United States v. Rivera ( 2022 )

Case: 21-50473 Document: 00516361129 Page: 1 Date Filed: 06/17/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 17, 2022
No. 21-50473 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Julian Rivera,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-283-14
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Julian Rivera appeals the sentence imposed for his conviction of
conspiracy to distribute and to possess with intent to distribute
methamphetamine. He argues that the written judgment conflicts with the
district court’s oral pronouncement of the sentence because the written
judgment contains 19 discretionary conditions of supervised release that were
*
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opinion should not be published and is not precedent except under the limited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: 21-50473 Document: 00516361129 Page: 2 Date Filed: 06/17/2022
No. 21-50473
not orally pronounced at sentencing. Specifically, he challenges the eighth
mandatory condition, the ninth mandatory condition, and all 17 standard
conditions in the written judgment.
The district court failed to give Rivera adequate notice at sentencing
that it was imposing the challenged conditions, and they must be excised
from the written judgment to the extent they conflict with the district court’s
oral pronouncement of the sentence. See United States v. Diggles, 957 F.3d
551, 557-59 (5th Cir. 2020) (en banc); United States v. Mudd, 685 F.3d 473,
480 (5th Cir. 2012). The Government disputes whether the eighth and ninth
mandatory conditions must be stricken despite our conclusion that the
district court did not pronounce them at sentencing.
The eighth mandatory condition need not be excised because it is
consistent with the district court’s oral pronouncement of a special
assessment, the statute mandating the special assessment, and the district
court’s intent that Rivera be required to pay the special assessment. See
Mudd, 685 F.3d at 480. The ninth mandatory condition and the 17 standard
conditions must be excised. See Diggles, 957 F.3d at 557-59; Mudd, 685 F.3d
at 480.
Accordingly, we VACATE in part and REMAND for the district
court to amend the written judgment in accordance with this opinion. In all
other respects, the judgment is AFFIRMED.
2