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

                                                                  FILED
                                                                January 27, 2009
                               No. 08-40542
                          USDC No. 7:08-CR-37-ALL           Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

JUAN RICARDO GALVAN-RODRIGUEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 7:08-CR-37


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      The Federal Public Defender appointed to represent Juan Ricardo Galvan-
Rodriguez has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967). Galvan-Rodriguez has filed a
response. An independent review of the record and counsel’s brief reveals a
potentially nonfrivolous issue for appeal, specifically, whether the case should
be remanded for correction of the judgment in light of a discrepancy between the
oral pronouncement of sentence and the written judgment. At sentencing, the
district court stated that it would recommend that Galvan-Rodriguez’s 77-month



      *
      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should not be published and is not precedent except under the limited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. 08-40542

sentence run concurrently with any sentence that Galvan-Rodriguez was facing.
However, the district court did not include this recommendation in its written
judgment.
      Counsel acknowledges the discrepancy between the oral pronouncement
of sentence and the written judgment, but counsel asserts that the issue does not
constitute reversible plain error. Although normally issues raised for the first
time on appeal are reviewable only for plain error, review of the issue is not
necessarily limited to plain error because Galvan-Rodriguez did not have the
opportunity to object to the written judgment at sentencing. See United States
v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006); see also United States v. Vega, 332
F.3d 849, 851 n.1 (5th Cir. 2003).
      “In this Circuit, it is well settled law that where there is any variation
between the oral and written pronouncements of sentence, the oral sentence
prevails.”   United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir.1991).
Ordinarily, when there is a discrepancy between the oral pronouncement of
sentence and the written judgment, the case is remanded to have the district
court amend the written judgment to conform to its oral judgment at sentencing.
See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
Notwithstanding that the oral pronouncement prevails and Galvan-Rodriguez
did not receive the benefit of the concurrent sentence recommendation, counsel
contends that no reversible plain error occurred here. Counsel’s one-paragraph
argument does not convince us that a nonfrivolous issue is not presented here.
Given that our precedent holds that oral pronouncements prevail, we find that
there is a nonfrivolous issue for appeal. We view counsel’s argument more akin
to a harmless error argument as opposed to a nonfrivolous analysis.
      Accordingly, we DENY the motion to withdraw and in the interest of
efficiency REMAND to the district court with instructions to correct the
judgment with respect to the court’s oral pronouncement and have the district
court clerk file the corrected judgment with the clerk of this court. We retain

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                                 No. 08-40542

jurisdiction, and upon the district court’s compliance, appointed counsel shall
be able to file a new appellate brief or file a new Anders brief such as the case
warrants. Also, Galvan-Rodriguez’s response shall remain on file with respect
to any new appellant’s brief or Anders brief that might be filed.




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