United States v. Rodolfo Saldana-Cordero ( 2018 )

Case: 18-20061 Document: 00514605160 Page: 1 Date Filed: 08/17/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20061 August 17, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RODOLFO SALDANA-CORDERO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-549-1
Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Rodolfo Saldana-
Cordero on appeal has filed a motion to withdraw and a brief that relies on
Anders v. California, 386 U.S. 738 (1967). Saldana-Cordero has not filed a
response. A review of counsel’s brief and the record reveals the following
nonfrivolous appellate issue: whether there is a conflict with respect to a
special condition of supervised release requiring Saldana-Cordero to seek
documentation authorizing him to work in the United States that is included
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20061 Document: 00514605160 Page: 2 Date Filed: 08/17/2018
No. 18-20061
in the written judgment but was not orally pronounced by the district court at
sentencing.
Generally, because a defendant has no opportunity at sentencing to
object to a special condition of supervised release later imposed in the written
judgment, this court reviews the issue for abuse of discretion. See United
States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). As a result of a defendant’s
constitutional right to be present at sentencing, the oral pronouncement of
sentence controls over the written judgment where there is a conflict between
the two. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001);
accord United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). “If
the written judgment broadens the restrictions or requirements of supervised
release from an oral pronouncement, a conflict exists,” and “the appropriate
remedy is remand to the district court to amend the written judgment to
conform to the oral sentence.” United States v. Mireles, 471 F.3d 551, 558 (5th
Cir. 2006). There is no conflict if the judgment includes supervised release
conditions that are mandatory, standard, or recommended by the Sentencing
Guidelines, even if the conditions were not orally pronounced at sentencing.
See Torres-Aguilar, 352 F.3d at 938. However, a conflict exists if there is a
special condition of supervised release that was not included in the oral
pronouncement of sentence. See id. at 936.
Counsel acknowledges the discrepancy between the oral pronouncement
of sentence and the written judgment in this case, but we are not persuaded
that the issue is frivolous or that the discrepancy is a mere clerical error rather
than an actual conflict. See United States v. Buendia-Rangel, 553 F.3d 378,
379 (5th Cir. 2008); United States v. Slanina, 359 F.3d 356, 357-58 (5th Cir.
2004). In light of the foregoing, we conclude that there is a nonfrivolous issue
for appeal.
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Case: 18-20061 Document: 00514605160 Page: 3 Date Filed: 08/17/2018
No. 18-20061
We therefore DENY the motion to withdraw without prejudice and, in
the interest of judicial economy, REMAND to the district court with
instructions to amend the written judgment to conform to the oral sentence
and to have the amended judgment filed in the record in this appeal. We retain
jurisdiction over this appeal, and upon the district court’s amendment of the
judgment, counsel shall file a new appellate brief or a new Anders brief as is
warranted.
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