     Case: 17-40900      Document: 00514846922         Page: 1    Date Filed: 02/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                    United States Court of Appeals

                                    No. 17-40900
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                  February 22, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff–Appellee,

v.

JOHNATHAN RICARDO ALVAREZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:17-CR-436-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Johnathan Ricardo Alvarez appeals the 200-month sentence imposed
following his guilty plea conviction of possession with intent to distribute 500
grams or more, that is, 5 kilograms of methamphetamine, in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(A). Alvarez challenges his sentence
by arguing that the district court reversibly erred by determining that he
qualified for a two-level adjustment under U.S.S.G. § 3B1.1(c) (2016) due to his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40900

role in the offense. He also argues that this court should vacate and remand
for entry of an amended judgment because the written judgment conflicts with
the oral pronouncement of sentencing by including special conditions of
supervised release that were not orally pronounced by the district court.
Offense Role Adjustment
      This court reviews a district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States
v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015).               Guideline § 3B1.1(c)
provides for a two-level increase if the defendant was an organizer, leader,
manager, or supervisor in criminal activity. § 3B1.1(c).
      Alvarez is correct that the commentary language indicates that the two-
level “adjustment” set forth in § 3B1.1(c) applies where the defendant exercises
control over participants, but a “departure” is warranted where the defendant
exercises control over property, assets, or activities of a criminal organization.
§ 3B1.1 cmt. n.2. In United States v. Delgado, 672 F.3d 320, 344–45 (5th Cir.
2012), this court recognized that § 3B1.1 Application Note 2 provides an
alternative basis for imposing the adjustment and affirmed the application of
the two-level adjustment after finding no clear error in the determination that
Delgado had exercised management responsibility over the property and
activities of a drug trafficking ring.
      This court has followed and applied Delgado’s interpretation of § 3B1.1
Application Note 2, and this panel remains bound by Delgado. 1 See Ochoa-
Gomez, 777 F.3d at 283–84; United States v. Traxler, 764 F.3d 486, 489 (5th
Cir. 2014); United States v. Junius, 739 F.3d 193, 208–09 (5th Cir. 2013). Thus,


      1  We note that members of the court have urged en banc review of Delgado because it
“conflated an ‘adjustment’ and an ‘upward departure’ for purposes of Application Note 2 to
[§ 3B1.1].” Ochoa-Gomez, 777 F.3d at 284–85 (Prado and Elrod, JJ., concurring). But
Delgado remains the law of the circuit.


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in accordance with Delgado, 672 F.3d at 344–45, “a § 3B1.1 adjustment may
be based on either control over people or management of assets.” Ochoa-
Gomez, 777 F.3d at 283.
      Although Alvarez objected to the adjustment, he did not provide evidence
to refute the facts set forth in the PSR. The district court was therefore free to
adopt the PSR, see United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th Cir.
2017), which establishes that Alvarez was involved in coordinating the sale of
drugs, including their price, confirming the deal, and putting an undercover
agent in touch with a courier. The significance of Alvarez’s role is evidenced
by his repeated attempts to reach the undercover agent after his co-defendants
were arrested, his threat that someone would pay as a result of the lost drugs,
and his indication that he had to go to Mexico to explain the loss of the load to
unidentified coconspirators. Therefore, the district court’s decision to apply
§ 3B1.1(c) is plausible due to either Alvarez’s “control over another
participant,” or his “management responsibility over property, assets, or
activities.” See § 3B1.1(c) cmt. n.2; Ochoa-Gomez, 777 F.3d at 282–83; Delgado,
672 F.3d at 344–45.
Supervised Release Conditions
      At the sentencing hearing, the district court indicated that it was
imposing the standard conditions that had been adopted by the court, a
prohibition on the possession of firearms, and an obligation to cooperate in
DNA sampling. The district court did not state that it was imposing special
conditions of supervised release, nor did the district court state that it was
imposing immigration-related conditions. However, in the written judgment,
the district court set forth immigration-related special conditions of
supervision. For purposes of the instant analysis the challenged conditions are
numbered as follows:



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                                 No. 17-40900

            (1) You must surrender to U.S. Immigration and Customs
      Enforcement and follow all their instructions and reporting
      requirements until any deportation proceedings are completed;
            (2) If you are ordered deported from the United States, you
      must remain outside the United States unless legally authorized
      to reenter;
           (3) If you reenter the United States, you must report to the
      nearest probation office within 72 hours after you return; and
            (4) You must seek proper documentation from U.S.
      Immigration and Customs Enforcement authorizing you to work
      in the United States.
      These conditions are included in General Order No. 2017-01 of the
Southern District of Texas as special conditions that the district court has
discretion to apply at sentencing. See In re Conditions of Prob. and Supervised
Release, Gen. Order No. 2017-01 (S.D. Tex. Jan. 6, 2017). At the sentencing
hearing the district court did not indicate that it was imposing the special
conditions set forth in General Order No. 2017-01. Also, although conditions
(1)-(4) are set forth in an appendix to the PSR, the district court at the
sentencing hearing did not reference the list of conditions in the PSR. See
United States v. Cox, 672 F. App’x 517, 519 (5th Cir. 2017). Because Alvarez
had no opportunity at sentencing to object to the challenged conditions, this
court will apply the abuse of discretion standard. See United States v. Bigelow,
462 F.3d 378, 381 (5th Cir. 2006); United States v. Vasquez-Ruiz, 702 F. App’x
241 (5th Cir. 2017).
      Conditions (1), (3), and (4) impermissibly conflict with the oral
pronouncement of sentence. See Bigelow, 462 F.3d at 380–81; United States
v. Cepeda-Olguin, 736 F. App’x 489, 490–91 (5th Cir. 2018); United States
v. Saldano-Cordero, 735 F. App’x 134, 135 (5th Cir. 2018); see also Ballard
v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (providing that “[a]n
unpublished opinion issued after January 1, 1996 is not controlling precedent,


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but may be persuasive authority”); 5TH CIR. R. 47.5.4. Condition (2) does not
create a conflict with the district court’s oral pronouncement because it is
duplicative of the mandatory condition that Alvarez is prohibited from
violating the law if and when he reenters the United States. See United States
v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003); United States v. Guillen-
Cruz, 670 F. App’x 361, 362 (5th Cir. 2016).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED in part and VACATED in part. We REMAND the case to the
district court for the limited purpose of amending the written judgment to
excise conditions (1), (3), and (4), as set forth above.




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