United States v. Mendez-Del Toro ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-40513
Summary Calendar
Civil Docket #M-01-CR-51-1
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE ALBERTO MENDEZ-DEL TORO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 27, 2001
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Both Mendez-Del Toro and the Government urge us to remand
for resentencing of this appellant, who pleaded guilty to illegal
reentry following deportation, on the ground that the district
court’s oral pronouncement of judgment differs from its subsequent
written judgment. The only discrepancy is that the district court
orally forgot to inform Mendez of the mandatory $100 special
assessment for this felony offense. 18 U.S.C. § 3013(a)(2)(A).
*
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opinion should not be published and is not precedent except under the limited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.
We sympathize with the parties’ reasoning, because
ordinarily, the oral pronouncement of judgment controls over a
conflicting written sentence. United States v. Martinez, 250 F.3d
941, 942 (5th Cir. 2001). Further, as the government observes, it
might well be inclined to seek remission of the special assessment
because of his indigent, alien status. See 18 U.S.C. § 3573. A
remand could not, however, be squared with the decision in which
this court, noting the mandatory nature of special assessments
under section 3013, forbade a district court’s decision not to
impose the assessment. See United States v. Nguyen, 916 F.2d 1016,
1020 (5th Cir. 1990). This court went on to modify the district
court’s judgment by imposing special assessments on each of the
appellant’s two convictions. If this court can modify a district
court’s criminal judgment by imposing a special assessment outside
of a defendant’s presence, it would seem to follow that the
district court’s modification of the written judgment outside a
defendant’s presence to include the mandatory special assessment
cannot be faulty. Thus, any variance between the district court’s
oral pronouncement of sentence and its subsequent written judgment
appears to have been harmless error.
The government may, of course, exercise its option to
seek remission pursuant to 18 U.S.C. § 3573.
AFFIRMED.
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