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

                                                FILED
                                                                June 30, 2009
                               No. 08-50728
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JIM NATHAN MIKEL

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 1:04-CR-71-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Jim Nathan Mikel appeals the sentence imposed following the revocation
of his supervised release. At the revocation hearing, the district court orally
pronounced a sentence of 24 months of imprisonment, to be followed by a 48-
month term of supervised release. The written order that followed, however,
stated a three-year term of supervised release.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-50728

      Where a conflict exists between an oral pronouncement and a written
sentence, that conflict is resolved in favor of the oral sentence.1 The 48-month
term of supervised release imposed by the district court in the instant case,
however, is above the maximum permitted by statute.2 The 48-month term of
supervised release is thus plain error.3
      The record indicates that on remand the district court would likely impose
the maximum term of supervised release, three years, which its written order
has already attempted to impose. In the written order, issued after the oral
pronouncement of sentence, the district court set out a three-year term of
supervised release, suggesting that the district court realized the error.
Moreover, at sentencing, the district court stated that it was “going to give
[Mikel] as much help as I can to keep [him] off the drugs[,]” suggesting that the
court intended to provide as much continued guidance to Mikel as possible in
Mikel’s efforts to discontinue his illegal drug use. Because the district court
would most likely impose the same term of supervised release on remand, the
Government’s motion to modify the term of supervised release and summarily
affirm is GRANTED, the term of supervised release is hereby MODIFIED to a
term of three years, and the judgment of the district court is AFFIRMED AS




      1
          U.S. v. Mireles, 471 F.3d 551, 557-58 (5th Cir. 2006) (citations omitted).
      2
        See 18 U.S.C. § 1343 (setting maximum term of 30 years of imprisonment
for offense of fraud by wire, radio, or television); 18 U.S.C. § 3559(a)(2)
(classifying as a Class B felony an offense for which the maximum term of
imprisonment is 25 years or more); 18 U.S.C. § 3583(h) (providing that the
available term of supervised release following revocation is the original
permissible term of supervised release—five years—minus the term of
imprisonment imposed upon revocation—24 months).
      3
          See U.S. v. Rodriguez-Martinez, 329 F.3d 419, 420 (5th Cir. 2003).

                                          2
                                   No. 08-50728

MODIFIED.4 The Government’s alternative motion for an extension of time to
file appellee’s brief is DENIED.




      4
          See id. at 420.

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