     Case: 19-40496      Document: 00515388937         Page: 1    Date Filed: 04/20/2020




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

                                                                               FILED
                                    No. 19-40496
                                                                           April 20, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

LUIS MANUEL MAGALLON-CONTRERAS,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:18-CR-735-1


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Luis Manuel Magallon-Contreras (“Magallon-Contreras”) pled guilty to
two counts of transporting an undocumented alien, was sentenced to 12
months and one day, and is set to be released from prison on April 26, 2020. In
this expedited appeal he challenges two of the three special conditions that
were included in his presentencing report (“PSR”) but, not orally pronounced
at sentencing. For the foregoing reasons, we VACATE the conditions at issue


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40496
and REMAND the written judgment for conformity with the oral
pronouncement.
            I.   FACTUAL AND PROCEDURAL BACKGROUND
      Magallon-Contreras is Mexican by birth, has been living in the United
States since 1976, and became a lawful, permanent resident in 1986. He has
been married to his wife, Hermila, for the past 37 years with whom he shares
three adult children. Prior to this incident, Magallon-Contreras worked as a
dairy farmer in Escalon, California and led a crime-free life.
      Magallon-Contreras was arrested on June 28, 2018. On February 21,
2019, he pled guilty before a magistrate judge, without a plea agreement, to
two counts of transporting an undocumented alien in violation of 8 U.S.C. §§
1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(ii). He signed a
stipulation of facts wherein he admitted to transporting an undocumented
alien into the United States. On March 8, 2019, the district court adopted the
magistrate judge’s recommendation that Magallon-Contreras be found guilty
on those charges.
      Magallon-Contreras’s PSR calculated his total offense level at a 13 and
included various mandatory, standard, and special conditions of supervised
release in its appendix. They are as follows:
      You must immediately report to U.S. Immigration and Customs
      Enforcement [ICE] and follow all their instructions and reporting
      requirements until any deportation proceedings are completed. If
      you are ordered deported from the United States, you must remain
      outside the United States unless legally authorized to reenter. If
      you reenter the United States, you must report to the nearest
      probation office within 72 hours after you return.

At sentencing, the district court asked Magallon-Contreras’s counsel whether
he reviewed the PSR with the appellant and if there were any objections to the
PSR. Counsel indicated that neither he nor Magallon-Contreras had any
objections to the PSR. After further discussion, the district court ultimately
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                                   No. 19-40496
sentenced Magallon-Contreras to 12 months and one day in prison. The district
court went on to say:
      I order thereafter a term of supervised release of three years,
      during which you’re required, if you are in the United States to be
      supervised, you would be required to comply with certain
      standard, mandatory, and special conditions that include that
      you’re not to violate the law, state, federal, or local. And if
      deported, that you are not to illegally re-enter the United States.
      Should you do either one of those two things, that is commit a
      crime during this three-year period, or if deported, you are found
      here in the United States illegally, you could be brought back here
      in connection with this case and sentenced by being sent to prison.

      The written judgment included the three special conditions of supervised
release, as they were presented in the appendix to the PSR. Magallon-
Contreras timely appealed his sentence to this court challenging the condition
requiring him to self-report to ICE (“the surrender condition”) and the
condition requiring him to self-report to the nearest probation office within 72
hours of his return to the United States if he is ultimately deported (“the
reporting condition”) because they were not orally pronounced at sentencing.
                                 II.    DISCUSSION
      We first turn to our controlling precedent in United States v. Rivas-
Estrada: “When a defendant had no opportunity to object to special conditions
(because they were unmentioned at sentencing), we review for abuse of
discretion, and any ‘unpronounced’ special conditions must, upon remand, be
stricken from the written judgment.” 906 F.3d 346, 348 (5th Cir. 2018). There
is no question that the special conditions at issue here were not orally
pronounced    at   sentencing.    So,   we   review   the   district   court’s   oral
pronouncement and written judgment for an abuse of discretion.
      We have long held that the oral pronouncement requirement stems from
a defendant’s constitutional right to be present at sentencing. See Rivas-
Estrada, 906 F.3d at 349–50. Where there is a conflict between the oral
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                                  No. 19-40496
pronouncement and the written judgment, the oral pronouncement controls.
Id. at 350. In determining whether there is a conflict, this court considers
whether the written sentence is more burdensome than the orally pronounced
sentence. United States v. Bigelow, 462 F.3d 378, 383–84 (5th Cir. 2006). We
look to the intent of the sentencing court, as evidenced in the record, to resolve
an ambiguity between the oral pronouncement and the written judgment.
United States v. Vasquez-Puente, 922 F.3d 700, 703–05 (5th Cir. 2019). But we
must first determine whether the conditions at issue are true special conditions
that require oral pronouncement.
      Sometimes a condition labeled “special” is actually a standard condition.
See United States v. Rouland, 726 F.3d 728, 735 (5th Cir. 2013) (“[S]pecial
conditions may be tantamount to standard conditions under the appropriate
circumstances, thereby precluding the need for an oral pronouncement.”).
Aside from being potentially “appropriate” in any case, the special conditions
in U.S.S.G. § 5D1.3(d) are “recommended” in certain circumstances. A
recommended condition is essentially a standard condition and thus need not
be orally pronounced. See United States Torres-Aguilar, 352 F.3d 934, 937–38
(5th Cir. 2003). That the Guidelines would still call that condition special is
“irrelevant.” Id. at 937 (quoting United States v. Asuncion-Pimental, 290 F.3d
91, 94 (2d Cir. 2002)). Simply stated, “[i]f the district court orally imposes a
sentence of supervised release without stating the conditions applicable to this
period of supervision, the [written] judgment’s inclusion of conditions that are
mandatory, standard, or recommended by the Sentencing Guidelines does not
create a conflict with the oral pronouncement.”
      In prior decisions we have handled the surrender condition in varying
ways. For example, in Vasquez-Puente we held that there was ambiguity rather
than a conflict between the oral pronouncement and the written judgment
when the surrender condition appeared in the written judgment but was not
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                                 No. 19-40496
orally pronounced at sentencing. See Vasquez-Puente, 922 F.3d at 704–05. This
required us to look at the district court’s intent—there, we held that there was
no conflict between the oral pronouncement and the written judgment because
the district court’s imposition of the surrender condition was “consistent with
[its] intent that Vasquez-Puente be deported after serving his prison term.” Id.
at 705. There, unlike here, it was clear that Vasquez-Puente had been deported
before and thus could not be legally present in the United States. Id.
      Additionally, we have also held in a prior, unpublished decision, that the
surrender condition is a special condition that requires oral pronouncement.
See United States v. Alvarez, 761 F. App’x 363, 365–65 (5th Cir. 2019). Unlike
in Vasquez-Puente, we cannot discern the district court’s intent with respect to
the future of Magallon-Contreras’s residency status in the United States (i.e.,
whether he will be deported). The district court stated at sentencing that
“there’s so much uncertainty about what [Magallon-Contreras’s] situation is.”
It also repeatedly acknowledged that the issue of deportation would not be
handled until after Magallon-Contreras completed his current prison term. For
these reasons, we conclude that the surrender condition here is a special
condition that should have been orally pronounced at sentencing. See Alvarez,
761 F. App’x at 365–65.
      The federal sentencing guidelines provide as a standard condition the
requirement that a defendant report to his probation officer within 72 hours of
being released from prison. See U.S.S.G. § 5D1.3(c)(1). Here, the condition
requiring Magallon-Contreras to report to the nearest probation office within
72 hours of returning to the United States (if he is deported) closely mirrors
that standard condition. We have acknowledged this type of reporting
condition is a special condition that requires oral pronouncement. See Alvarez,




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                                        No. 19-40496
761 F. App’x at 365–65. 1 Moreover, we do not view the reporting condition here
as akin to the Guidelines’ post-release reporting condition. First, the reporting
condition does not distinguish between lawful and unlawful re-entry. Secondly,
reporting to the nearest probation office within 72 hours of lawful re-entry into
the United States is more burdensome than necessary—especially if Magallon-
Contreras is legally permitted into the United States after being deported.
Accordingly, the reporting condition here is a true special condition that
requires oral pronouncement. 2
                                 III.     CONCLUSION
       For the aforementioned reasons, we VACATE the surrender and
reporting conditions imposed by the district court because they were not orally
pronounced at sentencing. We REMAND with instructions that the written
judgment be reformed in conformity with the oral pronouncement.




      1 Though Alvarez is unpublished, we consider it persuasive authority here.
      2 Although the government asks that we hold this case pending the issuance of our en
banc opinion in No. 18-40521, United States v. Diggles, we decline to do so because in this
case the district court did not orally adopt the PSR’s recommended conditions as the
sentencing court did in Diggles.
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