     Case: 17-50556       Document: 00514504934         Page: 1     Date Filed: 06/07/2018




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

                                                                                 FILED
                                     No. 17-50556                             June 7, 2018
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ROLANDO GOMEZ-TOLENTINO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1709-1


Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       Rolando Gomez-Tolentino challenges the above-Guidelines sentence of
32 months’ imprisonment and three years’ supervised release, imposed for his
guilty-plea conviction for illegal reentry. Gomez contends: the sentence is
substantively unreasonable; and, with respect to the conditions of supervised
release, there is a conflict between the oral pronouncement of sentence and the
written judgment.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
      Case: 17-50556   Document: 00514504934       Page: 2   Date Filed: 06/07/2018


                                   No. 17-50556

       Although post-Booker, the Sentencing 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, 48–51 (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). Because Gomez objected, at
sentencing, to his sentence as being “greater than necessary to effectuate the
factors in Section 3553(a)”, review is for abuse of discretion. Gall, 552 U.S. at
51.
       Gomez’ substantive-reasonableness challenges are unpersuasive. First,
there is no authority supporting his claim that, inter alia, Guideline § 2L1.2
improperly double-counts prior convictions. Indeed, our court has rejected
similar challenges to the former version of that Guideline. E.g., United States
v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009).
       Second, the district court was aware of Gomez’ mitigating assertions but
imposed a sentence slightly above the Guidelines range in order to account for
his history and characteristics of being convicted again for illegal reentry and
for previously committing a sex offense (indecent liberties with a child). See
18 U.S.C. § 3553(a)(1).     Gomez’ disagreement with the balancing of these
§ 3553(a) factors, especially in the light of the deference given the district court,
does not amount to the requisite abuse of discretion. E.g., Gall, 552 U.S. at 51;
United States v. Smith, 440 F.3d 704, 710 (5th Cir. 2006). The judgment in
this respect is affirmed.



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    Case: 17-50556    Document: 00514504934     Page: 3   Date Filed: 06/07/2018


                                 No. 17-50556

      Regarding Gomez’ claim there is a conflict between the oral
pronouncement of his sentence and the written judgment with respect to the
special conditions of supervised release, and because he did not have an
opportunity at sentencing to object to, or comment on, special conditions of
supervised release later imposed in the written judgment, review is for abuse
of discretion. E.g., United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006);
United States v. Conley, 688 F. App’x 288, 289 (5th Cir. 2017).
      A defendant has a constitutional right to be present at sentencing.
United States v. Torres-Aguilar, 352 F.3d 934, 935–36 (5th Cir. 2003).
Accordingly, if the oral pronouncement of sentence conflicts with the written
judgment, the former controls. Id. Along that line, there is no conflict if the
only difference between the oral pronouncement and the written judgment is
that the latter includes conditions that are mandatory, standard, or
recommended under the Guidelines; conversely, there is a conflict if the
written judgment contains a special condition the court did not orally
pronounce. Id. at 936, 938.
      Gomez contests the imposition of the written conditions that require him
to participate in sex-offender treatment, refrain from unsupervised contact
with minors, and not reside within certain distances of certain kinds of
facilities. The court did not orally pronounce these conditions, and its oral
pronouncement that “[a]ny additional SORNA conditions shall apply”,
concerning the Sex Offender Registration and Notification Act, cannot be
interpreted as reflecting its intent to impose the challenged conditions. The
challenged conditions may be typically imposed on a defendant convicted of a
sex offense, and a defendant convicted of a sex offense may also be subject to
SORNA; no stronger nexus, however, renders them “SORNA conditions”.




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    Case: 17-50556    Document: 00514504934    Page: 4   Date Filed: 06/07/2018


                                No. 17-50556

      The   challenged   conditions   are   not   mandatory,    standard,    or
recommended conditions, and they have not been adopted as standard
conditions by the Western District of Texas. See U.S.S.G. § 5D1.3; 18 U.S.C.
§ 3583. Therefore, the court was required to orally pronounce these conditions;
and, by failing to do so, it created a conflict between the oral pronouncement
and the written judgment. E.g., Torres-Aguilar, 352 F.3d at 935–36. To the
extent of this conflict, the judgment is vacated, and the case is remanded to
district court with instructions to conform the written judgment to the oral
pronouncement of sentence. See Bigelow, 462 F.3d at 384.
      AFFIRMED in part; VACATED in part; REMANDED.




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