United States v. Hernandez-Guerrero ( 2023 )

Case: 22-20469 Document: 00516745475 Page: 1 Date Filed: 05/10/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-20469 May 10, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Carlos Etcheverry Hernandez-Guerrero,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-535-1
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Carlos Etcheverry Hernandez-Guerrero appeals the sentence
imposed following his guilty plea conviction for reentry of a removed alien.
He contends, and the Government agrees, that the written judgment must be
corrected because it contains a condition of supervised release that conflicts
with the district court’s oral pronouncement of his sentence.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20469 Document: 00516745475 Page: 2 Date Filed: 05/10/2023
No. 22-20469
We agree with the parties that the written condition requiring
Hernandez-Guerrero to submit to, and pay for, substance-abuse testing to
determine if he has used a prohibited substance and prohibiting him from
tampering with the testing methods is a discretionary condition under
18 U.S.C. § 3583(d) that the district court did not pronounce as required at
sentencing. See United States v. Diggles, 957 F.3d 551, 559-63 (5th Cir. 2020)
(en banc). That condition materially differs from the oral pronouncement
and must be excised from the written judgment. See United States v. Prado,
53 F.4th 316, 318-19 (5th Cir. 2022); United States v. Perez-Espinoza, 31 F.4th
988, 989 (5th Cir. 2022).
Accordingly, we VACATE in part and REMAND to the district
court to amend the written judgment to conform with the oral
pronouncement, consistent with this opinion. In all other respects, the
judgment is AFFIRMED.
2