     Case: 18-50668      Document: 00514987508         Page: 1    Date Filed: 06/07/2019




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

                                                                                FILED
                                    No. 18-50668                             June 7, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DIEGO SANTOS-FERRUFINO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-64-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Diego Santos-Ferrufino was convicted of one charge of illegal reentry and
sentenced to serve 21 months in prison and a three-year term of supervised
release. In the sole issue he presents on appeal, he argues that there is a
conflict between the oral pronouncement of sentence and the written judgment,
as the former unconditionally waives the mandatory condition of supervised




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50668   Document: 00514987508        Page: 2   Date Filed: 06/07/2019


                                No. 18-50668

release requiring drug testing, while the latter conditions this waiver on his
deportation.
      The Government argues that this issue is not ripe. This argument is
unavailing because Santos-Ferrufino is not challenging the drug testing
condition itself but instead argues that the discrepancy between the oral
pronouncement of sentence and the written judgment infringes on his
constitutional right to be present at sentencing. Thus, the injury complained
of has occurred, and the claim is ripe for adjudication. See United States v.
Magana, 837 F.3d 457, 459 (5th Cir. 2016).
      A defendant has a constitutional right to be present at sentencing.
United States v. Rivas-Estrada, 906 F.3d 346, 350 (5th Cir. 2018). Thus, when
there is a conflict between the court’s oral pronouncement of sentence and the
written judgment, the oral controls.       Id.   When considering the question
whether there is a conflict between the two or an ambiguity, we ask whether
the written judgment broadens the conditions of release and thus makes it
more burdensome. United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006).
      Here, the written judgment’s requirement that Santos-Ferrufino submit
to drug testing if he is not deported is more burdensome that the oral
pronouncement and gives rise to a conflict. See id. Accordingly, we VACATE
the judgment and REMAND to the district court with instructions to amend
the written judgment to conform it to the oral pronouncement of sentence.




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