United States v. Moore , 224 F. App'x 383 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-20231
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VANQUETTA DENISE MOORE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-153-1
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Vanquetta Denise Moore appeals her sentence. Moore entered
guilty pleas to charges of conspiracy to commit mail fraud and
social security fraud (Count One) and mail fraud and aiding and
abetting (Count Four). The district court sentenced Moore to
concurrent terms of 12 months of imprisonment and one day and
concurrent terms of three years and five years of supervised
release.
For the first time on appeal, Moore contends that the
imposition of a five-year term of supervised release for her mail
*
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this opinion should not be published and is not precedent except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.
No. 06-20231
-2-
fraud conviction exceeds the statutory maximum sentence. Moore
asserts that this error is plain and affects her substantial
rights.
We “review de novo a sentence that allegedly exceeds the
statutory maximum term.” United States v. Ferguson, 369 F.3d
847, 849 (5th Cir. 2004). Moore pleaded guilty to conduct that
occurred from January 2000 to July 2000 when the offense of mail
fraud carried a maximum statutory penalty of five years of
imprisonment. See 18 U.S.C. § 1341 (2000); United States v.
Smith, 869 F.2d 835, 836-37 (5th Cir. 1989) (holding that proper
penalty statute is statute in effect at time offense is
committed). Thus, Moore was subject to a statutory maximum term
of supervised release of three years on the mail fraud
conviction. See 18 U.S.C. §§ 3559(a)(4), 3583(b)(2).
The district court’s oral pronouncement of a supervised
release term of three years as to Moore’s conspiracy conviction
conflicts with the written judgment which provides that the
supervised release term is five years. The oral pronouncement
controls. See United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2005).
Accordingly, we affirm Moore’s conviction and affirm her
sentence in part. We vacate and remand for resentencing the
sentence of five years of supervised release as to Moore’s
conviction for mail fraud and order the correction of the
clerical error in the written judgment to conform to the district
No. 06-20231
-3-
court’s oral pronouncement of a three-year term supervised
release as to Moore’s conspiracy conviction.
CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART; VACATED AND
REMANDED.