     Case: 16-40137      Document: 00513762780         Page: 1    Date Filed: 11/16/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-40137                                 FILED
                                  Summary Calendar                       November 16, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARTIN GUILLEN-CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:10-CR-1446-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Martin Guillen-Cruz appeals the revocation of the supervised release
term imposed upon his 2012 conviction for exporting defense articles on the
United States Munitions List without a license. In 2016, Guillen-Cruz pleaded
true to violating a special condition of supervised release requiring that he “not
re-enter the United States illegally.” The district court found that he violated




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40137     Document: 00513762780     Page: 2   Date Filed: 11/16/2016


                                  No. 16-40137

this condition and several others, revoked his supervision, and sentenced him
to 12 months and one day of imprisonment.
      Guillen-Cruz argues that there was no special condition of supervised
release prohibiting him from reentering the United States illegally and that
the district court committed plain error by finding that he violated this
nonexistent condition and by including the violation in the judgment of
conviction. He contends that the judgment of conviction should be vacated and
the case should be remanded to the district court for a correction of the
judgment.
      Ordinarily, we review a district court’s decision to revoke supervised
release for abuse of discretion. United States v. Spraglin, 418 F.3d 479, 480
(5th Cir. 2005). However, because Guillen-Cruz did not object in the district
court, we review the issue for plain error. See United States v. Magwood, 445
F.3d 826, 828 (5th Cir. 2006). Under the plain error standard, Guillen-Cruz
must show a clear or obvious forfeited error that affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If Guillen-Cruz makes
such a showing, this court has discretion to correct the error but should do so
only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. See id.
      Neither the 2012 judgment of conviction nor the district court’s oral
pronouncement of sentence included a special condition of supervised release
prohibiting Guillen-Cruz from illegally reentering the United States.
Accordingly, the district court committed clear or obvious error when it found
that Guillen-Cruz violated a nonexistent condition of supervised release. See
Puckett, 556 U.S. at 135. Nevertheless, Guillen-Cruz has not demonstrated
that the error affected his substantial rights. The disputed violation was one
of five violations found by the district court and listed in the judgment of



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                                No. 16-40137

conviction. The remaining violations, none of which are being challenged on
appeal, sufficed to allow a revocation of Guillen-Cruz’s supervised release.
Moreover, the disputed special condition is somewhat duplicative of the
mandatory condition prohibiting Guillen-Cruz from violating a state, local or
federal law, and he does not challenge the district court’s finding that he
violated that mandatory condition by being found in the United States
following deportation.
      Guillen-Cruz has not shown that the inclusion of his violation of the
nonexistent condition in the judgment of conviction affects his substantial
rights. Accordingly, he has not demonstrated plain error.
      The district court’s judgment is AFFIRMED.




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