     Case: 13-40681      Document: 00512768771         Page: 1    Date Filed: 09/15/2014




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

                                                                                   FILED
                                                                             September 15, 2014
                                    No. 13-40681
                                                                                Lyle W. Cayce
                                  Summary Calendar
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELIAS FIDEL VEGA, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-841-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Elias Fidel Vega, Jr., appeals the conditions of supervised release
imposed for his offenses of possession of firearms by a convicted felon, illegal
possession of a machine gun, and possession of unregistered firearms. He
contends that the written conditions requiring him to provide his probation
officer with access to his financial information and prohibiting him from
incurring new credit charges or opening additional lines of credit without prior


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-40681

approval should be stricken from the judgment because they conflict with the
oral pronouncement of his sentence. He also challenges the two conditions on
grounds that they are not reasonably related to the applicable 18 U.S.C.
§ 3553(a) factors and that they involve a greater deprivation of liberty than
necessary to effectuate the sentencing goals. He argues that the conditions are
unrelated to his firearm offenses and prior convictions. Because the district
court did not announce the conditions at sentencing and Vega had no
opportunity to object, we review for abuse of discretion. See United States v.
Mudd, 685 F.3d 473, 480 (5th Cir. 2012); United States v. Warden, 291 F.3d
363, 364-65 & n.1 (5th Cir. 2002).
      The conditions at issue are not mandatory conditions required by
18 U.S.C. § 3583(d) or standard conditions of supervised release in the
Southern District of Texas. However, the policy statement in United States
Sentencing Guidelines § 5D1.3(d) recommends including a condition requiring
the defendant to provide access to any requested financial information “[i]f the
court . . . orders the defendant to pay a fine.” § 5D1.3(d)(3) (p.s.). Because the
district court ordered Vega to pay a $2,500 fine, the prerequisite for including
the condition under § 5D1.3(d)(3) was satisfied, and the district court did not
abuse its discretion by including the condition in the written judgment. See
§ 5D1.3(d)(3); United States v. Torres-Aguilar, 352 F.3d 934, 937-38 (5th Cir.
2003).
      In contrast, the circumstances of Vega’s case do not meet the express
prerequisites enumerated in § 5D1.3(d)(2) of the Sentencing Guidelines for
debt obligations, as the district court did not impose an installment schedule
for payment of the fine or limit the application of the condition to instances
when Vega is in noncompliance with any installment plan. See § 5D1.3(d)(2)
(p.s.). Therefore, imposition of the special condition requiring him to obtain



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                                 No. 13-40681

the probation officer’s approval before incurring new credit charges or opening
new lines of credit was not recommended by the Guidelines.          See Torres-
Aguilar, 352 F.3d at 937-38. Additionally, the condition actually imposed in
the written judgment is more restrictive than the condition found in
§ 5D1.3(d)(2), as it applies without regard to the defendant’s compliance with
any payment schedule. For these reasons, inclusion of this condition in the
written judgment created a conflict between the judgment and the oral
sentence, and the oral pronouncement controls. See United States v. Mudd,
685 F.3d 473, 480 (5th Cir. 2012); United States v. Bigelow, 462 F.3d 378, 383-
84 (5th Cir. 2006); Torres-Aguilar, 352 F.3d at 938. We thus remand the case
to the district court to conform the judgment to the oral sentence. In light of
this determination, we do not reach Vega’s argument that imposition of the
condition was substantively unreasonable.
      With respect to the condition requiring Vega to provide access to any
requested financial information, the record shows that it was reasonably
related to several of the relevant § 3553(a) factors. Vega’s sentence, which
included the $2,500 fine, was imposed in part to further the sentencing goals
of deterrence and protection of the public. The condition is related to ensuring
payment of the fine, see § 5D1.3(d)(3), thus effectuating those goals.
Additionally, Vega’s violent offense conduct apparently stemmed from a
dispute over a heroin transaction, and the district court concluded that the
evidence suggested that he was a drug dealer.        Although Vega had been
without a job for several years, police seized large sums of cash from his home.
Allowing the probation officer to access Vega’s financial information will help
the officer to monitor whether Vega obtains legitimate employment and to
detect if he begins to obtain funds illegally, thereby deterring further criminal
conduct and protecting the public. See United States v. Behler, 187 F.3d 772,



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780 (8th Cir. 1999) (affirming imposition of condition requiring access to
financial information where district court “believed that monitoring [the
defendant’s] financial situation would aid in detecting any return to his former
lifestyle of drug distribution”).    Although Vega asserts that the condition
imposes a greater deprivation of liberty than is necessary to advance the goals
of deterrence and protecting the public, he offers no explanation of any liberty
interest that will be impinged or any legal activities that will be affected. We
defer to the district court’s determination that it was an appropriate condition
of supervised release. See United States v. Rodriguez, 558 F.3d 408, 412 & n.3
(5th Cir. 2009); United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009).
      Vega’s conviction is AFFIRMED. The sentence is VACATED in part and
the case REMANDED to the district court to conform the written judgment
consistent with this opinion.




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