Page:United States v. Tanner (19-30833) (2021) Opinion.pdf/2

 court orally pronounced restitution of $63,221. In contrast, the written judgment mandates $106,744.

Tanner contends that the sentence as orally pronounced conflicts with the written judgment and, therefore, the oral pronouncement controls. We conclude that, although the oral pronouncement was ambiguous, it does not conflict with the written judgment. After reviewing the record to determine the intent, we affirm the written judgment.

Ordinarily, if a defendant raises a sentencing error for the first time on appeal, we review only for plain error. United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc), ''cert. denied'', 2020 WL 6551832 (U.S. Nov. 9, 2020). But that does not apply where, as here, the alleged error appears for the first time in the written judgment. Id. Instead, because the defendant did not have the opportunity to object in the district court, we review for abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).

A defendant has a Fifth Amendment due process right to be present at sentencing. Diggles, 957 F.3d at 557. “Including a sentence in the written judgment that the judge never mentioned when the defendant was in the courtroom is tantamount to sentencing the defendant in absentia.” Id. (quotation omitted). Thus, due process dictates that a district court “must orally pronounce a sentence.” Id. at 556.

Accordingly, where the oral pronouncement and written judgment conflict, the oral pronouncement controls. Id. at 557. But that is so only if the two actually conflict. If, instead, “the written judgment simply clarifies an ambiguity in the oral pronouncement, we look to the sentencing court’s intent to determine the sentence.” United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013) (per curiam). We determine that intent by examining “the entire record.” United States v. English, 400 F.3d 273, 276 (5th Cir. 2005)