     Case: 18-20788       Document: 00515104496         Page: 1     Date Filed: 09/04/2019




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


                                     No. 18-20788                               FILED
                                   Summary Calendar                     September 4, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FRANCISCO JAVIER CASTILLO MORALES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CR-390-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Francisco Javier Castillo Morales challenges his sentence for illegal
reentry, in violation of 8 U.S.C. § 1326(a) and punishable under § 1326(b)(1).
He asserts:      the district court erred by including a special condition of
supervised release in the written judgment that was not orally pronounced at
sentencing, requiring him to “immediately report to U.S. Immigration and
Customs Enforcement and follow all their instructions and reporting


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 18-20788

requirements until any deportation proceedings are completed”; and our court
should, accordingly, vacate the judgment and remand for entry of an amended
judgment, removing the special condition.
      The special condition requiring surrender is reviewed for abuse of
discretion. E.g., United States v. Vasquez-Puente, 922 F.3d 700, 703 (5th Cir.
2019); United States v. Rivas-Estrada, 906 F.3d 346, 349 (5th Cir. 2018). In
that regard, if “there is a conflict between a written sentence and an oral
pronouncement, the oral pronouncement controls”. Vasquez-Puente, 922 F.3d
at 703 (quoting United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.
2003) (per curiam)). “If, however, there is merely an ambiguity between oral
and written sentences, then we must look to the intent of the sentencing court,
as evidenced in the record[,] to determine the defendant’s sentence.”          Id.
(quoting Torres-Aguilar, 352 F.3d at 935) (internal quotation marks omitted);
see also United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006)
(distinguishing “ambiguity” in sentences from “conflicting” oral and written
sentences).
      Although Morales contends the oral pronouncement conflicts with the
written sentence, our court has, on similar facts, rejected an identical claim as
to the same special condition requiring surrender. See Vasquez-Puente, 922
F.3d at 703–04.      Just as here, the district court’s oral pronouncement in
Vasquez-Puente did not include the surrender condition, but it was included in
the subsequent written judgment, following the same Southern District of
Texas’ Standing General Order No. 2017-01. See id. at 702–03. Unlike here,
defendant’s presentence investigation report (PSR) failed to include the
“specific conditions” at issue. Id. at 702.
      The special condition nonetheless did “not obviously ‘conflict’ with the
district court’s oral pronouncement”; it created, instead, an ambiguity. Id. at



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                                   No. 18-20788

704. The sentencing district court warned defendant, inter alia, he could not
legally be present in the United States because he had previously been
deported. Id. at 705. Because the district court’s intent, as revealed in the
record, was that “[he] be deported after serving his prison term”, which was
“consistent” with the special condition, the court had not abused its discretion.
Id. at 704–05; see also United States v. Vasquez-Ruiz, 702 F. App’x 241, 243
(5th Cir. 2017) (holding no conflict between special surrender condition and
oral sentence because special condition was “clearly consistent with the district
court’s intent”, where sentencing district court “specifically stated”, inter alia,
defendant was “going to get deported”).
        Because the record in this case is similarly clear that the district court
intended Morales be deported following his prison term, the oral and written
pronouncements do not conflict. At sentencing, the district court stated, inter
alia:     “I assume he’ll be immediately deported” upon release from
incarceration; and, “When he’s deported from the United States, he needs to
remain outside of the country unless legally authorized to reenter”. These
statements show the district court intended he be deported following his
incarceration, consistent with our court’s holding in Vasquez-Puente.
        AFFIRMED.




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