United States v. Romana-Calderon ( 2022 )

Case: 21-50806 Document: 00516558691 Page: 1 Date Filed: 11/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 28, 2022
No. 21-50806 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Cruz Angel Romana-Calderon,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:21-CR-576
Before Smith, Barksdale, and Haynes, Circuit Judges.
Per Curiam:*
Cruz Angel Romana-Calderon contends the district court violated his
right to be present at sentencing by including a special condition in its written
judgment that does not conform to its oral pronouncement at sentencing. As
explained below, we AFFIRM but REMAND to the district court to make
a slight modification.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50806 Document: 00516558691 Page: 2 Date Filed: 11/28/2022
No. 21-50806
In May 2021, Romana-Calderon, a Mexican citizen, pleaded guilty to
illegal reentry in violation of 8 U.S.C. § 1326(b)(1). In conjunction with
Romana-Calderon’s guilty plea, a probation officer prepared a presentence
report recommending an imprisonment term of 24 to 30 months. The report
also recommended a supervised release term of one to three years with
“mandatory and standard conditions” and “no special conditions.” At
Romana-Calderon’s rearraignment hearing, the magistrate judge told him his
supervised release would likely include at least two conditions: “[n]ot to
come back to the United States illegally and not to violate the laws of the
United States.” At sentencing, the district court asked if Romana-Calderon
had reviewed the presentence report with his attorney. Romana-Calderon
said that he had. He made no objections to the report. Romana-Calderon
also stated that he intended to “stay in Mexico” and would not return to the
United States.
Ultimately, the district court judge orally sentenced Romana-
Calderon to 24 months’ imprisonment followed by “two years nonreporting
supervised release.” The written judgment also included a special condition
stating that if Romana-Calderon is deported, he “must remain outside the
United States.” This provision resembles—though slightly differs—from
the language of a standard condition adopted by the Western District of
Texas which states, “If the defendant is excluded, deported, or removed
upon release on probation or supervised release . . . . The defendant shall not
illegally re-enter the United States.” Standing Order, Conditions of Probation
and Supervised Release (W.D. Tex. Nov. 28, 2016) (emphasis added).
On appeal, Romana-Calderon argues that the special condition in the
written judgment impermissibly conflicts with the sentence the district judge
orally pronounced. Specifically, he says that the district court never adopted
the presentence report which incorporated the standard conditions set by the
Western District. Moreover, even if it had, the condition in the written
2
Case: 21-50806 Document: 00516558691 Page: 3 Date Filed: 11/28/2022
No. 21-50806
judgment and the standard condition conflict. He asks this court to resolve
this conflict by remanding to the district court to amend the written judgment
to conform with the oral pronouncement.
Since Romana-Calderon alleges he did not have an opportunity to
object to the special condition imposed in the written order, we review for
abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.
2006).
Defendants have a Fifth Amendment due process right to be present
at sentencing. United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)
(per curiam); see also United States v. Diggles, 957 F.3d 551, 557 (5th Cir.
2020) (en banc). In Diggles, we explained that this right entitles defendants
to “notice of the[ir] sentence and an opportunity to object.” 957 F.3d at 560.
This opportunity does not exist when “the 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).
Therefore, in that case, the court must remand to the district court to
conform the written judgment to the oral pronouncement. Id. If, however,
the written judgment merely clarifies an ambiguity in the oral sentence, no
conflict exists. United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002). In
that instance, the court’s role is to review the record to ensure the written
judgment evidences the district court’s intent. Id. If it does, no
reconciliation is required. See id.There’s no question that Romana-Calderon had notice and an
opportunity to object to the standard condition that, if deported, he would
not illegally return to the United States. As discussed, the presentence report
incorporated the Western District’s standard condition, which states that
defendants “shall not illegally return to the United States.” While the
district court did not explicitly adopt the presentence report, it indicated its
3
Case: 21-50806 Document: 00516558691 Page: 4 Date Filed: 11/28/2022
No. 21-50806
intent to rely on it by asking Romana-Calderon whether he reviewed it with
his lawyer. Romana-Calderon affirmed that he had and did not object to the
report. In fact, he expressly stated that he had no intent to return to the
United States.
Romana-Calderon, however, argues that the version of the special
condition in the written judgment nonetheless conflicts with the district
court’s oral pronouncement because it imposes a more burdensome
restriction than the Western District’s standard condition. He contends that
the latter only prohibits “illegal[] re-ent[ry]” into the United States, while
the former—which requires him to “remain outside the United States”—
precludes him from pursuing legal forms of reentry. 1 This conflicts with his
representation to the district court that he did not intend to return to the
United States, and he certainly never expressed any desire to pursue legal
reentry at sentencing, even if such were available (which is unlikely).
In order to avoid any problem, we conclude that it is appropriate, in
the interest of justice, to modify the condition in the written judgment to
conform to the standard included in the presentence report. We therefore
REMAND to the district court with the directive to modify the condition
that “[i]f ordered deported from the United States, the defendant must
remain outside the United States” to read: “[i]f ordered deported from the
United States, the defendant may not illegally re-enter the United States.”
AFFIRMED with REMAND for modification as directed above.
1
Romana-Calderon provides one primary example: he claims the written
judgment’s special condition, unlike the Western District’s standard condition, would
prevent him from “approach[ing] a port of entry and seek[ing] permission to reenter the
United States.” This would, he says, bar him from seeking “numerous forms of
immigration relief, like requesting immigration status due to his child’s United States
citizenship, or any number of discretionary forms of immigration relief.”
4