     Case: 17-40594      Document: 00514388584         Page: 1    Date Filed: 03/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 17-40594
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 15, 2018
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
               Plaintiff - Appellee

v.

TOMAS MARTINEZ-MENDOZA,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-100-1


Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
           Tomas Martinez-Mendoza pled guilty to illegal reentry into the United
States. The district court sentenced him to 36 months’ imprisonment and
three years’ supervised release. Martinez-Mendoza challenges the special
condition of his supervised release that requires him to register as a sex
offender in any state in which he resides. We AFFIRM as MODIFIED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40594
              FACTUAL AND PROCEDURAL BACKGROUND
      Martinez-Mendoza pled guilty to violating 8 U.S.C. § 1326, the offense of
illegal reentry into the United States. Martinez-Mendoza had previously been
convicted in the state of Utah for a sex offense. As a result of that conviction,
the appendix to the presentence report (“PSR”) contained the following
language under the heading, “Mandatory Conditions”:
      You must comply with the requirements of the Sex Offender
      Registration and Notification Act (42 U.S.C. § 16901, et seq.) as
      directed by the probation officer, the Bureau of Prisons, or any
      state sex offender registration agency in which you reside, work,
      are a student, or were convicted of a qualifying offense. (Not
      applicable).
      At sentencing, the district court expressed uncertainty about the
language of the PSR’s registration requirement recommendation. The district
court stated, “I think it is a requirement because of the conviction,” which the
probation officer affirmed.    The probation officer clarified that “with the
convictions that the defendant has, he is required to register.” One count
carried with it a requirement to register annually for ten years after
termination of sentence and the other carried a lifetime registration
requirement. Agreeing with the probation officer, the district court found that
the conviction required registration. As a result, the district court said it would
“impose that condition, which is the registration requirement, [which was]
highlighted there in the [PSR’s] appendix that was given to you and your
lawyer to review.”
      The form used by the district court for its written judgment contained a
box to check for a mandatory condition that would require Martinez-Mendoza
to “comply with the requirements of the Sex Offender Registration and
Notification Act . . . as directed by the probation officer, the Bureau of Prisons,
or any state sex offender registry in which you reside, work, are a student, or


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                                 No. 17-40594
were convicted or a qualifying offense.” The district court did not check that
box. Instead, the district court included the following special condition:
      The defendant shall report the address where the defendant will
      reside and any subsequent change of residence to the probation
      officer responsible for supervision and the defendant shall register
      with the sex offender registration agency in any state where the
      defendant resides, is employed, carries on a vocation, or is a
      student, as directed by the probation officer. The probation officer
      will provide the state officials with any and all information
      required by the state sex offender registration agency and may
      direct the defendant to report to that agency personally for
      additional processing, such as photographing and fingerprinting.
      Martinez timely appealed, arguing the written judgment conflicted with
the oral pronouncement of the judgment at sentencing.


                                DISCUSSION
      Because Martinez-Mendoza is appealing the alleged conflict between the
oral pronouncement of his sentence and the written judgment, he had no
opportunity at sentencing to object to the condition that was contained in the
written judgment. As a result, we view for an abuse of discretion rather than
plain error. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
      Because “[d]efendants have a constitutional right to be present at their
sentencing,” when there is a true conflict between the sentence contained in
the written judgment and the sentence that was orally pronounced at
sentencing, the oral pronouncement governs. United States v. Huor, 852 F.3d
392, 404 (5th Cir. 2017). Where the only difference is ambiguity, this court
looks to the district court’s intent in order to determine the specific
sentence. Id.   In order to determine if there is a true conflict, the court
compares the two, and “[i]f the written judgment broadens the restrictions or
requirements of supervised release from an oral pronouncement, a conflict
exists.” United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006). There is

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                                No. 17-40594
no conflict if the only difference between the oral pronouncement and written
judgment is that the written judgment includes conditions that are mandatory,
standard, or recommended under the Sentencing Guidelines. United States v.
Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003). On the other hand, if the
written judgment imposes a special condition of supervised release that was
not in the oral pronouncement, the written judgment should be reformed to
conform to the oral pronouncement. See United States v. Mudd, 685 F.3d 473,
480 (5th Cir. 2012).
      Martinez-Mendoza does not challenge the registration requirement
contained in the PSR, which required compliance with the Sex Offender
Registration and Notification Act (“SORNA”). Compliance with SORNA is a
mandatory condition of supervised release in a new sentence if the defendant
has already been required under a prior conviction to register under SORNA.
U.S.S.G. § 5D1.3(a)(7).   Instead, Martinez-Mendoza challenges the special
condition contained in the written judgment, arguing that the special condition
(which contains no reference to SORNA) creates an independent registration
requirement in addition to the statutory requirement.
      The district court asked at sentencing whether Martinez-Mendoza’s
Utah convictions resulted in a registration requirement. After the probation
officer confirmed that they did, the district court imposed the registration
requirement, which the court said was “highlighted there in the appendix”
under the section “Mandatory Conditions.” Consequently, compliance with
SORNA was a mandatory condition for his illegal reentry sentence under
Section 5D1.3(a)(7). The written judgment, however, contains a registration
requirement as a special condition. Thus, we MODIFY the judgment to impose
the mandatory condition requiring compliance with SORNA and to delete the




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                               No. 17-40594
registration requirement contained in the special conditions. See 28 U.S.C. §
2106.
        AFFIRMED AS MODIFIED.




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