     Case: 10-10855     Document: 00511701788         Page: 1     Date Filed: 12/20/2011




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

                                                                            FILED
                                                                        December 20, 2011
                                     No. 10-10855
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERASMO ROBERTO CRUZ-NAGERA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:10-CR-12-1


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Erasmo Roberto Cruz-Nagera pleaded guilty to illegal reentry after
deportation, and he was sentenced to 60 months of imprisonment and to three
years of supervised release. Cruz-Nagera’s written judgment included as a
special condition of supervised release the requirement that “upon completion
of his term of imprisonment, [he] is to be surrendered to a duly-authorized
immigration official for deportation.” The district court did not mention this
special condition at sentencing.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10855    Document: 00511701788      Page: 2    Date Filed: 12/20/2011

                                  No. 10-10855

      Cruz-Nagera argues that because the district court did not orally impose
this condition at sentencing, the written judgment should be amended to
conform with the district court’s oral pronouncement of his sentence. Because
Cruz-Nagera did not have the opportunity at sentencing to challenge the district
court’s inclusion of this special condition in the written judgment, we review the
district court’s imposition of this condition for an abuse of discretion. See United
States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
      Where 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.
However, “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 (internal quotation marks and citation omitted).
      The condition imposed by the district court is not listed among the
standard conditions of supervised release found in U.S.S.G. § 5D1.3(c).
Furthermore, the condition is not recommended under § 5D1.3(d)(6) because the
record does not support that the section applies here. Because the district court
did not impose this special condition orally at sentencing, the district court
abused its discretion by including it in the written judgment, and this case must
be remanded for the district court to amend its written judgment to conform
with its oral sentence. See United States v. Wheeler, 322 F.3d 823, 828 (5th Cir.
2003).
      For the above reasons, we AFFIRM in part, VACATE in part, and
REMAND for amendment of the written judgment consistent with this opinion.




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