     Case: 18-10707      Document: 00515162485         Page: 1    Date Filed: 10/17/2019




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

                                                                                 FILED
                                    No. 18-10707                          October 17, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WALTER YOHANY MARTINEZ VIERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-78-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Walter Yohany Martinez Viera was convicted of illegal reentry, and the
district court sentenced him to 41 months in prison to be followed by three-
years of supervised release. At sentencing, the district court advised Martinez
Viera of the mandatory and standard conditions of supervised release. The
written judgment contained a new “special” condition requiring Martinez Viera
to participate in and pay some costs associated with an inpatient or outpatient


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10707    Document: 00515162485     Page: 2   Date Filed: 10/17/2019


                                 No. 18-10707

program approved by the probation officer for the treatment of alcohol or
substance abuse. The condition also required Martinez Viera to abstain from
using alcohol or other intoxicants. Martinez Viera argues that the district
court erred in imposing, as part of its written judgment, the special condition
because the condition was not orally pronounced at sentencing.
      When, as here, a defendant has no opportunity to object to conditions of
supervised release, we review for abuse of discretion. United States v. Rivas-
Estrada, 906 F.3d 346, 348-49 (5th Cir. 2018). If there is a conflict between
the sentence imposed in court and the written judgment, the oral
pronouncement controls. Id. at 350. A conflict arises when a written judgment
“broadens the restrictions or requirements of supervised release from an oral
pronouncement.” United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006).
      The district court abused its discretion in imposing the unpronounced
special condition of supervision requiring paid participation in an alcohol and
substance abuse treatment program and abstention from alcohol and all other
intoxicants because the condition is more burdensome than the conditions
announced at sentencing. See Rivas-Estrada, 906 F.3d at 351; Mireles, 471
F.3d at 558. Although the record indicates that Martinez Viera had a history
of alcohol and drug abuse and, thus, that treatment could be recommended
under U.S.S.G. § 5D1.3(d)(4), see United States v. Torres-Aguilar, 352 F.3d 934,
936-38 (5th Cir. 2003), the written judgment form adopted by the district court,
form AO 245B, specifically lists the condition as a special rather than standard
condition and, thus, creates a conflict between the written judgment and oral
pronouncement of sentence. See Rivas-Estrada, 906 F.3d at 351; United States
v. Bigelow, 462 F.3d 378, 381-83 (5th Cir. 2006); United States v. Martinez, 250
F.3d 941, 942 (5th Cir. 2001).




                                       2
    Case: 18-10707    Document: 00515162485   Page: 3   Date Filed: 10/17/2019


                               No. 18-10707

     Accordingly, the district court’s judgment is VACATED IN PART AND
REMANDED for the district court to amend its written judgment to conform
to its oral sentence by removing the unpronounced special condition of
supervised release.




                                     3
