United States v. Francisco Zepeda-Zalaberry , 458 F. App'x 342 ( 2012 )

Case: 10-41308 Document: 00511719973 Page: 1 Date Filed: 01/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 10, 2012
No. 10-41308
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FRANCISCO ZEPEDA-ZALABERRY,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:10-CR-491-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Zepeda-Zalaberry pleaded guilty to being found unlawfully in
the United States following deportation. He was sentenced to 69-months’
imprisonment and three years of supervised release.
The written judgment also imposed the following special condition of
supervised release: “Within 72 hours of being placed on supervised release or
upon completion of the custody sentence, the defendant shall surrender to a duly
authorized immigration official.”
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-41308 Document: 00511719973 Page: 2 Date Filed: 01/10/2012
No. 10-41308
Because that condition was not imposed orally at sentencing, Zepeda
contends the written judgment should be amended to conform to the court’s oral
pronouncement. Because Zepeda had no opportunity at sentencing to challenge
the subsequent inclusion of the condition in the written judgment, our review is
for an abuse of discretion. E.g., United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006).
“[W]hen there is a conflict between a written sentence and an oral
pronouncement, the oral pronouncement controls”. United States v. Torres-
Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). “[T]he judgment’s inclusion of
conditions that are mandatory, standard, or recommended by the Sentencing
Guidelines does not create a conflict with the oral pronouncement”. Id. at 938.
On the other hand, “if the district court fails to mention a special condition at
sentencing, its subsequent inclusion in the written judgment creates a conflict
that requires amendment of the written judgment to conform with the oral
pronouncement”. Id. at 936 (emphasis in original) (citation and internal
quotation marks omitted).
The condition imposed in the written judgment is not listed among the
standard conditions of supervised release found either in Guideline § 5D1.3(c)
or the relevant portion of the district court’s General Order No. H-1996-10.
Furthermore, the condition does not comport with the recommended special
condition of supervised release ordering deportation in Guideline § 5D1.3(d)(6).
Because the condition was not orally pronounced at sentencing, the district court
abused its discretion in imposing the special condition in the written judgment.
AFFIRMED in part; VACATED in part; and REMANDED for amendment
of the written judgment consistent with this opinion.
2