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United States v. Mendoza-Alcasar ( 2023 )


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  • Case: 22-40179         Document: 00516652427             Page: 1      Date Filed: 02/22/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-40179
FILED
Summary Calendar                 February 22, 2023
____________
Lyle W. Cayce
United States of America,                                                 Clerk
Plaintiff—Appellee,
versus
Cuahutemoc Mendoza-Alcasar,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-946-5
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Cuahutemoc Mendoza-Alcasar appeals his sentence following his jury
trial conviction of possessing with intent to distribute five kilograms or more
of cocaine and being an alien in unlawful possession of a firearm. He
contends that there is a conflict between the oral pronouncement of his
sentence and the special conditions of supervised release in the written
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40179        Document: 00516652427              Page: 2       Date Filed: 02/22/2023
No. 22-40179
judgment. Specifically, he challenges the written judgment’s inclusion of
special conditions requiring him to: (1) report to United States Immigration
and Customs Enforcement and follow their instructions and reporting
requirements until any deportation proceedings are completed; (2) not
illegally reenter the United States; (3) report to the nearest probation office
within 72 hours of his return if he were to reenter the United States; and
(4) seek proper documentation authorizing him to work in the United States.
The Government agrees that a conflict exists with regard to the third and
fourth special conditions.1
The four special conditions were not mandated by
    18 U.S.C. § 3583
    (d), so the district court was required to pronounce them. See United
States v. Diggles,
    957 F.3d 551
    , 559 (5th Cir. 2020) (en banc). The conditions
were not included in Mendoza-Alcasar’s presentence report, orally
pronounced, or otherwise referred to at sentencing.                   Mendoza-Alcasar
therefore did not have an opportunity to object to the conditions at
sentencing, and we will review for an abuse of discretion. See
    id.
     at 559–60;
United States v. Gomez,
    960 F.3d 173
    , 179 (5th Cir. 2020).
The first and second special conditions constitute mere ambiguities
with the district court’s oral pronouncement. See United States v. Vasquez-
Puente,
    922 F.3d 700
    , 703–04 (5th Cir. 2019) (finding ambiguity rather than
conflict between oral and written sentences); see also United States v. Perez-
Espinoza,
    31 F.4th 988
    , 989 (5th Cir. 2022). For the first special condition,
the record reflects that the condition is consistent with the district court’s
intent that Mendoza-Alcasar be deported after his prison term. See Vasquez-
_____________________
1
Contrary to the Government’s argument on appeal, Mendoza-Alcasar has not
abandoned through inadequate briefing his claims of a conflict concerning the first, second,
and fourth special conditions. See Fed. R. App. P. 28(a)(8)(A); cf. United States v.
Ballard,
    779 F.2d 287
    , 295 (5th Cir. 1986).
2
Case: 22-40179        Document: 00516652427         Page: 3    Date Filed: 02/22/2023
No. 22-40179
Puente,
    922 F.3d at 
    703–05. The second special condition does not conflict
with the district court’s oral pronouncement because it merely restated the
mandatory condition that Mendoza-Alcasar not commit another federal
crime. See
    id. at 705
    . Therefore, the district court did not abuse its discretion
by including these special conditions in the written judgment. See
    id.
    As for the third and fourth special conditions on these facts, we are
persuaded by Mendoza-Alcasar’s argument and the Government’s
concession that the imposition of these conditions in the written judgment
created an impermissible conflict that constituted an abuse of discretion. See
Diggles, 957 F.3d at 560–63; United States v. Bigelow,
    462 F.3d 378
    , 383–84
(5th Cir. 2006).
Accordingly, the district court’s judgment 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
as to the third and fourth special conditions. The judgment is AFFIRMED
in all other respects.
3