     Case: 12-40541       Document: 00512363969         Page: 1     Date Filed: 09/05/2013




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

                                                                            FILED
                                                                        September 5, 2013
                                    No. 12-40541
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO HERNANDEZ, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1746-1


Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Sergio Hernandez, Jr., appeals a portion of the
sentence imposed after he pleaded guilty to being a felon in possession of a
firearm. He contends that a special condition of supervised release imposing
drug treatment and testing must be deleted from the written judgment because
it was not part of the sentence announced orally in court.
      “A defendant has a constitutional right to be present at sentencing.”
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). Therefore, when a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40541    Document: 00512363969     Page: 2   Date Filed: 09/05/2013

                                 No. 12-40541

conflict exists between a sentence pronounced orally in court and a later written
judgment, the oral pronouncement controls. United States v. Torres-Aguilar, 352
F.3d 934, 935 (5th Cir. 2003). “Standard” conditions of supervised release need
not be announced orally, but when, as here, a written judgment contains a
“special” condition of supervised release that was not contained in the oral
pronouncement of sentence, the written judgment must be reformed by deleting
the special condition. Id. at 936; Martinez, 250 F.3d at 942. Although we
ordinarily review for abuse of discretion, see United States v. Bigelow, 462 F.3d
378, 381 (5th Cir. 2006), Hernandez suggests our review should be de novo. We
need not address that contention, however, Hernandez prevails und either
standard.
      The government relies on Torres-Aguilar to argue that the written drug-
treatment condition is “recommended by the Sentencing Guidelines [and thus]
does not create a conflict with the oral pronouncement.” Torres-Aguilar, 352
F.3d at 938. Unlike the objective and undisputed factors relevant to imposing
the dangerous-weapon prohibition in Torres-Aguilar, however, the subjective
factors relevant to imposing the drug-treatment condition here are “not so clear
as to transform” this special condition into a standard condition. Bigelow, 462
F.3d at 382.
      Hernandez’s conviction is AFFIRMED; his sentence is VACATED in
PART; and this matter is REMANDED to the district court with instructions to
conform the written judgment to the oral pronouncement at sentencing,
consistent with this opinion.




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