     Case: 11-11203     Document: 00511968488         Page: 1     Date Filed: 08/24/2012




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

                                                                            FILED
                                                                          August 24, 2012
                                     No. 11-11203
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

EVARISTO RAMOS-GUTIERREZ,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:11-CR-21-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Evaristo Ramos-Gutierrez appeals the 36-month above-guidelines sentence
imposed in connection with his conviction for illegal reentry following
deportation. Ramos-Gutierrez contends that the sentence should be vacated and
the case should be remanded for resentencing because the written sentence
imposes a special condition of supervised release not announced at sentencing
and thus conflicts with the oral pronouncement.                 Specifically, the written
judgment contains a special condition, not articulated at sentencing, requiring

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-11203

that “upon completion of his term of imprisonment, the defendant is to be
surrendered to a duly authorized immigration official for deportation.” The
Government concedes this issue.
      Because Ramos-Gutierrez 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 an abuse of discretion. See 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 (internal
quotation marks omitted).
      The condition imposed by the district court in the written judgment is not
listed among the standard conditions of supervised release found in U.S.S.G.
§ 5D1.3(c). Further, the condition does not comport with the recommended
special condition of supervised release ordering deportation in § 5D1.3(d)(6).
Because the condition was not orally pronounced at sentencing, the district
court abused its discretion in imposing the special condition in the written
judgment.
      Ramos-Gutierrez also challenges the substantive reasonableness of his
sentence. He argues that the district court failed to accord proper weight to his
mitigating factors, including the fact that he had abstained from alcohol for a
period of seven years prior to the instant offense.
      In reviewing the substantive reasonableness of the sentence, we consider
“the totality of the circumstances, including the extent of any variance from the

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                                 No. 11-11203

Guidelines range” and “must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall
v. United States, 552 U.S. 38, 51 (2007).
      Ramos-Gutierrez’s argument does not show that the district court’s non-
guidelines sentence unreasonably failed to reflect the statutory sentencing
factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Rather,
his complaints amount to a mere disagreement with the weight the district court
gave to the various sentencing factors and thus are insufficient to warrant
reversal. See Gall, 552 U.S. at 51. Ramos-Gutierrez has not shown that the 36-
month sentence, which was twice the guidelines maximum, was substantively
unreasonable.
      The judgment is AFFIRMED in part and VACATED in part, and the case
is REMANDED for amendment of the written judgment consistent with this
opinion.




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