United States v. Ronny Rhodes ( 2019 )

Case: 18-20562 Document: 00514931865 Page: 1 Date Filed: 04/26/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20562 April 26, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RONNY EARL RHODES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-31-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Ronny Earl Rhodes appeals one aspect of the sentences imposed on the
revocation of concurrent terms of supervised release of five years (Count One)
and three years (Count Two). The revoking court sentenced him to concurrent
prison terms of 36 months for each count. The written judgment, but not the
oral pronouncement of the sentence, reflects that he was also sentenced to
concurrent two-year terms of supervised release on each count. Rhodes
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20562 Document: 00514931865 Page: 2 Date Filed: 04/26/2019
No. 18-20562
contends that the two-year term of supervised release on the Count Two
revocation exceeds the maximum sentence available, and is thus illegal,
because the prison sentence on the Count Two revocation was three years,
leaving no time remaining for supervised release on that count. See Johnson
v. United States, 529 U.S. 694, 705-07 (2000).
The Government concedes that this is a clear and obvious error, but it
argues, without merit, for letting the error stand. The record refutes the
Government’s suggestion that the error was “invited” or provoked by the
defense. See United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014).
Likewise, the argument for plain-error review fails. Because the error
appeared only in the written judgment, Rhodes had no opportunity to object to
this aspect of the sentence at the revocation hearing. See United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). More significantly, we review de
novo a claim that a sentence is illegal because it exceeds the statutory
maximum. See United States v. Hampton, 633 F.3d 334, 336 (5th Cir. 2011);
United States v. Vera, 542 F.3d 457, 459-61 (5th Cir. 2008).
Accordingly, the conviction is AFFIRMED, but the sentence is
VACATED IN PART, and the case is REMANDED for the district court to
correct the written judgment to remove the two-year term of supervised release
imposed on Count Two. See Vera, 542 F.3d at 462.
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