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

                                                                   FILED
                                                                September 16, 2008
                               No. 07-40981
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RUBEN GOMEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:07-CR-156-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Ruben Gomez appeals his 235-month sentence following his guilty plea
convictions for distribution of child pornography and attempting to persuade a
female under the age of 18 to engage in sexual activity. He contends that his
within-guideline sentence is procedurally unreasonable because the district
court did not give a sufficient explanation for the sentence. Because Gomez did
not object to the explanation at sentencing, we review this contention for plain



      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-40981

error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).
The district court listened to the arguments of the parties and indicated that it
had read the defense objections, which requested a sentence below the applicable
guideline range. See United States v. Gomez-Herrera, 523 F.3d 554, 565 (5th Cir.
2008); see also Rita v. United States, 127 S. Ct. 2456, 2463-65, 2468 (2007).
There was no clear or obvious error that affected Gomez’s substantial rights or
rendered the sentence procedurally unreasonable. See United States v. Izaguirre
Losoya, 219 F.3d 437, 441 (5th Cir. 2000).
      Gomez also contends that in light of Gall v. United States, 128 S. Ct. 586
(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which issued after
his sentence, the district court labored under a misconception that it could not
sentence Gomez below the Guidelines in the absence of “extraordinary
circumstances” or based on the court’s disagreement with guideline policy.
Nothing in the record suggests that the district court was constrained by this
court’s precedent from considering all of Gomez’s arguments for a nonguideline
sentence. Accordingly, there was no reversible plain error. See United States v.
Campos-Maldonado, ___ F.3d ___, 2008 WL 2357364, at *2 (5th Cir. June 11,
2008)(No. 07-20715).
      Gomez also contends that his sentence is substantively unreasonable
because there is no empirical support for U.S.S.G. § 2G2.2, the Guideline
governing child pornography. He did not challenge the empirical grounds for
§ 2G2.2 in the district court, so his contention is reviewed for plain error. See id.
Nothing in the record suggests that the district court disagreed with the policy
behind the Guideline or believed that it was precluded by circuit precedent from
imposing a lesser sentence in the face of § 2G2.2. The judgment of the district
court is thus affirmed as to the sentence imposed.
      Gomez also contends that the written judgment includes special conditions
of supervised release that were not included in the oral pronouncement of
sentence. The record reflects, and the Government concedes, that the oral

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                                  No. 07-40981

pronouncement of sentence did not include the special conditions stating that
Gomez may not contact the victim or her family and may not “view, possess or
have under his/her control, any nude depictions of children, [or] sexual oriented
or sexual stimulating materials” and may not patronize places where sexually
oriented materials are the “primary source of business.” Accordingly, the case
is remanded for the limited purpose of excising these special terms of supervised
release from the written judgment. See United States v. Vega, 332 F.3d 849, 853
n.8 (5th Cir. 2003); United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
      AFFIRMED AND REMANDED.




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