     Case: 17-41099   Document: 00514938636        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. 17-41099                           FILED
                                                                        May 1, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

             Plaintiff - Appellee

v.

CARLOS VASQUEZ-PUENTE,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      Carlos Vasquez-Puente appeals two special conditions of supervised
release in his written judgment, arguing they conflict with the sentence orally
pronounced by the district court. Finding no abuse of discretion, we affirm.
                                         I.
      Vasquez-Puente pleaded guilty to being unlawfully found in the United
States after a previous deportation in violation of 8 U.S.C. § 1326(a) and (b).
Based on his presentence report (“PSR”), he faced a guidelines range of 51–63
months. In objections to the PSR, he admitted he “obviously knew that it was
illegal to return [to the United States], because he has been prosecuted for this
same offense twice before.” At sentencing, Vasquez-Puente’s attorney stated
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                                  No. 17-41099

he had warned his client “more than once . . . that he should not be coming
back here because these sentences are just going to get higher and higher[,]”
adding that Vasquez-Puente “has indicated that he has no plans to return here,
[and] that he’s going to stay in Mexico.” For his part, Vasquez-Puente stated,
“I want to apologize for having entered the country illegally.” He explained he
had come to the United States “to give a better life for my children but [now] I
see I cannot be here,” and so he promised, “I’m not coming back.”
      The district court gave Vazquez-Puente a low-end prison sentence of 51
months. The court also imposed “a 3-year term of supervised release,”
explaining this was needed “because . . . in the PSR it indicates how that after
that last removal, you remained in Mexico for only about one month.” The court
explicitly warned Vasquez-Puente that he had been previously deported and
that therefore he “should understand certainly just from that that you can’t be
[in the United States].” The court also admonished him that, “[i]f you are
deported, it will be without active supervision[,] but if you are in the country,
you’re to comply with all the standard conditions adopted by the Court.”
      The court’s subsequent written judgment imposed on Vasquez-Puente
the following “special conditions” of supervision (formatted for ease of reading):
      [1] You must surrender to U.S. Immigration and Customs
          Enforcement and follow all [its] instructions and reporting
          requirements until any deportation proceedings are completed.
      [2] If you are ordered deported from the United States, you must
          remain outside the United States unless legally authorized to
          reenter.
      [3] If you reenter the United States, you must report to the nearest
          probation office within 72 hours after you return.
These specific conditions, however, did not appear in Vasquez-Puente’s PSR.
Nor did the district court expressly enumerate them when orally pronouncing
sentence.


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      Vasquez-Puente appealed, arguing that the first and second special
conditions in the written judgment conflict with the oral sentence and
therefore must be excised. 1
                                             II.
      We review imposition of special conditions for abuse of discretion when
the district court does not “orally enumerate each special condition” and the
defendant therefore “has no meaningful opportunity to object.” United States
v. Rivas-Estrada, 906 F.3d 346, 349 (5th Cir. 2018); see also, e.g., United States
v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
                                             III.
      Given a defendant’s constitutional right to be present at sentencing,
“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) (per curiam)). If, however, there
is “merely an ambiguity” between oral and written sentences, “then ‘we must
look to the intent of the sentencing court, as evidenced in the record’ to
determine the defendant’s sentence.” Id. (quoting United States v. Warden, 291
F.3d 363, 365 (5th Cir. 2002)); see also Bigelow, 462 F.3d at 381 (distinguishing
“ambiguity” in sentences from “conflicting” oral and written sentences).
      In general, a conflict exists “[i]f the written judgment broadens the
restrictions    or   requirements       of    supervised    release     from    an    oral
pronouncement.” United States v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012)
(quoting United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006)). A conflict



      1 Vasquez-Puente does not challenge the third special condition that, upon reentering
the United States, he must report to the nearest probation office within 72 hours.



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may arise because a sentencing court omits certain conditions from its oral
pronouncement but includes them in its written judgment. Torres-Aguilar, 352
F.3d at 935–36. Omitted conditions that are “mandatory, standard, or
recommended by the Sentencing Guidelines” do 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 (quoting United
States v. Vega, 332 F.3d 849, 852–53 (5th Cir. 2003)).
      Vasquez-Puente contends there is a conflict between the district court’s
oral pronouncement and its written judgment. Specifically, he points to the
first two special conditions in the written judgment: (1) that he surrender to
immigration authorities until deported (the “surrender condition”), and (2)
that he remain outside the United States until authorized to reenter (the “no-
reentry condition”). Vasquez-Puente argues these conditions were not
pronounced orally at sentencing and therefore must be excised from the
written judgment.
                                      A.
      We first address the surrender condition—namely, that Vasquez-Puente
“surrender to U.S. Immigration and Customs Enforcement and follow all [its]
instructions and reporting requirements until any deportation proceedings are
completed.” Vasquez-Puente contends, and the government concedes, that this
is not a standard or mandatory condition, but rather a special condition
included in the Southern District of Texas’ standing General Order 2017-01.
See In re Conditions of Prob. and Supervised Release, Gen. Order No. 2017-01
(S.D. Tex. Jan. 6, 2017); see also United States v. Vasquez-Ruiz, 702 F. App’x
241, 242 (5th Cir. 2017) (per curiam) (“report or surrender” requirement is not


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                                       No. 17-41099

standard, mandatory, or guidelines-recommended, but is instead a “permissive
special condition set forth in 18 U.S.C. § 3583(d) and in the Southern District
of Texas’s General Order 2014-01”). Because the district court did not orally
enumerate the surrender condition, Vasquez-Puente argues that there is
necessarily a conflict between the oral and written sentences and that the
written sentence must therefore be reformed. We disagree.
       We have recognized in numerous unpublished opinions that the district
court’s failure to orally enumerate a surrender condition (like the one at issue
here) may create a conflict with the written judgment, requiring excision of the
surrender condition from the written judgment. See, e.g., United States v.
Cepeda-Olguin, 736 F. App’x 489, 490–91 (5th Cir. 2018) (per curiam) (“We
have previously concluded that the addition [to the written judgment] of a
condition to surrender to immigration officials after release from prison
conflicts with oral pronouncements stating no such requirement where the
district court had not adopted it as a standard condition.”). 2 A conflict in these
circumstances is not inevitable, however. See, e.g., Rivas-Estrada, 906 F.3d at
351 (observing “not all unpronounced conditions create conflicts”). In another
unpublished opinion, Vasquez-Ruiz, we held that—despite the district court’s
failure to orally pronounce a similar surrender condition—there was no conflict
with the written judgment when the surrender requirement was “clearly
consistent with the district court’s intent that [the defendant] would be
deported upon his release from prison.” 702 F. App’x at 243. In reaching that



       2 See also, e.g., United States v. Alvarez, No. 17-40900, 2019 WL 919809, at *2 (5th
Cir. Feb. 22, 2019) (per curiam); United States v. Zepeda-Zalaberry, 458 F. App’x 342, 342–
43 (5th Cir. 2012) (per curiam); United States v. Vasquez-Parrales, 457 F. App’x 390, 391 (5th
Cir. 2012) (per curiam); United States v. Chinchilla-Comelly, 456 F. App’x 463, 464 (5th Cir.
2012) (per curiam); see also Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006)
(recognizing unpublished opinions issued after January 1, 1996 are “not controlling
precedent, but may be persuasive authority”).


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                                  No. 17-41099

conclusion, we cited our decision in Warden, which explained that “ambiguity”
between oral and written sentences requires us to “look to the intent of the
sentencing court, as evidenced in the record.” 291 F.3d at 365; see also, e.g.,
Mireles, 471 F.3d at 558 (explaining “[t]he key determination is whether the
discrepancy between the oral pronouncement and the written judgment is a
conflict or merely an ambiguity that can be resolved by reviewing the rest of
the record”).
      Following those principles, we find ambiguity—rather than conflict—
between Vasquez-Puente’s oral and written sentences. The special condition
that Vasquez-Puente surrender to immigration officials does not obviously
“conflict” with the district court’s oral pronouncement. Cf., e.g., Mireles, 471
F.3d at 558 (giving as examples of “conflicts” between oral and written
sentences a five-hour discrepancy in community service requirements and a
two-year discrepancy in supervised release terms (citing United States v.
Wheeler, 322 F.3d 823, 828 (5th Cir. 2003)); United States v. Moreci, 283 F.3d
293, 299–300 (5th Cir. 2002)). We must therefore determine the propriety of
the surrender condition by “look[ing] to the intent of the sentencing court, as
evidenced in the record,” Torres-Aguilar, 352 F.3d at 935 (quoting Warden, 291
F.3d at 365), seeking to determine whether “the oral and written
pronouncements are . . . reconcilable in this respect,” Mireles, 471 F.3d at 559.
See also, e.g., Martinez, 250 F.3d at 942 (unlike a conflict, “[i]f . . . there is
merely an ambiguity between the two sentences, the entire record must be
examined to determine the district court’s true intent” (citing United States v.
De la Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000))).
      Our review of the record convinces us that the surrender condition is
consistent with the district court’s intent that Vasquez-Puente be deported
after serving his prison term. At the sentencing hearing, the district court


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repeatedly warned Vasquez-Puente that, because he had been deported before,
he could not legally be present in the United States. Indeed, the court imposed
three years of supervised release specifically because, when Vasquez-Puente
was last deported, he remained outside the country “for only about one month.”
Moreover, Vasquez-Puente’s attorney explained that he had talked with his
client on several occasions about not returning to the United States because
the “sentences are just going to get higher and higher.” And Vasquez-Puente
himself apologized to the court for illegally entering the country and promised,
“I’m not coming back.” 3
       The record thus clarifies that the district court intended Vasquez-Puente
to be deported following his prison term. See, e.g., Torres-Aguilar, 352 F.3d at
935–36 (explaining an ambiguity between oral and written sentences “can be
clarified by viewing the written record”). We therefore cannot say that the
condition that Vasquez-Puente surrender to immigration officials “broadens
the restrictions or requirements of supervised release from [the] oral
pronouncement.” Mudd, 685 F.3d at 480 (quoting Mireles, 471 F.3d at 558). To
the contrary, the oral and written sentences are “reconcilable in this respect.”
Mireles, 471 F.3d at 558. To be sure, it would have been better had the district
court expressly enumerated the surrender condition at Vasquez-Puente’s
sentencing hearing. Based on this record, however, we cannot find that the




       3 Our conclusion is not changed by the district court’s statement that “[i]f [Vasquez-
Puente is] deported, it will be without active supervision.” That comment “creates, if
anything, an ambiguity” which we resolve by examining the overall record to find “the intent
of the sentencing court.” Warden, 291 F.3d at 365. As explained, the record shows the court
plainly told Vasquez-Puente he could not legally remain in, or return to, the country after
serving his sentence. See also, e.g., United States v. Nunez, 78 F. App’x 989, 991 (5th Cir.
2003) (per curiam) (explaining that this phrase means that “active supervision is suspended
upon [defendant’s] deportation and the actual term of supervised release will continue to run”
(citing United States v. Brown, 54 F.3d 234, 237–39 (5th Cir. 1995))).


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court abused its discretion by including the surrender condition in Vasquez-
Puente’s written judgment.
                                       B.
      We turn to the no-reentry condition—namely that, following deportation,
Vasquez-Puente “must remain outside the United States unless legally
authorized to reenter.” We disagree with Vasquez-Puente that inclusion of this
special condition in the written judgment creates a conflict with the district
court’s oral pronouncement. The no-reentry condition merely restated the
mandatory condition that Vasquez-Puente “must not commit another federal
. . . crime.” We have held that “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.” Torres-Aguilar, 352
F.3d at 938. The district court therefore did not abuse its discretion by
including a special condition duplicating the mandatory condition that
Vasquez-Puente “not break the law by entering the country illegally.” Cepeda-
Olguin, 736 F. App’x at 491; see also Alvarez, 2019 WL 919809, at *2 (no-
reentry condition does not conflict with oral sentence “because it is duplicative
of the mandatory condition that [defendant] is prohibited from violating the
law if and when he reenters the United States” (citations omitted)).
      AFFIRMED




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