United States of America v. Tracey Shaw

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0147p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRACEY SHAW,
Defendant-Appellant.
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No. 24-5461
Appeal from the United States District Court for the Western District of Tennessee at Memphis.
No. 2:22-cr-20269-1—Mark S. Norris Sr., District Judge.
Decided and Filed: June 5, 2025
Before: GIBBONS, WHITE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Houston Goddard, GODDARD POPE PLLC, Nashville, Tennessee, for Appellant.
Naya Bedini, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
WHITE, J., delivered the opinion of the court in which GIBBONS, J., concurred, and
MURPHY, J., concurred in part and in the judgment. MURPHY, J. (pp. 9–10), delivered a
separate concurring opinion.
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OPINION
_________________
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Tracey Shaw appeals the
written judgment issued by the district court after Shaw pleaded guilty to knowingly possessing a
firearm as a convicted felon. Shaw argues that the written judgment conflicts with the district
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No. 24-5461 United States v. Shaw Page 2
court’s oral pronouncement of his sentence. Because the written judgment clarifies the district
court’s ambiguous oral sentence, we AFFIRM.
I. Facts
In January 2023, the government indicted Shaw on one count of knowingly possessing a
gun as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Shaw pleaded guilty to that lone
count. As part of the plea agreement, Shaw waived “his right to appeal any sentence imposed by
the Court and the manner in which the sentence is determined so long as it is within the
applicable guideline range, or lower, whatever the guideline range might be.” R. 53, PID 71.
At the sentencing hearing, the district court determined that Shaw’s Guidelines range was
87 to 108 months. The government asked for a 92-month sentence along with mandatory
substance-abuse treatment, asserting that Shaw had an “unhealthy relationship with marijuana.”
R. 90, PID 343, 350–51. Shaw’s counsel argued that such treatment was unnecessary because
Shaw “doesn’t have a drug problem” and “doesn’t need drug rehabilitation.” Id. at 363.
The district court sentenced Shaw to 92 months in prison and three years of supervised
release. Addressing the parties’ disagreement over substance-abuse treatment, the district court
stated that it was “not going make a recommendation about substance abuse treatment” during
Shaw’s incarceration. Id. at 380. Rather, the court chose to “leave that to the Bureau of Prisons
while [Shaw is] in custody.” Id. Moving on to supervised release, the district court stated:
I will 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, as directed, moral reconation therapy, vocational training and/or maintenance
of full time employment, all as directed.
Id. After the sentencing hearing, the district court issued a written judgment, which stated: “The
defendant shall participate in substance abuse testing and treatment as directed by the probation
officer.” R. 72, PID 152. Shaw timely appealed.

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No. 24-5461 United States v. Shaw Page 3
II. Analysis
Shaw’s sole argument is that the written judgment conflicts with the sentence the district
court pronounced orally at the sentencing hearing. Specifically, Shaw reads the written
judgment to impose “an unequivocal command that Shaw must participate in substance-abuse
treatment” on supervised release. Appellant’s Brief at 11. Shaw asserts that at the sentencing
hearing, the district court effectively stated that the probation office would decide whether Shaw
would participate in such treatment. Shaw thus asks us to “vacate the written judgment’s
mandatory substance-abuse treatment condition.” Id. at 17.
The government has two responses. First, it argues that the sentencing appeal waiver in
Shaw’s plea agreement bars this appeal. Second, on the merits, it argues that the written
judgment and the oral sentence are consistent—both clearly impose mandatory substance-abuse
treatment on supervised release. And if there is any ambiguity in the oral sentence, the
government argues, this court may use the written judgment to clarify the district court’s intent.
We address each argument in turn.
A. Appeal Waiver
To start, the government argues that Shaw’s appeal is barred by the appeal waiver in his
plea agreement, in which Shaw waived “the right to appeal any sentence . . . so long as it is
within the applicable guideline range.” Appellee’s Brief at 12 (quoting R. 53, PID 71). Shaw
responds that when a defendant argues that the oral sentence conflicts with the written judgment,
the defendant is challenging the written judgment, not the sentence itself.
We agree. “A criminal defendant has the right—rooted in the Fifth Amendment’s Due
Process Clause—to be present at his sentencing.” United States v. Hayden, 102 F.4th 368, 371
(6th Cir. 2024). So the punishment announced from the bench in the defendant’s presence “is
the sentence.” United States v. Harris, 51 F.4th 705, 720 (7th Cir. 2022) (emphasis added). The
written judgment, on the other hand, “is merely evidence of the sentence.” United States v.
Penson, 526 F.3d 331, 334 (6th Cir. 2008) (quoting Sasser v. United States, 352 F.2d 796, 797
(6th Cir. 1965)). Simply put, a sentencing court “may impose one and only one” sentence, and
“the written judgment form is a nullity to the extent it conflicts with” the oral sentence. United

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No. 24-5461 United States v. Shaw Page 4
States v. Booker, 436 F.3d 238, 245 (D.C. Cir. 2006).1 Thus, when a defendant argues on appeal
that the written judgment and oral sentence conflict, he is not challenging his sentence. Rather,
he is seeking to avoid enforcement of the written judgment, which is not the sentence and which
may very well be a “nullity.” Id.
The Fourth and Seventh Circuits have reached the same conclusion. As the Fourth
Circuit explained, if a defendant is “right on the merits” of his claim that the oral sentence
conflicts with the written judgment, he is not “appeal[ling] the ‘sentence’ actually ‘imposed’ on
him.” United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (quoting United States v.
Tancil, 817 F. App’x 234, 236 (7th Cir. 2020)). He is not, for example, “challeng[ing] the
substantive or procedural reasonableness of his sentence.” Id. Rather, he is making “the ‘more
elementary contention’ that certain conditions in his written judgment ‘were not part of his
sentence’ at all.” Id. at 345 (quoting United States v. Rogers, 961 F.3d 291, 295 (4th Cir. 2020)).
Similarly, the Seventh Circuit reasoned that because a defendant’s “actual sentence” is the “oral
pronouncement”—“not the written judgment”—a defendant asserting a conflict between the two
is not “challenging the district court’s sentence.” Harris, 51 F.4th at 720 (quotation omitted).
Just so here. Shaw asks us 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. Appellant’s Brief at 17 (emphasis added). Thus, rather than
appealing his sentence, Shaw is making the “more elementary contention” that the challenged
condition is “not part of his sentence at all.” Singletary, 984 F.3d at 345.
The government asserts that Shaw’s argument is foreclosed by United States v. Ferguson,
669 F.3d 756 (6th Cir. 2012). We disagree. In Ferguson, the defendant challenged several
“special conditions of supervised release imposed by the district court.” Id. at 765. The
defendant argued that he “did not receive prior notice” of one of those conditions because “it was
not listed in the plea agreement as one of the conditions that the Government was to propose to
1See also, e.g., United Stated v. Thomas, 299 F.3d 150, 152 (2d Cir. 2002) (“It is the oral sentence which
constitutes the judgment of the court . . . and the written judgment is nothing more than mere evidence of the
sentence imposed orally in court by the judge.” (cleaned up)); United States v. Villano, 816 F.2d 1448, 1451 (10th
Cir. 1987) (en banc) (“[T]he purpose of the written order” is “to help clarify an ambiguous oral sentence by
providing evidence of what was said from the bench.”).

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No. 24-5461 United States v. Shaw Page 5
the court.” Id. at 765–66. We held that this lack of notice was “immaterial” because in pleading
guilty, the defendant had “acknowledged that . . . the sentencing recommendations in the plea
agreement would not be binding on the district court.” Id. at 766.
That holding has no relevance here. Ferguson did not argue that his oral sentence
conflicted with the written judgment, much less that such an argument falls outside the scope of
an appeal waiver. Indeed, it is unclear whether any such conflict even existed. The opinion
states that the defendant lacked notice of the condition because it was omitted from the plea
agreement; it says nothing about the condition being omitted from the oral sentence. Thus, the
Ferguson panel did not “consider and consciously decide” whether a sentencing appeal waiver
bars a defendant from arguing that the written judgment conflicts with the oral sentence. Wright
v. Spaulding, 939 F.3d 695, 704 (6th Cir. 2019). “There was no ‘application of the judicial
mind’ to that question, so there was no ‘decision’ about it.” Id. (quoting Carroll v. Carroll’s
Lessee, 57 U.S. 275, 287 (1853)).
Nor are we persuaded by United States v. Higgins, in which the Fifth Circuit held that a
sentencing appeal waiver bars the “contention that the written judgment conflicts with the oral
pronouncement.” 739 F.3d 733, 738 (5th Cir. 2014). The Fifth Circuit’s contrary view rests
entirely on the premise that the oral pronouncement and the written judgment “are both
considered the sentence.” Id. at 739 (emphasis added). Thus, “an appeal regarding a potential
conflict between the two sentences is an appeal of the sentence.” Id. But that reasoning
“conflicts with the general rule that only a district court’s oral pronouncement is the sentence,
and any conflicting written judgment is a ‘nullity.’” Harris, 51 F.4th at 720 (quoting United
States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir. 2015)). Indeed, we have long held that the
written judgment is not a sentence itself; rather, it “is merely evidence of the sentence.” Sasser,
352 F.3d at 797 (emphasis added). The Fifth Circuit’s opinion does not address this established
principle, so we decline to follow it.
Having decided that Shaw’s argument is outside the scope of his appeal waiver, we
address the merits.

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B. Conflict Between the Written Judgment and Oral Sentence
Because a criminal defendant is constitutionally entitled “to be present at his sentencing,”
the “oral sentence controls” when it conflicts with the written judgment. Hayden, 102 F.4th at
371. But where the oral sentence is ambiguous, the written judgment “can be used to resolve”
that ambiguity. United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011). Indeed, that is one of
the very purposes of the written judgment: “to help clarify an ambiguous oral sentence by
providing evidence of what was said from the bench.” United States v. Brown, 47 F. App’x 305,
315 (6th Cir. 2002) (quoting United States v. Villano, 816 F.2d 1448, 1451 (10th Cir. 1987) (en
banc)).
Shaw argues that contrary to the sentence announced at the sentencing hearing, which
effectively delegated the treatment decision to the probation office, the written judgment
mandates substance-abuse treatment on supervised release. However, as the parties
acknowledge, the Constitution imposes certain limits on a sentencing court’s authority to
delegate drug-treatment decisions to probation officers. Specifically, Article III vests courts with
the exclusive authority to “impose punishment upon people convicted of crimes.” United States
v. Logins, 503 F. App’x. 345, 349 (6th Cir. 2012) (citing Ex parte United States, 242 U.S. 27, 41
(1916)). And the “conditions of . . . supervised release” are part of the criminal punishment
constitutionally reserved to the judgment of the courts. United States v. Pruden, 398 F.3d 241,
250–51 (3rd Cir. 2005). Because probation officers are “non-judicial officers,” they cannot
constitutionally impose supervised-release conditions. Logins, 503 F. App’x. at 349.
Shaw argues that because the oral sentence unambiguously made substance-abuse
treatment subject to the probation department’s determination that such treatment is appropriate,
the written judgment must be vacated; and because the oral sentence involves an unconstitutional
delegation, the matter must be remanded for the district court to decide whether to impose
substance-abuse treatment as a mandatory condition of supervised release or remove any
reference to it.
Article III does not, however, “prohibit courts from using nonjudicial officers to support
judicial functions.” United States v. Allen, 312 F.3d 512, 515 (1st Cir. 2002) (quotation omitted).

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Indeed, “courts cannot be expected to map out every detail of a defendant’s supervised release,”
so “probation officers must be allowed some discretion in dealing with their charges.” Pruden,
398 F.3d at 250. To “reconcile[] these two imperatives,” id., this circuit and several others have
held that when a district court imposes a treatment program as a special condition of supervised
release, the court must “decide whether such treatment is required.” United States v. Carpenter,
702 F.3d 882, 885 (6th Cir. 2012) (quotation omitted).2 A probation officer may then decide the
“administrative details” of the court-ordered treatment. Logins, 503 F. App’x at 350–53. These
include “how often and how many drug tests will be performed,” id., “how long [the defendant]
must participate” in treatment, Allen, 312 F.3d at 515, and the “particular program” the defendant
must join, Pruden, 398 F. 3d. at 251 n.5.
Applying these principles, we have 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.” Carpenter, 702 F.3d at 885 (emphasis added). That sentencing language, we
reasoned, meets Article III’s requirements because it mandates the defendant to “participate in a
treatment program,” while allowing the probation officer to handle “the details of the treatment.”
Id. (quotation omitted). However, ordering treatment “if directed” by a probation officer is “an
impermissible delegation of judicial authority.” See, e.g., United States v. Peterson, 248 F.3d 79,
85 (2d Cir. 2001) (emphasis added).
Here, it is difficult to discern whether the district court at the sentencing hearing sought to
impose treatment “as directed” or “if directed” by probation. At first, the district court stated it
“will include the condition” during supervised release “as directed by” probation. R. 90, PID
380 (emphasis added). But in the very next sentence, the court said that probation “may decide
he doesn’t need it,” and it used the phrase “if directed by the Office of Probation.” Id. (emphasis
added). Then the district court wavered once more—it listed substance-abuse treatment along
with several other supervised release conditions and stated that “all” the conditions would be “as
directed.” Id. (emphasis added).
2See also e.g., United States v. Stephens, 424 F.3d 876, 882 (9th Cir. 2005); United States v. Kent, 209 F.3d
1073, 1078–79 (8th Cir. 2000) (both similar).

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Further complicating matters is the district court’s contrasting drug treatment during
incarceration, on one hand, and during supervised release, on the other. The district court stated
that it would “not . . . make a recommendation about substance abuse treatment” during
incarceration, but that it “will include the condition on three years of supervised release.” Id.
(emphasis added). So although the district court chose to “leave [Shaw’s participation in
carceral drug treatment] to the Bureau of Prisons,” id., it affirmatively imposed the condition on
supervised release, albeit with some discretion placed with the probation office.
Ultimately, given the district court’s lack of clarity at the sentencing hearing and
alternating use of the terms “as directed” and “if directed,” id., we cannot say that “the oral
sentence is clear.” Denny, 653 F.3d at 421. Thus, we may consider the written judgment to
“resolve an ambiguity.” Id. Here, the written judgment states that Shaw “shall participate in
substance abuse testing and treatment as directed by the probation officer.” R. 72, PID 152.
That language resolves the issue. This court has interpreted identical sentencing language to
“clearly specif[y]” that treatment is required, leaving only “the details of the treatment” to the
probation officer. Carpenter, 702 F.3d at 885–86; Logins, 503 F. App’x. at 349–53 (same).
Here, considering the oral pronouncement of the sentence as clarified by the written judgment,
we conclude that substance-abuse treatment is part of Shaw’s sentence, with the treatment
program, frequency, and duration of treatment to be decided by the probation office.
III. Conclusion
For the foregoing reasons, we AFFIRM.

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CONCURRENCE
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MURPHY, Circuit Judge, concurring in part and concurring in the judgment. Tracey
Shaw seeks to invalidate the requirement that he participate in substance-abuse treatment while
on supervised release. The district court’s written judgment explained that Shaw must
participate in this treatment “as directed by the probation officer.” Judgment, R.72, PageID 152.
At sentencing, however, the district court issued an ambiguous oral sentence that could be read
in two different ways. Under the first reading, the court’s oral sentence matched the written
judgment because it required Shaw to participate in treatment and left only the administrative
details to the probation office. Under the second reading, the court’s oral sentence conflicted
with the written judgment because it told the probation office to determine not just the details but
also whether Shaw must participate at all. On appeal, Shaw advocates for the second reading
and notes (correctly) that the oral sentence must trump the written one when the two conflict.
See United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011). But I agree with my colleagues
that our precedent allows us to use the written judgment to resolve this ambiguity in the
sentencing transcript. See id. And the judgment leaves no doubt that the court meant to require
substance-abuse treatment. So the first reading of the transcript is correct. I would reject Shaw’s
appeal on this ground alone.
My colleagues, though, go further by answering a preliminary question: Did the appeal
waiver in Shaw’s plea agreement bar him from raising his claim that the written judgment
conflicted with the sentencing transcript? I see no need to answer that question. To start,
nothing requires us to decide it. Appeal waivers do not restrict our jurisdiction to resolve the
merits of a defendant’s appeal. See United States v. Hack, 999 F.3d 980, 983–84 (6th Cir. 2021).
So if an appeal raises a thorny waiver question but an easy merits question, we may bypass the
waiver issue by affirming on the merits. See United States v. Hampton, 732 F.3d 687, 690 (6th
Cir. 2013).

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This well-trodden path makes good sense here. For one thing, other courts have
disagreed over whether similar appeal waivers barred similar challenges. Shaw’s plea agreement
waived his “right to appeal any sentence imposed by the Court” (with limited exceptions that do
not matter here). Plea Agreement, R.53, PageID 71 (emphasis added). Does his appellate claim
(that the written judgment conflicts with the oral sentence) challenge his “sentence” and so fall
within this waiver? The Fifth Circuit has held that a similar challenge fell within a similar
waiver, reasoning that the oral and written pronouncements both qualify as the sentence (even if
the oral one trumps the written one in the event of a conflict). See United States v. Higgins, 739
F.3d 733, 737–39 (5th Cir. 2014). Yet the Fourth and Seventh Circuits have since disagreed.
See United States v. Harris, 51 F.4th 705, 719–21 (7th Cir. 2022); United States v. Singletary,
984 F.3d 341, 345 (4th Cir. 2021). My colleagues agree with these latter two courts. But I
would not enter the circuit split on this issue in a case where the outcome of the appeal does not
even depend on it.
For another thing, Shaw challenges the written judgment in name only. See United States
v. Read, 118 F.4th 1317, 1321–23 (11th Cir. 2024). Yes, he claims that the “oral sentence
conflicts with the written sentence[.]” Denny, 653 F.3d at 421 (citation omitted). But he does
not just seek the modest relief that this challenge would normally trigger: a mere clerical fix of
the written judgment to match the oral sentence. See Read, 118 F.4th at 1322; see, e.g., United
States v. Dean, 657 F. App’x 503, 508 (6th Cir. 2016). To the contrary, he argues that his
interpretation of the oral sentence—that the district court gave the probation office discretion to
decide whether he should participate in substance-abuse treatment—would violate the law.
Indeed, the government agrees. See United States v. Carpenter, 702 F.3d 882, 885 (6th Cir.
2012). So Shaw also asks us to remand so that the district court may reconsider its oral sentence
(under his interpretation of it). In effect, then, he challenges the oral sentence too—not just the
written judgment. Cf. Read, 118 F.4th at 1322. This fact makes this case an even worse vehicle
to enter the circuit split.
All told, I would save the waiver issue for another day. Because my colleagues resolve
it, I concur in their rejection of Shaw’s claim on the merits and otherwise concur in the
judgment.

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