United States v. Jimenez ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2008
No. 06-41678 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE VICENTE JIMENEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Case No. 2:01-CR-00028
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Jose Vicente Jimenez (“Jimenez”) challenges his five-
year sentence upon revocation of his supervised release, which also included a
requirement that Jimenez register as a sex offender. For the following reasons,
the revocation sentence is AFFIRMED but the requirement to register as a sex
offender is VACATED. The case is REMANDED to the district court for further
proceedings.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-41678
I.
In 2001, Jimenez pled guilty to possession with intent to distribute more
than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). He did not waive appellate or collateral review rights. The district
court sentenced him to a term of five-years imprisonment followed by five years
of supervised release.
Jimenez was released from custody and began his supervised release on
June 4, 2004. On November 1, 2006, the district court issued a warrant for
Jimenez’s arrest based on a petition filed by Jimenez’s probation officer alleging
three violations of his supervised release conditions: (1) Jimenez violated the
mandatory condition of supervision requiring him not to commit another federal,
state, or local crime by committing (a) assault, (b) aggravated sexual assault, (c)
indecency with a child, and (d) prohibited sexual conduct; (2) Jimenez illegally
possessed and used a controlled substance; and (3) Jimenez did not support his
dependents by failing to pay child support. At his revocation hearing, Jimenez
pled “not true” to allegation (1), and “true” to allegations (2) and (3). The
Government offered into evidence the police reports of the alleged offenses
prepared by the investigating officers. Jimenez objected to the admission of the
police reports as a violation of the Confrontation Clause. The district court
overruled his objection and admitted the documents under seal. Defense counsel
advised the court that the charge relating to the assault allegations (1)(a) had
been dismissed.
The district court accepted Jimenez’s plea of “true” to allegations (2) and
(3) and found him in violation of the conditions of supervised release. The
district court further noted that:
[T]he Court considers the evidence before it and finds that he has
violated all these other conditions of his supervised release term
alleged in the petition for warrant or summons for an offender
under supervision, and he’s adjudged guilty of all these offenses.
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No. 06-41678
After some discussion regarding Jimenez’s violations, the district court imposed
the statutory maximum of sixty months in prison after considering the factors
under 18 U.S.C. § 3553(a). The district court also added, “[u]pon release from
imprisonment, no further supervised release, and I’ll require that [Jimenez]
register as a sex offender upon his release from imprisonment with all of the
state and national sex offender registries.” The district court then stated, “[a]nd
I will recommend that this sentence run concurrent with your state sentence
that you might receive for these allegations.” The PSR recommended a sentence
of 30 months with a determination that Jimenez’s statutory guidelines range
was 24 to 30 months. The district court imposed the statutory maximum of sixty
months.
Jimenez timely appeals and raises three issues: (A) whether the district
court’s five-year prison sentence upon revocation of Jimenez’s supervised release
was unreasonable and/or plainly unreasonable; (B) whether the district court
abused its discretion when it ordered Jimenez to register as a sex offender after
completing his term of imprisonment; and (C) whether the district court erred
in failing to include in its written judgment a recommendation that Jimenez’s
sentence run concurrent to any future state sentence that might be imposed
based on the allegations in the petition to revoke.
II.
Jimenez first challenges the revocation sentence as unreasonable. “Prior
to Booker, this court would uphold a sentence imposed ‘after revocation of
supervised release unless it [was] in violation of law or [was] plainly
unreasonable.’” United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008)
(quoting United States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000)). “In Booker,
however, the Supreme Court excised § 3742(e) and directed appellate courts to
review for unreasonableness.” Id. “This court has declined to resolve which
standard of review applies to revocation sentences after Booker; instead, this
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No. 06-41678
court has reviewed revocation cases under (a) both the ‘plainly unreasonable’
and the Booker unreasonableness standards of review or (b) the more exacting
Booker unreasonableness standard.” Id. We again decline to resolve this issue;
because Jimenez did not object to his revocation sentence, we therefore must
review under a plain error standard of review. United States v. Jones, 484 F.3d
783, 792 (5th Cir. 2007) (“[B]ecause [defendant] made no objection to his
revocation sentence in the district court, so it is subject only to plain error review
on appeal.”). “As such, his revocation sentence must be upheld unless we
conclude that there is (1) error, (2) that is plain,(3) that affects substantial rights
and (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation and citation omitted).
A.
First, Jimenez argues that because the district court did not provide any
reasons for its upward departure, the sentence should be vacated and remanded.
As justification for its upward departure, the district court only stated that “[t]he
Court considers the[] factors under 18 U.S.C. § 3553(a) and concludes this
sentence is within these – that I’m going to pronounce, satisfies them.” An
explanation must be provided if a district court issues a non-Guidelines sentence
in the revocation sentencing setting. United States v. Smith, 417 F.3d 483, 490
& n.35 (5th Cir. 2005) (citing United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005)). Under Mares:
when the judge elects to give a non-Guideline sentence, she should
carefully articulate the reasons she concludes that the sentence she
has selected is appropriate for that defendant. These reasons should
be fact specific and include, for example, aggravating or mitigating
circumstances relating to personal characteristics of the defendant,
his offense conduct, his criminal history, relevant conduct or other
facts specific to the case at hand which led the court to conclude that
the sentence imposed was fair and reasonable. Such reasons are
essential to permit this court to review the sentence for
reasonableness as directed by Booker.
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No. 06-41678
402 F.3d at 519. The district court in this case did not articulate any reasons for
its departure from the recommended Guidelines range, and did not “enumerate
the factors on which its sentence is based so the appellate court can conduct a
reasonableness review.” United States v. Reinhart, 442 F.3d 857, 863 (5th Cir.
2006). The district court in this case only identified the statutory provisions
that guided its inquiry, but did not provide any fact-specific reasons for its
upward departure to permit us to review his sentence for reasonableness. We
find the error plain. However, in order to overcome plain error review, the error
must also affect “substantial rights.” We have upheld non-Guidelines sentences
within the statutory maximum under plain error review, even if the district
court fails to articulate specific reasons, as long as the “sentence imposed was
supported by the record and not contrary to law.” United States v.
Izaguirre-Losoya, 219 F.3d 437, 441-42 (5th Cir. 2000). There is no allegation
that the sentence imposed was contrary to law, because the sentence imposed
was within the statutory maximum. See 18 U.S.C. § 3583(e)(3). The upward
departure is also supported by the record. “The original sentence was the result
of a downward departure from the applicable guideline range, a factor that can
warrant an upward departure under the guidelines.” United States v. Bennett,
194 F. App’x 203, 204 (5th Cir. Aug. 16, 2006) (citing U.S.S.G. § 7B1.4, comment.
(n.4)) (unpublished). The district court also found the commission of five serious
offenses: possession of controlled substance, assault, two counts of aggravated
sexual assault of a child, indecency with a child, and prohibited sexual conduct.
Cf. United States v. Mathena, 23 F.3d 87, 93-4 (5th Cir. 1994) (noting the wilful
multiple violation of supervised release conditions justified revocation sentence
within statutory maximum as reasonable). Moreover, the district court stated
that it did consider all the relevant factors. See United States v. Weese, 199 F.
App’x 394, 396 (5th Cir. Sept. 8, 2006) (unpublished). Based on this record, an
upward departure within the statutory maximum is not reversible plain error.
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No. 06-41678
B.
Next, Jimenez argues that the revocation sentence is substantively
unreasonable, because it relies on hearsay evidence, namely police reports.1
Parolees at revocation hearings generally have “the right to confront and
cross-examine adverse witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation).” Morrissey v. Brewer, 408 U.S. 471,
489 (1972) (emphasis added). However, this right to confront pertains only to
the decision to revoke supervised release, which is not challenged on appeal, not
revocation sentencing. See id. Jimenez conceded as “true” that he violated his
supervised release by possessing controlled substances and by failing to pay
child support. He also does not contend on appeal that the revocation of his
sentence based on his alleged sexual misconduct charges was in error. Therefore,
the district court’s decision to revoke supervised release is not disputed as
erroneous. See 18 U.S.C. § 3583 (g) (requiring revocation for possession of
controlled substances). The only challenge pertains to the reasonableness of the
revocation sentence itself. The right to confrontation is not extended to the
sentencing context. See United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.
2006). Therefore, because Jimenez does not challenge the decision to revoke his
supervised release, but only his revocation sentence, the right to confrontation
under Morrissey does not apply to this case.
We therefore only review Jimenez’s challenge to his revocation sentence
under plain error review. Evidence used in sentencing, while not bound by the
rules of evidence applicable in trial, must have “sufficient indicia of reliability.”
See U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important
to the sentencing determination, the court may consider relevant information
without regard to its admissibility under the rules of evidence applicable at trial,
1
Police reports are generally excludable as hearsay. See United States v. Lopez-Moreno,
420 F.3d 420, 437 (5th Cir. 2005 ).
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No. 06-41678
provided that the information has sufficient indicia of reliability to support its
probable accuracy.”) (emphasis added). Thus, Jimenez argues that the district
court was plainly erroneous when it determined the police reports were reliable.
We have considered police reports reliable in the sentencing context. See
United States v. Posada-Rios, 158 F.3d 832, 881 (5th Cir. 1998); Griffin v.
Leonard, 821 F.2d 1124, 1126 (5th Cir. 1987). The Third Circuit recently
addressed a similar factual situation in United States v. Leekins, 493 F.3d 143,
149-51 (3d Cir. 2007). In Leekins, the Third Circuit considered whether a police
report was sufficiently reliable for the district court to use in its sentencing
decision. Id. The Third Circuit noted that “a police report . . . is not inherently
unreliable” but a court must “revert to the general principle that the facts upon
which a judge bases a sentence must have sufficient indicia of reliability to
support their probable accuracy.” Id. at 149 (internal quotations and citations
omitted). In Leekins, the Third Circuit found verbatim statements by the
investigating police officers attached to the police report provided some indicia
of the police reports’ reliability. Id. at 150-51. The Third Circuit also relied on
the defendant’s own admissions and his counsel’s statements at trial to
corroborate the police report. Id. As another indicia of reliability, the Third
Circuit considered the detailed nature of the investigative reports. Id. at 151
(citing Crawford v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003)). Based on these
factors, the Third Circuit concluded the police reports were reliable. In this
case, the defendant did not testify, but one victim attached a hand-written letter
corroborating the sex offenses alleged in the police report. The victim of the
assault also attached a statement describing the incident. Moreover, the reports
were long and detailed. There is, therefore, some indicia of reliability; the error
is therefore not plain. See United States v. Surasky, 974 F.2d 19, 21 (5th Cir.
1992) (“[T]his Court has stated repeatedly that ‘plain error’ is error so obvious
that our failure to notice it would seriously affect the fairness, integrity, or
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No. 06-41678
public reputation of the judicial proceedings and result in a miscarriage of
justice. . . . Plain error is both obvious and substantial.”) (internal quotations and
citations omitted).
C.
The defendant also alleges that the sentence is unreasonable because the
sentence was twice the Guidelines range. This argument is without merit. The
record reveals the district court considered the sentencing guidelines and
identified numerous violations of the supervised release conditions. Jimenez’s
challenge only pertains to the reasonableness of the sentence and does not allege
the sentence was in error. It is therefore not plainly erroneous for the
sentencing court to impose the statutory maximum sentence. See Jones, 484
F.3d at 793; see also United States v. Parker, No. 07-60381, 2007 WL 4354543,
at *1 (5th Cir. Dec. 11, 2007) (unpublished).
III.
Jimenez’s second challenge is against the district court’s requirement that
the defendant register as a “sex offender” at both the state and federal levels
after he completes his imprisonment term. The defendant has never been
convicted of a sex offense. We usually review the imposition of post-
imprisonment conditions, or supervised release conditions, for an abuse of
discretion. United States v. Talbert, 501 F.3d 449, 452 (5th Cir. 2007).
However, since the defendant did not object below, we review for plain error. Id.
In Talbert, we left open the question whether a district court can order a
defendant to register as a “sex offender” if it is not required by law. Id. As with
Talbert, the requirement to register as a sex offender here is attached to a non-
sex offense crime. Id. Sex offender registration is therefore not mandatory. Id.
As such, the registration requirement must be considered a “special condition”
of supervised release governed by 18 U.S.C. § 3583(d). Id.
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No. 06-41678
The “district court has wide discretion in imposing conditions of supervised
release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). At the same
time, the court’s discretion in imposing special conditions is limited by 18 U.S.C.
§ 3583(d). Id. Under 18 U.S.C. § 3583(d), special conditions of supervised release
must be “reasonably related” to four factors: “(1) ‘the nature and circumstances
of the offense and the history and characteristics of the defendant,’ (2) the need
‘to afford adequate deterrence to criminal conduct,’ (3) the need ‘to protect the
public from further crimes of the defendant,’ and (4) the need ‘to provide the
defendant with needed [training], medical care, or other correctional treatment
in the most effective manner.’” 18 U.S.C. §§ 3583(d), 3553(a)(1), 3553(a)(2)(B),
(a)(2)(C). Every circuit court reaching the issue interpret section 3583(d) only
to require a reasonable relationship with any of the four factors not necessarily
all of them. See United States v. Johnson, 998 F.2d 696, 697-98 (9th Cir. 1993);
United States v. Sicher, 239 F.3d 289, 291 (3d Cir. 2000); United States v. Kent,
209 F.3d 1073, 1076 n.3 (8th Cir. 2000); United States v. Bull, 214 F.3d 1275,
1278 (11th Cir. 2000); United States v. Brown, 235 F.3d 2, 7 (1st Cir. 2000);
United States v. Sines, 303 F.3d 793, 800 & n.4 (7th Cir. 2002); United States v.
Barajas, 331 F.3d 1141, 1146 (10th Cir. 2003); United States v. Brown, 402 F.3d
133, 137 (2d Cir. 2005) (“Despite the use of the conjunctive in the Guidelines, a
condition may be imposed if it is reasonably related to any one or more of the
specified factors.”) (internal quotation and citation omitted). We have implicitly
accepted the unanimous conclusion of our sister circuits. See United States v.
Love, 431 F.3d 477, 484 (5th Cir. 2005) (noting that a special condition only has
to be “related to a punitive goal” (emphasis added) out of four goals set forth in
the statute). Under section 3583(d), even if a condition is related to one of these
four “punitive goals,” the condition can “involve [ ] no greater deprivation of
liberty than is reasonably necessary” to achieve the purposes of supervised
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No. 06-41678
release, and it must be “consistent with any pertinent policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3583(d).
The imposition of a sex offender registration requirement has no
reasonable relationship with the defendant’s underlying convicted crime, i.e., the
distribution of marijuana, nor his criminal history, i.e., he has never been
charged with a sex-related offense. The registration requirement also does not
provide any treatment or training. Therefore, the imposition of the sex offender
registration requirement must be related to the punitive goals of deterrence or
public safety. See, e.g., United States v. Prochner, 417 F.3d 54, 64 (1st Cir. 2005).
The question then is whether there is sufficient evidence that establishes a
reasonable relationship between the registration requirement and the punitive
goals of deterrence or public safety.
In most of these cases, courts upheld sex offender registration
requirements because the defendant was previously convicted of a sex offense
even if the underlying federal offense was not sex-related. See Talbert, 501 F.3d
at 452; see also United States v. Dupes, 513 F.3d 338, 343-44 (2d Cir. 2008);
United States v. Rosario, 386 F.3d 166 (2d Cir. 2004); United States v. Peterson,
248 F.3d 79, 84-86 (2d Cir. 2001). In other words, a previous conviction could be
sufficient evidence of a reasonable relationship between sex offender registration
and the punitive goals of deterrence or public safety. However, here, the
defendant does not have any past convictions for sex-related offenses.
Nevertheless, the lack of a sex offense conviction does not end our inquiry.
Nothing in the statute prohibits the imposition of sex offense conditions for
offenders who have no history of sex-related convictions. See United States v.
Prochner, 417 F.3d 54, 63 (1st Cir. 2005) (“Nothing contained in the statute . .
. limits the condition of sex offender treatment just to individuals convicted of
sex offenses.”).
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No. 06-41678
There must then be some other evidence that establishes a reasonable
relationship between the condition and a punitive goal. Many of our sister
courts have vacated supervised release conditions that impose sex-offense
related conditions, such as sex offender registration, if the underlying conviction
was not sex related and there is little evidence that suggests a propensity to
commit a sex-related offense in the future. See, e.g., United States v. Scott, 270
F.3d 632, 636 (8th Cir. 2001) (“The government presented no evidence that Scott
has a propensity to commit any future sexual offenses, or that Scott has repeated
this behavior in any way since his 1986 conviction.”) (reviewing under an abuse
of discretion standard); see also United States v. T.M., 330 F.3d 1235, 1237, 1240
(9th Cir. 2003) (“In summary, T.M.’s twenty-year-old conviction and
forty-year-old dismissed [sex offense] charge[s], along with his subsequent
probation violations and therapeutic evaluations, even considered cumulatively,
do not establish a reasonable relationship between his sexually-related
conditions of supervised release and either deterrence, public safety, or
rehabilitation. In imposing those conditions, the district court abused its
discretion.”) (reviewing under an abuse of discretion standard). In United States
v. Carter, 463 F.3d 526, 532-33 (6th Cir. 2006), the Sixth Circuit, under an abuse
of discretion standard, found a stalking conviction, which included an obscene
phone call, was “insufficient to establish that Carter committed a recent sex
offense,” and therefore did not justify a sex offense special condition even if the
government alleges “sexual overtones” to the convicted offense.
In two other cases, under plain error review, a sister Circuit has upheld
sex offender conditions, because there was sufficient evidence of a propensity to
commit a sex offense. In Prochner, under plain error review, the First Circuit
upheld a supervised release condition that the defendant undergo evaluation for
possible sex offender treatment despite the defendant never having a conviction
for a sex-related offense. 417 F.3d at 63-64. The First Circuit found that the
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No. 06-41678
record evidence supported such a condition, relying on the fact that defendant
worked at the YMCA, was in constant contact with adolescent males, had
journal entries that evinced a desire to engage in sexual relationships with
adolescent males, and evaluations rendered by a mental health worker and
clinical social worker suggested the defendant had a potential problem with
adolescent males. Id. In approving the sex offender condition, the First Circuit
emphasized the fact that the sex offender condition was upheld because it did
not require the defendant to register as a sex offender thereby distinguishing
Prochner from Scott and T.M. Id. at 64 & n.7 (“[I]n Scott and T.M., unlike here,
the special conditions included the stigmatizing condition that the defendant
register as a sex offender.”). Implicitly, the First Circuit considered sex offender
registration as a more serious deprivation of liberty than a requirement to
undergo sex offender evaluation and treatment. See id. Similarly, the Seventh
Circuit in United States v. Ross, under plain error review and citing Prochner,
upheld a condition for sex offender treatment, because the record contained
evidence that the defendant fantasized about crimes against children. 475 F.3d
871, 875-76 (7th Cir. 2007).
In each of these cases, when the court determined whether to attach sex
offender-related restrictions onto a conviction unrelated to sex, the court
examined the record evidence to see if there was sufficient evidence of a
propensity for a future sex offense that requires deterrence or can be considered
a threat to public safety. See, e.g., Scott, 270 F.3d at 636; see also Coleman v.
Dretke, 395 F.3d 216, 225 (5th Cir. 2004) (“Coleman I”) (“[Texas] may condition
Coleman’s parole on sex offender registration and therapy only if he is
determined to constitute a threat to society by reason of his lack of sexual
control. Absent a conviction of a sex offense, the Department must afford him an
appropriate hearing and find that he possesses this offensive characteristic
before imposing such conditions. This court was told at oral argument that
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No. 06-41678
evidence of Coleman’s lack of sexual control exists. None appears in the record,
however, and no contention is made that Coleman has been afforded a hearing
meeting the requirements of due process.”). The only evidence arguably related
to a propensity to commit a sex offense consists of three allegations from three
young victims contained in investigative police reports. These unsubstantiated
allegations do not establish any propensity to commit these acts in the future
and therefore do not establish a reasonable relationship to the need for
deterrence or a threat to the public. In Prochner, the court upheld a sex offender-
related condition based on a recent accusation of a sex offense that did not arise
to a conviction. See 417 F.3d at 64 n.7. However, unlike this case, the sentencing
court in Prochner also had “evaluations by a mental health expert and a licensed
clinical social worker in the last three years.” Id. Such additional evidence in
Prochner (not found in this case) establishes a history and a propensity to
commit such acts that contextualizes and substantiates the otherwise
unsubstantiated accusations. No evidence in this case substantiates the
accusations so as to support a finding as to the defendant’s propensity to commit
sex offenses in the future.2 The error is plain.
Moreover, the error affects substantial rights. The evaluations by experts
in Prochner and the accusation of a sex offense supported a finding that there
was a potential mental health problem, and provided sufficient evidence to
support the supervised release condition -- sex offender treatment -- as
reasonably related to the punitive goal of providing the defendant medical care
and correctional treatment. The evidence presented here -- allegations of a sex
2
The question presented in section II.B concerns the admissibility of the police reports
as proper evidence that the judge could reasonably use in a sentencing decision. In section III,
we agree that the police reports are admissible evidence; however, we conclude that this
evidence is not sufficient to support a finding of a propensity to commit sex offenses in the
future and thereby fails to establish a reasonable relationship between the special condition
and a punitive goal.
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No. 06-41678
offense -- may possibly, per Prochner, support a sex offender evaluation and
possible treatment in order to provide the defendant medical diagnosis and care;
however, the evidence, as its stands now, cannot support the imposition of a sex
offender registration requirement, a significantly more serious deprivation of
liberty, as reasonably necessary for deterrence or for public safety reasons. In
other words, the more serious restriction on liberty in this case could have been
more limited -- for example, a sex offender evaluation may be first ordered before
the imposition of sex offender treatment and, then, registration. See Prochner,
417 F.3d at 64 & n.7 (considering sex offender evaluation and possible treatment
less stigmatizing than sex offender registration requirement). Courts are in
agreement that imposing a sex offender registration requirement and treatment
affects a substantial right, because it compels a serious deprivation of liberty and
creates stigmatizing consequences. See, e.g., Coleman v. Dretke, 409 F.3d 665,
668 (5th Cir. 2005) (“Coleman II”); Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir.
1997) (“We can hardly conceive of a state’s action bearing more ‘stigmatizing
consequences’ than the labeling of a prison inmate as a sex offender.”). While we
modify the revocation sentence to excise the requirement to register as a sex
offender, we leave open the possibility that the district court may impose a less
restrictive condition after proper proceedings on remand, such as a sex offender
evaluation as a precursor to possible future sex offender treatment and
registration. Cf. United States v. Warden, 291 F.3d 363, 364 (5th Cir. 2002)
(applying such a supervised release condition); United States v. Penny, 215 F.
App’x 336, 337 (5th Cir. Jan. 30, 2007) (unpublished) (noting that the imposition
of sex offender-related conditions, but not sex offender registration, after finding
defendant committed a sex offense based on the record, was reasonably related
to punitive goals under 18 U.S.C. § 3553). We consider the failure to contemplate
this obvious approach before imposing the serious stigma of sex-offender
registration with insufficient evidence of a propensity to commit sex offenses is
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No. 06-41678
unfair. For these reasons, we find plain error in the district court’s imposition
of a sex offender registration requirement in this case.
For these reasons, we now VACATE the requirement that Jimenez must
register as a sex offender.
IV.
In the district court’s oral statements during the sentencing hearing, the
district court clearly recommends Jimenez’s sentence should run concurrently
with any yet-to-be imposed state sentence that he may receive based on his
supervised release violations. The district court has this authority. See United
States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), abrogated on other
grounds, United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006); see also
United States v. Quintana-Gomez, --- F.3d ----, 2008 WL 763368 (5th Cir. Mar.
25, 2008). However, the district court did not include this recommendation in
its written judgment. United States v. Del Barrio, 427 F.3d 280, 284 (5th Cir.
2005) (“[O]ur case law holds that when there is a conflict between a written
sentence and an oral pronouncement, the oral pronouncement controls.”).
Whether we characterize the difference between the written and oral
pronouncements as in conflict or as creating an ambiguity, it is clear from the
record that the district court intended Jimenez’s sentence to run concurrently
with any yet-to-be imposed state violations. Warden, 291 F.3d at 365. We will
now remand the revocation sentence so the district court can conform its written
order with its controlling oral pronouncement. See United States v. Wheeler, 322
F.3d 823, 828 (5th Cir. 2003).
V.
Jimenez’s revocation sentence is AFFIRMED but we VACATE the
requirement that Jimenez must register as a sex offender. The entire revocation
sentence is REMANDED for further proceedings consistent with this opinion.
15