     Case: 11-40064     Document: 00511639342         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 11-40064
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JESUS SOSA-GUERRA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1132-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jesus Sosa-Guerra pleaded guilty to being found in the United States after
deportation, having previously been convicted of a felony, and was sentenced to
24-months’ imprisonment and three-years’ supervised release. The district
court’s written judgment required:            “Within 72 hours of being placed on
supervised release or upon completion of the custody sentence, the defendant
shall surrender to a duly authorized immigration official.” Sosa maintains:
because the court did not impose this condition orally at sentencing, the written

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40064    Document: 00511639342       Page: 2   Date Filed: 10/20/2011

                                   No. 11-40064

judgment should be amended to conform to the court’s oral pronouncement. The
Government concedes the error and agrees the written judgment should be
amended.
      Because Sosa 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 abuse of discretion. See, e.g., 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 (emphasis in
original) (citation and internal quotation marks omitted).
      As Sosa contends, the condition imposed by the district court in the
written judgment is not listed among the standard conditions of supervised
release found either in Guideline § 5D1.3(c) or the relevant portion of the
Southern District of Texas’ General Order No. H-1996-10. Furthermore, the
condition does not comport with the recommended special condition of
supervised release ordering deportation in Guideline § 5D1.3(d)(6). Thus, the
imposition of this special condition in the written judgment, but not orally at
sentencing, constituted an abuse of discretion.
      AFFIRMED in part; VACATED in part; and REMANDED for amendment
of the written judgment consistent with this opinion.




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