United States v. Fernando Vasquez-Parrales , 457 F. App'x 390 ( 2012 )

Case: 10-41222 Document: 00511715619 Page: 1 Date Filed: 01/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2012
No. 10-41222
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FERNANDO VASQUEZ-PARRALES,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:10-CR-919-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Fernando Vasquez-Parrales pleaded guilty to reentry of a deported alien
and was sentenced to 24 months’ imprisonment and one year of supervised
release. The written judgment required: “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.” Vasquez maintains:
because the court did not impose this condition orally at sentencing, the written
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41222 Document: 00511715619 Page: 2 Date Filed: 01/05/2012
No. 10-41222
judgment should be amended to conform to the court’s
oral pronouncement. We agree.
Because Vasquez had no opportunity at sentencing to challenge the
subsequent inclusion of the condition in the written judgment, review is for
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) (citation and quotation marks
omitted). “[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 quotation marks omitted).
As Vasquez contends, the condition imposed in the written judgment is not
listed among the standard conditions of supervised release found either in
Sentencing Guideline § 5D1.3(c) or the relevant portion of the Southern District
of Texas’ General Order No. H-1996-10. Furthermore, the condition does not
comport with the recommended special condition of supervised release ordering
deportation in Sentencing Guideline § 5D1.3(d)(6).
AFFIRMED in part; VACATED in part; and REMANDED for amendment
of the written judgment consistent with this opinion.
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