     Case: 16-41289      Document: 00514023746         Page: 1    Date Filed: 06/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-41289
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 7, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JUAN TREVINO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 1:15-CR-1006-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Juan Trevino pleaded guilty to possession with
intent to distribute more than 50 kilograms of methamphetamine and was
sentenced as a career offender to 262 months of imprisonment and five years
of supervised release. On appeal, he challenges only his sentence, claiming
that (1) the district court erred by applying the career offender enhancement
under U.S.S.G. § 4B1.1(a), and (2) there is a conflict between the special


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41289

condition of supervised release in the written judgment and the special
condition pronounced by the district court at sentencing.
      We review a district court’s interpretation or application of the
Sentencing Guidelines de novo. We review its factual findings for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      A defendant is classified as a career offender under § 4B1.1 if, after the
age of eighteen, he commits a “felony that is either a crime of violence or a
controlled substance offense” and he “has at least two prior felony convictions
of either a crime of violence or a controlled substance offense.” § 4B1.1(a). A
defendant has two prior felony convictions for purposes of the career offender
guideline when, as relevant here, he committed the offense for which he is
being sentenced “subsequent to sustaining at least two felony convictions
of . . . a crime of violence” and “the sentences for at least two of the
aforementioned felony convictions are counted separately under the provisions
of [U.S.S.G.] § 4A1.1(a), (b), or (c).” § 4B1.2(c).
      Trevino’s sole challenge to the career-offender enhancement at issue
here is that his robbery sentences should not and could not have been counted
separately, as provided under § 4A1.2(a)(2), because those sentences ran
concurrently and were entered and imposed on the same date. However, even
though both state court judgments are stamped March 15, 2008, those
judgments clearly show that Trevino’s prior sentences were imposed on
different days. Thus, the district court did not err in applying the § 4B1.1
enhancement.
      We agree, however, with Trevino’s contention that there is a conflict
between the court’s written judgment and its oral pronouncement. The district
court pronounced the special condition that, “[w]hile on supervised release,”
Trevino is “required to perform 50 hours of community service.” The written



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                                No. 16-41289

judgment contains the special condition that Trevino “shall perform 50 hours
of community service as approved by the probation officer to be completed
within the first 12 months of the supervised release term.”
      The inclusion in the written judgment of the special condition that
Trevino perform the 50 hours of community service within the first 12 months
of supervised release, creates a conflict, and not merely an ambiguity, between
the oral pronouncement of sentence and the written judgment. See United
States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003); United States v. Torres-
Aguilar, 352 F.3d 934, 936 (5th Cir. 2003). We therefore vacate the sentence
in part and remand with instructions to the district court to modify, in a
manner consistent with this opinion, the special condition in the written
judgment to conform to its oral pronouncement.
      SENTENCE AFFIRMED IN PART, VACATED IN PART; REMANDED
WITH INSTRUCTIONS.




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