     Case: 10-51209     Document: 00511652984         Page: 1     Date Filed: 11/02/2011




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

                                                                            FILED
                                                                         November 2, 2011

                                     No. 10-51209                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee

v.

FRANCISCO ROSALES,


                                                  Defendant-Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-115-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Francisco Rosales pled guilty in the United States District Court for the
Western District of Texas to a conspiracy to distribute methamphetamine. He
was sentenced to 288 months imprisonment and ten years of supervised release.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51209    Document: 00511652984      Page: 2   Date Filed: 11/02/2011



                                  No. 10-51209

Rosales waived his right to appeal, with certain exceptions. His retained counsel
filed a notice of appeal at Rosales’s request and also moved to withdraw. He was
allowed to withdraw and new counsel was appointed. That attorney filed an
Anders brief. See Anders v. California, 386 U.S. 738 (1967); United States v.
Flores, 632 F.3d 229 (5th Cir. 2011). The brief states the government will seek
to enforce the appeal waiver. Rosales filed a response to the Anders brief.
      Having reviewed the Anders brief, Rosales’s response, and the record, we
agree with counsel that Rosales has no non-frivolous issues to present on appeal.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities in this case, and the APPEAL IS
DISMISSED. See 5th Cir. R. 42.2.
      The record, though, reflects a clerical error in the judgment. Where there
is a conflict between a written sentence and an oral pronouncement, the oral
pronouncement controls. See United States v. Torres-Aguilar, 352 F.3d 934, 935
(5th Cir. 2003). At sentencing, the district judge orally advised Rosales that
during the period of supervised release “[y]ou shall not travel south of Interstate
10 in the state of California, nor shall you travel in the District of – the Tucson
Division of the District of Arizona; Las Cruces Division of the District of New
Mexico; or the El Paso, Pecos, or Del Rio Divisions of the Western District of
Texas without permission of your probation officer.”
      The language of the written judgment is slightly different. It states that
Rosales “shall not be permitted to travel or reside in the Pecos, Del Rio, or El
Paso Divisions of the Western District of Texas, or South of I-10 in California,
Tucson, Arizona, or Las Cruces, New Mexico, during the term of supervision.”
The judgment does not but should reflect the probation officer’s ability to provide
permission to travel as stated at sentencing. Clerical errors such as this may be
corrected by the district court. See Fed. R. Crim. P. 36.
      We REMAND for a correction of the judgment.

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