     Case: 09-40690     Document: 00511034852          Page: 1    Date Filed: 02/24/2010




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

                                                  FILED
                                                                          February 24, 2010
                                     No. 09-40690
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDITH LUNA-MUNIZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-147-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Edith Luna-Muniz appeals from her conviction of transporting an
undocumented alien. She challenges the condition of her supervised release
requiring her to participate in a mental health program.
        At Luna-Muniz’s sentencing hearing, the district court stated that she
would be subject to the “[s]tandard terms and conditions of supervision, along
with drug treatment, mental health counseling, parenting program, nighttime
restriction of 10:00 p.m. to 6:00 a.m.” The written judgment, however, orders her

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40690    Document: 00511034852 Page: 2       Date Filed: 02/24/2010
                                 No. 09-40690

to “participate in a mental health program as deemed necessary and approved
by the probation officer.”
      In United States v. Lopez-Muxtay, No. 08-41179, 2009 WL 3016263, *1 (5th
Cir. Sept. 22, 2009) (unpublished), we vacated and remanded a sentence in
which the written judgment contained language identical to the language used
in Luna-Muniz’s case and in which the district court’s oral judgment was similar
to Luna-Muniz’s. Id. We remanded that case for clarification because “[t]he
district court’s written judgment is unclear regarding whether the district court
intended to grant Lopez’s probation officer the authority not only to implement
the condition but to determine whether Lopez should or should not undergo
mental health treatment on supervised release.” Id; see also United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006) (holding that when the sentence
imposed orally by the district court conflicts with the written judgment, the oral
pronouncement controls). We now vacate the judgment in Luna-Muniz’s case
and remand the case for resentencing so that the district court may clarify the
condition of supervised release at issue. We express no opinion on the proper
resolution of the issue.
      VACATED AND REMANDED.




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