     Case: 17-41109      Document: 00514939400         Page: 1    Date Filed: 05/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 17-41109
                                                                                FILED
                                                                             May 1, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

FRANCISCO A. GUERRERO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-628-1


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
      Francisco Guerrero appeals two special conditions of supervised release
in his written judgment, arguing they conflict with the sentence orally
pronounced by the district court. We remand to the district court for the limited
purpose of excising those two conditions from Guerrero’s sentence.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-41109
                                       I.
      Guerrero pleaded guilty to possessing methamphetamine with intent to
distribute, and to conspiracy to do the same, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A)(viii). Based on his presentence report
(“PSR”), he faced a guidelines range of 235–293 months in prison followed by
five years supervised release. At Guerrero’s sentencing hearing, the district
court discussed various special conditions, including educational (GED)
requirements, vocational training, substance abuse treatment, and mental
health treatment.
      With respect to those conditions, the court initially told Guerrero:
     I am going to order that you get your GED, because you’re going to
     have time to do that, and I am going to order substance abuse,
     treatment testing, abstinence while you’re in custody. I’m going to
     order the intensive drug treatment program. It’s a five-hundred
     hour program that I think you would greatly benefit from. But then
     when you get out, we’re going to continue with the treatment testing
     and abstinence condition. And so, it’s going to be a life-long battle
     for you.
(Emphases added). Despite the higher guidelines range, the court sentenced
Guerrero to the mandatory minimum of 120 months in prison followed by five
years supervised release. The court then returned to the special conditions:
      I’ve already talked about the special condition of the drug
      treatment testing and [abstinence] while you’re in custody and
      when you get out. I’m imposing a GED requirement and/or
      vocational training. You know, I’ll leave that up to you. I think you
      should probably do both. Use the time to get as many certificates as
      you can, so that when you get out you can do something different.
(Emphases added).
     While the court did not orally specify that the educational and vocational
training requirements would apply to supervised release, Guerrero’s PSR did
list those requirements (along with substance abuse and mental health
treatment) as “Conditions of Supervision.” The court’s subsequently-issued
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                                 No. 17-41109
written judgment listed all four as special conditions of supervision: (1)
substance abuse treatment; (2) mental health treatment; (3) educational
training; and (4) vocational training.
      Guerrero appealed, arguing that the third and fourth special conditions
(educational and vocational training) should apply only to confinement and not
to supervised release. Specifically, he argues that—with respect to those two
special conditions—the district court’s oral pronouncement conflicts with its
written judgment, and “when 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) (per curiam) (quoting
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)).
                                         II.
                                         A.
      Following our recent decision in United States v. Rivas-Estrada, 906 F.3d
346 (5th Cir. 2018), we review the challenged special conditions for abuse of
discretion. Rivas-Estrada teaches that, unless the district court “orally
enumerate[s] each special condition,” defendants lack a “meaningful
opportunity to object.” Id. at 349. In that event, we review unpreserved
challenges to those conditions for abuse of discretion, not plain error. Id. at
350. As explained below, here the district court mentioned the challenged
conditions but did not explain they would apply to supervised release. We thus
find that Guerrero lacked meaningful opportunity to challenge those
conditions and so review for abuse of discretion. See id. at 349 (the “point” of
the opportunity-to-object requirement “is to give [the defendant] fair notice”).
      Advocating plain error review, the government relies on United States v.
Rouland, 726 F.3d 728 (5th Cir. 2013). But in Rouland a memo introduced at
the sentencing hearing gave the defendant a “unique chance to object” to
special conditions. See Rivas-Estrada, 906 F.3d at 350 (distinguishing Rouland
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                                   No. 17-41109
on this basis). Rouland is inapplicable here. All we have is the district court’s
non-specific references to the PSR containing the special conditions, but Rivas-
Estrada tells us that “[m]erely referencing a PSR that lists special conditions
. . . isn’t enough.” Id. at 349.

                                        B.
      Applying that standard, we find the district court abused its discretion
by imposing the two challenged special conditions. “We have repeatedly held
that if a written judgment clashes with the oral pronouncement, the oral
pronouncement controls.” Id. at 350 (citing United States v. Mudd, 685 F.3d
473, 480 (5th Cir. 2012); United States v. Mireles, 471 F.3d 551, 557–58 (5th
Cir. 2006); Torres-Aguilar, 352 F.3d at 935). That is what we have here: The
court’s oral pronouncement indicated the educational and vocational
requirements would apply only during Guerrero’s confinement, but the written
judgment extended them to supervised release. This was in sharp contrast to
substance abuse treatment, which the court specified would apply “while
you’re in custody and when you get out” (emphasis added). The discrepancy
created a “conflict” because “the written judgment broaden[ed] the pronounced
requirements of supervised release” with respect to the educational and
vocational training requirements. Rivas-Estrada, 906 F.3d at 350 (citing
Mireles, 471 F.3d at 558). The remedy is to excise those conditions from the
written judgment. See, e.g., United States v. Bigelow, 462 F.3d 378, 383 (5th
Cir. 2006) (explaining “the [written] judgment must be conformed to [the oral]
pronouncement by deleting the . . . [challenged] special conditions”).
      We therefore VACATE IN PART Guerrero’s sentence and REMAND to
the district court for the limited purpose of excising from the written judgment




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                                    No. 17-41109
the two challenged conditions that Guerrero participate in educational and
vocational training during supervised release. 1
      VACATED IN PART and REMANDED




      1  The special conditions relating to substance abuse treatment and mental health
treatment are not challenged and remain undisturbed. Nor does our opinion disturb any
requirement that Guerrero participate in educational and vocational programs during his
term of incarceration.
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