United States v. Gonzalez-Hernandez ( 2022 )

Case: 21-40180 Document: 00516180780 Page: 1 Date Filed: 01/26/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 26, 2022
No. 21-40180 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Adolfo Gonzalez-Hernandez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-1028-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Adolfo Gonzalez-Hernandez pleaded guilty to conspiracy to possess
with intent to distribute 40.20 grams of cocaine and was sentenced to 120
months of imprisonment and five years of supervised release. He contends
that the district court’s oral pronouncement, ordering him to report to the
*
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opinion should not be published and is not precedent except under the limited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: 21-40180 Document: 00516180780 Page: 2 Date Filed: 01/26/2022
No. 21-40180
Probation Office within 72 hours after returning to the United States,
conflicts with the written judgment, which he contends requires him to
report to the Probation Office immediately upon returning to the United
States.
“Where there is an actual conflict between the district court’s oral
pronouncement of sentence and the written judgment, the oral
pronouncement controls.” United States v. Mireles, 471 F.3d 551, 557 (5th
Cir. 2006). A conflict arises when the written judgment imposes more
burdensome conditions or broadens the restrictions or requirements of the
orally pronounced conditions. Id. at 558; United States v. Bigelow, 462 F.3d
378, 383 (5th Cir. 2006). Because Gonzalez-Hernandez had no opportunity
to object, our review is for abuse of discretion. See United States v. Grogan,
977 F.3d 348, 352 (5th Cir. 2020). Here, the written judgment’s requirement
that Gonzalez-Hernandez report upon returning to the United States is more
burdensome than the requirement announced at sentencing that provided a
72-hour period for reporting.
Accordingly, the judgment of the district court is VACATED in part,
and the matter is REMANDED to the district court for the limited purpose
of conforming the written judgment with the oral pronouncement of
sentence.
2