     Case: 18-41171       Document: 00515224402         Page: 1     Date Filed: 12/05/2019




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

                                                                                  FILED
                                                                             December 5, 2019
                                     No. 18-41171                              Lyle W. Cayce
                                   Summary Calendar                                 Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EMMANUEL RAVELL,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:17-CR-854-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Emmanuel Ravell does not challenge his guilty-plea conviction for
possession, with intent to distribute, 50 grams or more of methamphetamine,
in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. On the other hand, he
challenges his sentence—300 months’ imprisonment and five years’ supervised
release—claiming:        the district court erroneously calculated his criminal-




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-41171

history score; and the court’s oral sentencing pronouncement conflicts with the
written judgment.
      For the criminal-history issue, although post-Booker, the Guidelines are
advisory only, the district court must avoid significant procedural error, such
as improperly calculating the Guidelines sentencing range. Gall v. United
States, 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly
preserved objection to an ultimate sentence is reviewed for substantive
reasonableness under an abuse-of-discretion standard. Id. at 51; United States
v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error.       E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Ravell, however, did not preserve in district court his contention
regarding the criminal-history calculation; therefore, review of this issue is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Ravell must show a forfeited plain error
(clear or obvious error, rather than one subject to reasonable dispute) that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct such
reversible plain error, but generally should do so only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings”. Id.
      As relevant to this claim, Ravell had twice been sentenced to deferred-
adjudication probation in Texas. In each instance, however, he subsequently
violated the terms of his probation, was adjudicated guilty, and sentenced to
terms of imprisonment. And in each instance, he had not been sentenced to an
original term of imprisonment; instead, he received a prison sentence only
following the court’s revoking his deferred-adjudication probation. He claims,



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                                  No. 18-41171

therefore, that the court plainly erred by calculating his criminal history
pursuant to Guideline § 4A1.2(k) because that Guideline requires the court’s
adding “the original term of imprisonment to any term of imprisonment
imposed upon revocation”. U.S.S.G. § 4A1.2(k).
      Our court has never decided this issue but, in the context of considering
an Anders brief’s sufficiency, has stated that “[a]rguably, a plain reading of the
guidelines” supported a similar claim, because Guideline § 4A1.2(k) “expressly
contemplates an ‘original term of imprisonment’ that is not present in a
deferred adjudication”. See United States v. Rodriguez, 603 F. App’x 297, 300
(5th Cir. 2015). The Guidelines’ commentary, however, notes that § 4A1.2(k)
“covers revocations of probation and other conditional sentences where the
original term of imprisonment imposed, if any, did not exceed one year and one
month”. U.S.S.G. § 4A1.2 cmt. n.11 (emphasis added). The “commentary is
authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline”. United
States v. Ramirez-Olvera, 804 F.3d 700, 701 (5th Cir. 2015) (citation omitted).
At best, Ravell’s claim is “subject to reasonable dispute” and, therefore, cannot
constitute the requisite plain (clear or obvious) error. See Puckett, 556 U.S. at
135 (citation omitted).
      Regarding the claimed conflict between the oral pronouncement at
sentencing and the written judgment, because Ravell did not have an
opportunity to object to the judgment, whether it conflicts with the
pronouncement is reviewed for abuse of discretion. United States v. Rivas-
Estrada, 906 F.3d 346, 348–49 (5th Cir. 2016) (citations omitted). Where the
oral pronouncement and written judgment vary, the former controls. United
States v. Shaw, 920 F.2d 1225, 1231 (5th Cir. 1991) (citation omitted). If the
two conflict, the case generally is remanded to district court for it to amend the



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written judgment to conform to the oral pronouncement. See United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
      In this instance, the court stated orally that Ravell “must participate in
a mental health treatment program and follow the rules and regulations of
that program” while on supervised release. It then stated that, when he began
his supervised release, he should be evaluated to determine the need for such
mental-health treatment.         Depending on the success of any treatment
programs during his incarceration, the probation office could recommend the
special condition requiring his participation “be lifted”. As the Government
concedes, the written judgment omitted the evaluation requirement and the
probation   office’s   ability   to    recommend      lifting   Ravell’s   mandatory
participation; therefore, it conflicts with the oral pronouncement. Accordingly,
as the Government also acknowledges, this case must be remanded for the
limited purpose of the district court’s conforming the written judgment to its
oral pronouncement.
      AFFIRMED; REMANDED for the limited purpose of the district court’s
conforming the written judgment to its oral pronouncement.




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