     Case: 10-41336     Document: 00511713138         Page: 1     Date Filed: 01/04/2012




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

                                                                            FILED
                                                                          January 4, 2012
                                     No. 10-41336
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GUSTAVO ADOLFO CHINCHILLA-COMELLY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-882-1


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Gustavo Adolfo Chinchilla-Comelly pleaded guilty without the benefit of
a plea agreement to reentry of a deported alien following an aggravated felony
and was sentenced to 60 months in prison and three years of supervised release.
The district court’s written judgment required: “Within 72 hours of being placed
on supervised release or upon completion of the custody sentence, the defendant
shall surrender to a duly authorized immigration official.” Chinchilla-Comelly
maintains that because the court did not impose this condition orally at

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41336    Document: 00511713138       Page: 2   Date Filed: 01/04/2012

                                   No. 10-41336

sentencing, the written judgment should be amended to conform to the court’s
oral pronouncement.
      Because Chinchilla-Comelly had no opportunity at sentencing to challenge
the subsequent inclusion of the condition in the written judgment, we review the
court’s imposition of the condition for abuse of discretion. See, e.g., United States
v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). “[W]hen 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).
“[T]he judgment’s inclusion of conditions that are mandatory, standard, or
recommended by the Sentencing Guidelines does not create a conflict with the
oral pronouncement.” Id. at 938. On the other hand, “if the district court fails
to mention a special condition at sentencing, its subsequent inclusion in the
written judgment creates a conflict that requires amendment of the written
judgment to conform with the oral pronouncement.” Id. at 936 (citation and
internal quotation marks omitted).
      As Chinchilla-Comelly contends, the condition imposed by the district
court in the written judgment is not listed among the standard conditions of
supervised release found either in U.S.S.G. § 5D1.3(c) or the relevant portion of
the Southern District of Texas’s General Order No. H-1996-10. Furthermore,
the condition does not comport with the recommended special condition of
supervised release ordering deportation in § 5D1.3(d)(6). Thus, the imposition
of this special condition in the written judgment, but not orally pronounced at
sentencing, constituted an abuse of discretion.
      AFFIRMED in part; VACATED in part; and REMANDED for amendment
of the written judgment consistent with this opinion.




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