     Case: 08-41081     Document: 00511064961          Page: 1    Date Filed: 03/29/2010




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

                                                  FILED
                                                                           March 29, 2010
                                     No. 08-41081
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE VASQUEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:06-CR-545-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jorge Vasquez appeals the sentence imposed for his conviction on one
count of receipt of child pornography. The district court sentenced Vasquez to
97 months in prison, at the bottom of the applicable guidelines range, and a life
term of supervised release. After United States v. Booker, 543 U.S. 220 (2005),
this court reviews sentences for reasonableness. Gall v. United States, 552 U.S.
38, 46 (2007).     We first examine whether the district court committed any
procedural errors. Id. at 51. If the district court’s decision is procedurally

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41081

sound, we will then “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 46.
      Vasquez argues that the district court erred as a matter of law in
sentencing him based on U.S.S.G. § 2G2.2 because this Guideline was
formulated on amendments by Congress directly, without empirical study and
institutional support by the Sentencing Commission. He contends that the
district court was prohibited from considering § 2G2.2 in sentencing him and
that this court should not apply a presumption of reasonableness to the
guidelines range calculated under § 2G2.2.          Vasquez concedes that this
argument was rejected in United States v. Mondragon-Santiago, 564 F.3d 357,
367 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). However, he seeks to preserve
the argument for further review.
      Vasquez has not shown that the district court abused its discretion in
considering § 2G2.2 in sentencing him. See Gall, 552 U.S. at 46; see also United
States v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
He also has not established that this court may not apply a presumption of
reasonableness to the sentence imposed within the applicable guidelines range.
See Mondragon-Santiago, 564 F.3d at 367. The imposition of the 97-month
sentence is thus affirmed.
      Vasquez also challenges the condition of his supervised release requiring
him to participate in a sexual offender treatment program. At the sentencing
hearing, the district court stated that the probation officer could determine the
frequency and duration of such a program but that Vasquez “will be required to
participate in such a program unless [his] Probation Officer waives that
requirement with the approval of the Court.” The written judgment, however,
orders him to “participate in a treatment program for sex offenders as deemed
necessary and approved by the probation officer.”
      Vasquez complains that the language used in the written judgment gives
the probation officer exclusive authority to determine not only the details of the

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                                No. 08-41081

treatment program, but whether Vasquez must participate in any such program
at all. Because the disputed language was not used at sentencing and Vasquez
thus had no opportunity to object to it prior to the entry of judgment, we review
for abuse of discretion. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.
2006); United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).
      In United States v. Lopez-Muxtay, 344 F. App’x 964, 965 (5th Cir. 2009),
we vacated and remanded a sentence in which the written judgment contained
language identical to the language used in Vasquez’s case and in which the
district court’s oral judgment was silent about the probation officer’s
involvement in the required mental health treatment. 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 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
Vasquez’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.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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