     Case: 16-40446      Document: 00514017409         Page: 1    Date Filed: 06/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                    No. 16-40446                                   FILED
                                  Summary Calendar                               June 2, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                   Clerk


                                                 Plaintiff-Appellee

v.

FABIAN GONZALEZ-LOYA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-126-2


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Fabian Gonzalez-Loya was convicted of conspiring to possess with intent
to distribute 500 grams or more of a mixture or substance containing a
detectable    amount      of   methamphetamine         or   50    grams     or     more          of
methamphetamine (actual) in violation of 21 U.S.C. §§ 841(a)(1) and 846. We
affirmed his conviction but vacated his sentence and remanded the case for
resentencing holding that in light of Alleyne v. United States, 133 S. Ct. 2151


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40446     Document: 00514017409     Page: 2   Date Filed: 06/02/2017


                                  No. 16-40446

(2013), and circuit precedent, “the district court’s application of a 10 year
statutory minimum sentence under . . . § 841(b)(1)(A) was clear error.” United
States v. Gonzalez-Loya, 639 F. App’x 1023, 1027 (5th Cir. 2016).
      Gonzalez-Loya now appeals the district court’s imposition of a special
condition of supervised release that was not orally pronounced at resentencing
but was included in the amended judgment. Because the alleged error—the
violation of Gonzalez-Loya’s constitutional right to be present at sentencing—
did not exist at the time of Gonzalez-Loya’s first sentencing and could not have
been raised in his original appeal, the law-of-the-case doctrine and mandate
rule do not preclude our review of this issue. See United States v. Lee, 358 F.3d
315, 320-21 (5th Cir. 2004); United States v. Marmolejo, 139 F.3d 528, 531 (5th
Cir. 1998).
      The financial disclosure condition is not a mandatory or standard
condition of supervised release. See 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a),
(c) (p.s.); Eastern District of Texas Conditions of Supervision. Further, the
financial disclosure condition is not recommended by the Sentencing
Guidelines in Gonzalez-Loya’s case because the district court did not impose
an order of restitution, forfeiture, notice to victims, or fine. See § 5D1.3(d)(3)
(p.s.); cf. United States v. Torres-Aguilar, 352 F.3d 934, 937-38 (5th Cir. 2003).
Because the amended judgment contains a special condition of supervised
release that was not in the oral pronouncement of sentence, a conflict exists,
and the case must be remanded for the district court to amend the written
judgment to conform to the oral sentence by deleting the financial disclosure
special condition. See United States v. Wheeler, 322 F.3d 823, 828 (5th Cir.
2003).
      Gonzalez-Loya also contends that the case should be remanded to the
district court for the correction of a clerical error in the amended judgment.



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    Case: 16-40446      Document: 00514017409   Page: 3   Date Filed: 06/02/2017


                                 No. 16-40446

The amended judgment incorrectly states that Gonzalez-Loya was sentenced
under § 841(b)(1)(A).    See Gonzalez-Loya, 639 F. App’x at 1027-28.        The
judgment must be corrected to reflect that Gonzalez-Loya was sentenced under
§ 841(b)(1)(B). See FED. R. CRIM. P. 36; United States v. Johnson, 588 F.2d 961,
964 (5th Cir. 1979).
      Accordingly, we REMAND for amendment of the written judgment to
conform to the oral pronouncement and correct the clerical error.




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