     Case: 11-10545     Document: 00511946416         Page: 1     Date Filed: 08/06/2012




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

                                                                            FILED
                                                                           August 6, 2012

                                       No. 11-10545                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JUAN CARLOS RODRIGUEZ-BARAJAS,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:10-CR-81-1


Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Juan Carlos Rodriguez-Barajas appeals following his guilty plea conviction
for illegal re-entry after deportation. He contends that two special conditions of
supervised release imposed in the district court’s written judgment conflict with
the oral pronouncement of his sentence. The Government concedes error on one
of the conditions.
        When a written entry of judgment conflicts with the oral pronouncement
of sentence made at a sentencing hearing, the oral pronouncement controls and

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10545   Document: 00511946416     Page: 2   Date Filed: 08/06/2012



                                 No. 11-10545

the written judgment must be conformed to the oral pronouncement. United
States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). If the difference between
the written and oral judgments merely creates an ambiguity, we may examine
the entire record to determine the intent of the sentencing court. United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
      The district court here orally ordered as a special condition of supervised
release that Rodriguez-Barajas “participate in a program approved by the
United States Probation Office for the treatment of narcotic, drug, or alcohol
dependency.”    The written judgment ordered that Rodriguez-Barajas also
“abstain from the use of alcohol and/or all other intoxicants during and after
completion of treatment.” Rodriguez-Barajas argues that there is a conflict
because the oral pronouncement did not include the abstention provision or
require that he successfully complete treatment; therefore, he asserts that it is
possible that he could participate in an alcohol/drug treatment program while
at the same time continuing to use those substances.          This argument is
unpersuasive. The record shows that Rodriguez-Barajas has a history of alcohol
abuse, which includes prior convictions for driving while intoxicated and assault
while drunk, and he has been previously ordered to attend Alcoholics
Anonymous while on a prior probation. Read in light of that context, the district
court’s written judgment adds nothing not implicit in the court’s oral
pronouncement and intent directing that Rodriguez-Barajas receive treatment
for substance dependency. See United States v. Warden, 291 F.3d 363, 365 (5th
Cir. 2002).
      That is not the case, however, with respect to the portion of the district
court’s written judgment ordering as a special condition of supervised release
that “upon completion of his term of imprisonment, the defendant is to be
surrendered to a duly-authorized immigration official for deportation.” The
district court did not mention this provision at the sentencing hearing, and the

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                                 No. 11-10545

Government concedes that it conflicts with the oral pronouncement of sentence.
We agree. The condition imposed is not listed in the sentencing guidelines as a
standard or mandatory condition of supervised release, and it is not among the
conditions recommended by the Sentencing Commission insofar as the record
does not support its application here. See U.S.S.G. § 5D1.3(c) & (d)(6); see also
United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003) (holding that
a conflict with oral pronouncement is not created by including conditions that
are standard, mandatory, or recommended by the Sentencing Commission). The
written judgment improperly conflicts with the oral pronouncement. See United
States v. Cruz-Nagera, 454 F. App’x 371, 372 (5th Cir. 2011). We therefore
modify the judgment to excise the provision requiring that Rodriguez-Barajas
be “surrendered to a duly-authorized immigration official for deportation.”
      AFFIRMED AS MODIFIED.




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