United States of America v. Tony Terrell Robinson

United States Court of Appeals
For the Eighth Circuit
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No. 23-1889
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Tony Terrell Robinson,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: November 17, 2023
Filed: January 25, 2024
[Unpublished]
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Before COLLOTON, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
This appeal concerns a sentence for a revocation of supervised release.
Because the district court’s oral pronouncement of sentence conflicts with the written
judgment, we vacate the judgment in part and remand for further action by the district
court.

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Tony Robinson was serving a term of supervised release after release from
prison on a fraud conviction. The district court found that Robinson violated several
conditions of release and imposed a new term of six months’ imprisonment, followed
by two years of supervised release.
Because Robinson’s criminal history includes a conviction for first-degree
criminal sexual conduct, the court also discussed imposing a special condition of
release relating to contact with minors. The court said that given Robinson’s criminal
history, her supervised release “typically” would include a condition that she must
“not associate with persons under the age of 18” unless she was “given permission”
by a “responsible adult” who was “aware of the background of Ms. Robinson.”
Robinson objected, and the court responded as follows:
What we’ll do is have the, I think have the updated psychosexual
evaluation. I won’t substitute my judgment. So in the event, we’ll take
a look at that, unless they put that condition in I won’t impose it. And
then if there is a condition and, Ms. Wolpert, if you or the government
want to have that reviewed, again even though it’s not the first case, not
unique to Ms. Robinson’s case, it gets a little bit more complicated when
the case gets—they terminate their case and move it over and then we
add conditions to our—but we will—and then because I was also going
to order an individualized sex offender treatment, subject to those who
have experience with transgendered individuals as approved by
probation, so we can do that. And so we’ll take a look at that and have
the right to review it if there’s not an agreement by everyone.
The court asked the parties whether the announced course of action would
“work” for them. Both defense counsel and the prosecutor replied in the affirmative.
The court’s written judgment, however, does not refer to the potential for further
“review” after a psychosexual evaluation. Instead, special condition (c) provides: “If
deemed appropriate by the sex offender treatment provider, the defendant shall not
associate with persons under the age of 18 except in the presence of a responsible
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adult who is aware of the nature of the defendant’s background and current offense
and who has been approved by the probation officer.”
Robinson argues that the written condition conflicts with the court’s oral
pronouncement. When an oral pronouncement of sentence conflicts with the written
judgment, the oral pronouncement controls. United States v. Harris, 794 F.3d 885,
889 (8th Cir. 2015). The government agrees that the written condition and the court’s
oral pronouncement conflict insofar as the written condition requires “the presence
of a responsible adult” when Robinson associates with minors. The government
requests that this court remand for the district court to address only this discrepancy.
Robinson maintains that the conflict is greater, because the court’s oral
pronouncement of sentence required only that she submit to an evaluation. On her
view, if the evaluator recommends a condition limiting her contact with minors, then
she retains the right to object to the suggested condition of release and to obtain
further review by the district court. Robinson argues that the written condition
eliminates her “right to review” that the court contemplated in its oral
pronouncement. The government responds that Robinson waived her ability to
challenge the special condition on contact with minors if the evaluator recommends
it.
As we read the record, Robinson agreed only to proceed with a psychosexual
evaluation, with a “right to review” by the court if the evaluator were to recommend
a condition to which Robinson objects. The court explained that if the evaluator
recommended limiting Robinson’s contact with minors, then the court and the parties
would “take a look at that and have the right to review it if there’s not an agreement
by everyone.” We thus agree with Robinson that special condition (c) conflicts with
the court’s oral pronouncement in that respect as well. The appropriate remedy is to
remand for the district court to reconcile the written judgment with the oral
pronouncement. See United States v. James, 792 F.3d 962, 973 (8th Cir. 2015). This
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conclusion comports with the government’s motion to remand, which suggests that
“the district court mentioned a possible condition governing contacts with children
and engaged in a dialogue with the defense and probation officer about the wording,
but never actually pronounced a condition.”
For these reasons, we vacate special condition (c) in the written judgment and
remand for further action by the district court. The government’s motion for remand,
if not withdrawn, is denied as moot.
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