     Case: 10-10606 Document: 00511440984 Page: 1 Date Filed: 04/11/2011




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

                                                 FILED
                                                                            April 11, 2011
                                     No. 10-10606
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS SANDOVAL,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CR-25-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Counsel appointed to represent Jesus Sandoval has moved for leave to
withdraw and has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967). Our review of the record reveals a nonfrivolous issue for appeal,
specifically whether the case should be remanded to the district court for
correction of the judgment in light of the conflict between the oral
pronouncement at sentencing and the written judgment. At sentencing the
district court stated that Sandoval’s 324-month term of imprisonment would run

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10606 Document: 00511440984 Page: 2 Date Filed: 04/11/2011

                                  No. 10-10606

concurrently with any state imposed by the state court based on the same
conduct as that involved in the instant case. The court further stated that
Sandoval’s sentence would be followed by a five-year term of supervised release.
However, the written judgment reflects that the sentence is to run consecutively
to any sentence imposed in Dallas County Case No. F-0958988 and that
Sandoval must serve a life term of supervised release.
      Although normally issues raised for the first time on appeal are reviewable
only for plain error, review of the issue of the discrepancy between the oral
pronouncement of sentence and the written judgment is not limited to plain
error because Sandoval did not have the opportunity to object to the written
judgment at sentencing. See United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006). “[I]t is well settled law that where there is any variation between the
oral and written pronouncements of sentence, the oral sentence prevails.”
United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir. 1991). The discrepancy
between the oral pronouncement of sentence and the written judgment appears
to constitute a conflict, rather than an ambiguity. Cf. United States v. Martinez,
250 F.3d 941, 942 (5th Cir. 2001). When there has been a conflict between the
oral pronouncement of sentence and the written judgment, the court has
remanded the case to the district court to have it amend the written judgment
to conform to its oral judgment at sentencing. See id.; see also United States v.
Wheeler, 322 F.3d 823, 828 (5th Cir. 2003).
      Appointed counsel does not address in his brief the conflicting statements
in the oral pronouncement and the written judgment regarding the term of
supervised release or the concurrent or consecutive nature of the sentence and
states in his brief that Sandoval received a five-year term of supervised release.
Because the court’s precedent holds that oral pronouncements prevail and there
is a serious discrepancy between the oral and written judgments, there is a
nonfrivolous issue for appeal. Shaw, 920 F.2d at 1231.



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                                  No. 10-10606

      Counsel’s motion to withdraw is DENIED without prejudice and, in the
interest of judicial economy, the case is REMANDED to the district court to have
it correct its written judgment so that it will be in accordance with its oral
pronouncement at sentencing and to have the corrected judgment filed in the
record. This court will retain jurisdiction over the appeal, and upon the district
court’s compliance with the court’s order, appointed counsel is to file a new
appellate brief or a new Anders brief as is warranted.
      Sandoval’s motion for the appointment of new counsel should be held
pending the district court’s correction of the record.




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