     Case: 10-40748     Document: 00511646845         Page: 1     Date Filed: 10/27/2011




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

                                                                            FILED
                                                                         October 27, 2011
                                     No. 10-40748
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

NOE MARTIN SALMERON-CRUZ, also known as Fernando Fuentes,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-28-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Noe Martin Salmeron-Cruz pleaded guilty to being found in the United
States after deportation, having previously been convicted of a felony; he was
sentenced to 37-months’ imprisonment and three-years’ supervised release. The
written judgment included as a special condition of supervised release the
requirement that, “[w]ithin 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”. Salmeron contends: because the district court
did not orally impose this special condition at sentencing, the written judgment

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40748    Document: 00511646845       Page: 2   Date Filed: 10/27/2011

                                   No. 10-40748

should be amended and the condition removed to conform with the district
court’s oral pronouncement.
      Because Salmeron had no opportunity at sentencing to challenge the
special condition, the district court’s subsequent imposition of the condition is
reviewed for abuse of discretion. E.g., United States v. Bigelow, 462 F.3d 378,
381 (5th Cir. 2006). When a written judgment and an oral pronouncement
conflict, the latter controls. United States v. Torres-Aguilar, 352 F.3d 934, 935
(5th Cir. 2003). On the other hand, “the [written] judgment’s inclusion of
conditions [not pronounced orally] that are mandatory, standard, or
recommended by the Sentencing Guidelines does not create a conflict”. Id. at
938. But, “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 Salmeron contends, the special condition 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 is not rendered standard or mandatory
by 18 U.S.C. § 3583(d) (“If an alien . . . is subject to deportation, the court . . .
may order that he be delivered to [an immigration official]”. (emphasis added)).
Nor does the condition comport with the recommended special condition of
supervised release ordering deportation in Guideline § 5D1.3(d)(6) (applies only
when alien has consented to deportation or Government has proved by clear and
convincing evidence alien is deportable, neither of which occurred here).
Therefore, because the district court did not impose the special condition orally
at sentencing, its inclusion in the written judgment creates a conflict and was
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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