sentence, and that substance-abuse treatment was “part of Shaw’s sentence, with the treatment program, frequency, and duration” to be decided by the probation office. His plea agreement provided he could not appeal his sentence if it was within the guideline range, which it was. The parties disagreed whether he needed substance abuse treatment. The district court stated that it would “include the condition on three years of supervised release, as directed by probation. They may decide he doesn’t need it either. But if directed by the Office of Probation, that he participate in substance abuse treatment, in addition to” other things, “all as directed.” The written JOS stated that “defendant shall participate in substance abuse testing and treatment as directed by the probation officer.” The court first rejected the government’s argument that the plea agreement prohibited an appeal. Shaw asked it “to ‘vacate the written judgment’s mandatory substance-abuse treatment condition’ because he believes that condition was not part of his actual sentence—i.e., it was not orally pronounced.” Thus, his argument was outside the scope of his appeal waiver. As to the merits, when an oral sentence conflicts with the written JOS, the oral sentence controls. But where the oral sentence was “ambiguous, the written judgment ‘can be used to resolve’ that ambiguity.” The court noted that because “probation officers are ‘non-judicial officers,’ they cannot constitutionally impose supervised-release conditions.” But it has “held that it is constitutional for a sentencing court to order that a defendant ‘shall participate’ in a drug-treatment program ‘as directed by the probation officer.’” It was difficult to determine “whether the district court at the sentencing hearing sought to impose treatment ‘as directed’ or ‘if directed’ by probation.” Because the court could not say that the oral sentence was clear, it could consider the written JOS, and it “has interpreted identical sentencing language to ‘clearly specif[y]’ that treatment is required, leaving only ‘the details of the treatment’ to the probation office.” Affirmed.