United States v. Miguel Perez-Hernandez , 369 F. App'x 606 ( 2010 )

Case: 09-40391 Document: 00511052593 Page: 1 Date Filed: 03/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2010
No. 09-40391
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MIGUEL PEREZ-HERNANDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-676-1
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Miguel Perez-Hernandez appeals the sentence imposed following the
revocation of his supervised release. Specifically, he appeals the district court’s
reimposition of a $100 special assessment. Perez-Hernandez argues that the
assessment should be stricken from the written judgment because it is contrary
to the oral pronouncement and evidence presented at the revocation hearing. He
further contends that he is no longer obligated under 18 U.S.C. § 3013(b) to pay
the assessment. The Government concedes that the district court lacked
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40391 Document: 00511052593 Page: 2 Date Filed: 03/16/2010
No. 09-40391
authority to reimpose the special assessment and that it should be stricken from
the written judgment.
A review of the transcript from the revocation hearing reflects that the
district court’s imposition of the special assessment is contrary to the oral
pronouncement and evidence presented at the hearing. Moreover, as the
Government also concedes, the district court lacked authority under 18 U.S.C.
§ 3583 to reimpose a special assessment. See United States v. Pineda, __F.3d__,
No. 08-41301, 2010 WL 199878, at *1 (5th Cir. Jan. 22, 2010). Accordingly, the
district court’s judgment is REFORMED to omit the $100 special assessment.
JUDGMENT AFFIRMED AS REFORMED.
2