                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                          F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                              September 3, 2004

                                                                       Charles R. Fulbruge III
                                 No. 03-40975                                  Clerk


                       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,
                                      versus

                             SANTIAGO SANTILLANA,

                                                        Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                           (B-03-CR-126-1)


Before BARKSDALE and PICKERING, Circuit Judges, and LYNN*,

District Judge.

PER CURIAM:**

       Santiago Santillana pleaded guilty to conspiring to transport

and    harbor   illegal      aliens,    in     violation      of   8     U.S.C.     §

1324(a)(1)(A)(v)(I).      He was sentenced, inter alia, to 37 months’

imprisonment and three years’ supervised release.                       Santillana

claims the judgment (written judgment) improperly added a condition

of    supervised   release    (“not    possess    ...   any    other     dangerous




       *
      District Judge for the Northern District of Texas, sitting by
designation.
       **
      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this opinion should not be published and is not precedent except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.
weapon”) not mentioned in the oral sentence pronouncement and that

this condition is vague and overbroad.                 AFFIRMED.

                                         I.

     At sentencing, the district court stated, inter alia, that

Santillana   would     serve     three        years’   supervised    release,     in

compliance with the standard conditions required by law and the

special   conditions    that     he   not      unlawfully    possess   or   use    a

controlled substance and that he attend a substance abuse program;

and that he “not possess a firearm or destructive device”.                       The

written judgment, however, stated, inter alia:                     “The defendant

shall not possess a firearm, destructive device, or any other

dangerous weapon”.     (Emphasis added.)

                                         II.

                                         A.

     Santillana contends the “not possess ... any other dangerous

weapon”   condition    is   an   additional        special    condition     of   his

supervised release that was not pronounced at oral sentencing and

is therefore improper.           Obviously, Santillana could not have

objected at sentencing to the any-other-dangerous-weapon condition

because it was not imposed until the written judgment.                 Therefore,

we review for abuse of discretion the imposition of the condition.

United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).




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                                       1.

      Santillana relies on United States v. Martinez, 250 F.3d 941,

942 (5th Cir. 2001), which held a defendant’s constitutional right

to be present at sentencing requires that, “when there is conflict

between a written sentence and an oral pronouncement, the oral

pronouncement controls”.      In Martinez, the district court imposed

a special condition of mandatory drug treatment in its written

judgment that had not been orally pronounced at sentencing. Id.

Martinez held it was significant that the mandatory drug treatment

was a     “special”   condition   of   release   that   imposed   a   greater

restriction on liberty than the “standard” conditions, which need

not be specifically included in the oral pronouncement.                   Id.

Because    the   district   court’s    failure   to   mention   the   special

condition of drug treatment at sentencing created a conflict with

the written judgment, we remanded for the district court to amend

the written judgment to conform to the oral sentence pronouncement.

Id.

      Santillana’s reliance on Martinez is misplaced; the any-other-

dangerous-weapon restriction is not a special condition.                  The

condition is stated in the written judgment’s standard “supervised

release” section, not in the “special conditions of supervision”

section.

      In Torres-Aguilar, we held prohibiting the defendant from

possessing “any other dangerous weapon” during supervised release

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was a standard condition because it was recommended by Sentencing

Guidelines § 5D1.3(d)(1) for all defendants convicted of a felony.

352 F.3d at 938.       Accordingly, because Santillana was convicted of

a felony, the addition of the standard dangerous-weapon condition

in the written judgment did not conflict with the district court’s

oral pronouncement.        Id.

     Torres-Aguilar is controlling.               The district court did not

abuse its discretion by including the dangerous-weapon condition in

the written judgment.

                                         2.

     Santillana claims Torres-Aguilar violates Article III of the

Constitution    by     failing    to    follow    United     States    v.    Gurrola-

Martinez,    No.    02-20945,     74    Fed.     Appx.   383   (5th    Cir.    2003)

(unpublished)(remanding to district court for written judgment to

conform to oral sentence pronouncement where oral sentence did not

contain “any dangerous weapon” supervised release condition).                      He

cites   no   Supreme      Court   or   published     Fifth     Circuit      authority

supporting this contention and our local Rule 47.5.4 states that

unpublished opinions issued after 1 January 1996 are not precedent,

except in limited circumstances not applicable here.                   Cf. Williams

v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir. 2001) (denial

of petition for rehearing en banc over dissent questioning Fifth

Circuit’s    rule    of   denying      precedential      status   to   unpublished

opinions).

                                          4
                                     B.

      Santillana     next   maintains       the     any-other-dangerous-weapon

condition should be deleted from the written judgment because it is

vague   and   overbroad.      Although      the     district    court       has    wide

discretion in imposing these conditions, they “must be reasonably

related to ‘the nature and circumstances of the offense and the

history     and   characteristics   of      the     defendant’,    18       U.S.C.   §

3355(a)(1); and must involve no greater deprivation of liberty than

is reasonably necessary in the light of the need to ‘afford

adequate deterrence to criminal conduct’, 18 U.S.C. § 3553(a)(2)(B)

[,   and]   ‘to   protect   the   public     from     further     crimes      of    the

defendant’, 18 U.S.C. § 3553(a)(2)(C)”.              United States v. Coenen,

135 F.3d 938, 944-45 (5th Cir. 1998) (emphasis in original).                        For

the following reasons, we hold there was no abuse of discretion.

                                     1.

      We interpret Santillana’s “overbreadth” challenge to mean the

any-other-dangerous-weapon        condition          violates     the       limiting

requirement that it involve no greater deprivation on liberty than

necessary to achieve its goals.             See United States v. Paul, 274

F.3d 155, 165 n.12 (5th Cir. 2001), cert. denied, 535 U.S. 1002

(2002).     Santillana was convicted of transporting illegal aliens

and while on supervised release is prohibited from committing both

federal and state crimes.         Under these circumstances, the any-

other-dangerous-weapon       condition       does    not   involve      a    greater


                                        5
deprivation      of   liberty   than   is     necessary   to   afford   adequate

deterrence of criminal conduct and to protect the public from

further crimes by him.

                                        2.

     For    Santillana’s        vagueness      challenge,      we   have   held:

“Conditions of probation may afford fair warning even if they are

not precise to the point of pedantry.               In short, conditions of

probation can be written — and must be read — in a commonsense

way”.      Id.   at   167   (citations       omitted;   emphasis    added).     A

“dangerous weapon” is defined by the Guidelines as

            (i) an instrument capable of inflicting death
            or serious bodily injury; or (ii) an object
            that is not capable of inflicting death or
            serious   bodily   injury  but   (I)   closely
            resembles such an instrument; or (II) the
            defendant used the object in a manner that
            created the impression that the object was
            such an instrument (e.g. a defendant wrapped a
            hand in a towel during a bank robbery to
            create the appearance of a gun).

U.S.S.G. § 1B1.1, comment (n.1(d)).              When read in the requisite

commonsense manner, this definition reflects that intent to cause

harm is required in order to characterize as a dangerous weapon an

instrument which is not dangerous when used in its customary

manner.

                                       III.

     For the foregoing reasons, the judgment is

                                                                    AFFIRMED.



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