United States v. Jose Perez ( 2018 )

Case: 18-20393 Document: 00514727673 Page: 1 Date Filed: 11/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20393 November 16, 2018
Conference Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ALEX BUITRAGO PEREZ, also known as Luis Crisanto Perez-Trejo,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-219-1
Before HIGGINSON, COSTA, and HO, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Jose Alex Buitrago
Perez has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). Buitrago Perez has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20393 Document: 00514727673 Page: 2 Date Filed: 11/16/2018
No. 18-20393
issue for appellate review, with one exception. A review of counsel’s brief and
the record reveals the following nonfrivolous appellate issue: whether there is
a conflict with respect to a special condition of supervised release requiring
Buitrago Perez to seek documentation authorizing him to work in the United
States that is included in the written judgment but was not orally pronounced
by the district court at sentencing.
A defendant has a constitutional right to be present at sentencing.
United States v. Bigelow, 462 F.3d 378, 380-81 (5th Cir. 2006). Thus, if there
is a conflict between the sentence imposed in court and the written judgment,
the oral pronouncement controls. United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001). If there is an ambiguity between the sentences, however, the
record must be reviewed to discern the district court’s intent. Id. When a
defendant has no opportunity to object to special conditions because the district
court did not mention them at sentencing, this court reviews for abuse of
discretion. United States v. Rivas-Estrada, ___ F.3d ___, 2018 WL 4956708, 1,
3 (Oct. 12, 2018).
Counsel acknowledges the discrepancy between the oral pronouncement
of sentence and the written judgment in this case, but we are not persuaded
that the issue is frivolous. Buitrago Perez was sentenced to eight months of
imprisonment, and his release date is December 24, 2018. Considering the
practicalities of Buitrago Perez’s imminent release, requiring the Federal
Public Defender to brief the issue and the Government to respond would not
be a prudent use of judicial resources. Therefore, in the interests of judicial
economy, we hereby GRANT counsel’s motion to withdraw, counsel is excused
from further responsibilities herein, we exercise our discretion to MODIFY the
judgment to strike the work authorization special condition, and we AFFIRM
the district court’s judgment as modified. See 28 U.S.C. § 2106.
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