     Case: 11-10954        Document: 00512020308           Page: 1   Date Filed: 10/15/2012




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

                                                                               FILED
                                                                             October 15, 2012
                                          No. 11-10954
                                        Summary Calendar                      Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee

v.

JOSE ERNESTO ESCOBEDO-ZAPATA,

                                                        Defendant-Appellant

-----------------------------------------------------
        Consolidated with 11-10970

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee

v.

JOSE GUADALUPE GUEVARA-CASTRO,

                                                        Defendant-Appellant


                      Appeals from the United States District Court
                           for the Northern District of Texas
                                 USDC No. 6:11-CR-16-1
   Case: 11-10954       Document: 00512020308         Page: 2     Date Filed: 10/15/2012

                            No. 11-10954 c/w No. 11-10970

Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       In separate proceedings, Jose Ernesto Escobedo-Zapata and Jose
Guadalupe Guevara-Castro each pleaded guilty to illegal reentry after
deportation and were each sentenced to 24 months of imprisonment and one
year of supervised release. In this consolidated appeal, the appellants raise the
same two challenges to their sentences.
       In their first challenge, they argue that the district court erred by
imposing two special conditions of supervised release that were not mentioned
during the oral pronouncements of their sentences. In the written judgments,
the following special conditions were included: (1) “upon completion of his term
of imprisonment, the defendant is to be surrendered to a duly-authorized
immigration official for deportation in accordance with the established
procedures provided by the Immigration and Nationality Act”; and (2) in relation
to the approved drug treatment program, “[t]he defendant shall abstain from the
use of alcohol and/or all other intoxicants during and after completion of
treatment.” We review the imposition of a special condition for an abuse of
discretion. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
       As conceded by the Government, the deportation condition in the written
judgment conflicts with the oral pronouncement of sentence and therefore must
be removed from the written judgment. See United States v. Rodriguez-Barajas,
No. 11-10545, 2012 WL 3176219, at *1 (5th Cir. Aug. 6, 2012) (unpublished);
United States v. Cruz-Nagera, 454 F. App’x 371, 372 (5th Cir. 2011). However,
the district court expressly orally ordered each defendant to participate in a
drug/alcohol dependency program. Thus, pursuant to Rodriguez-Barajas, 2012
WL 3176219, at *1, the abstinence conditions may remain because the


       *
         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.

                                              2
   Case: 11-10954   Document: 00512020308     Page: 3   Date Filed: 10/15/2012

                        No. 11-10954 c/w No. 11-10970

appellants’ history of alcohol and/or drug abuse substantiates the abstinence
condition in each case and the written condition flows from the orally ordered
condition.
      In their second argument, the appellants contend that the upward
variances to the statutory maximum terms of imprisonment obviated the
adjustments for acceptance of responsibility and accordingly circumvented the
congressional intent underlying those adjustments. When reviewing an upward
variance, the ultimate question is whether the extent of the variance was an
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). This court
recently rejected the identical argument in United States v. Castillo-Garcia, 469
F. App’x 389, 391-93 (5th Cir. 2012).        Moreover, neither appellant has
demonstrated that his sentence was substantively unreasonable. See Gall, 552
U.S. at 51.
      Accordingly, we MODIFY the judgments of conviction to excise the
provisions requiring each appellant “to be surrendered to a duly-authorized
immigration official for deportation” and AFFIRM the judgments of conviction
and sentence as modified.




                                       3
