United States v. Macedo-Benitez ( 2021 )

Case: 19-11049 Document: 00515698133 Page: 1 Date Filed: 01/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 7, 2021
No. 19-11049 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Carlos Macedo-Benitez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-61-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Juan Carlos Macedo-Benitez appeals his 63-month, within guidelines
sentence for illegal reentry following removal. He contends that the district
court erred by including 12 discretionary supervised release conditions in the
written judgment that it failed orally to pronounce at sentencing. The
*
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opinion should not be published and is not precedent except under the limited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: 19-11049 Document: 00515698133 Page: 2 Date Filed: 01/07/2021
No. 19-11049
Government asserts that the error was harmless. As a remedy, both parties
seek remand to permit the district court orally to pronounce the previously
unpronounced supervised release conditions. Because Macedo-Benitez had
no opportunity to object to the unpronounced conditions, we review for
abuse of discretion. See United States v. Gomez, 960 F.3d 173, 179 (5th Cir.
2020).
We agree that the district court abused its discretion by imposing the
12 unpronounced discretionary supervised release conditions because the
court did not orally adopt or confirm Macedo-Benitez’s review of any
document listing those conditions. See United States v. Diggles, 957 F.3d 551,
559–60 (5th Cir. 2020) (en banc), cert. denied, 2020 WL 6551832 (U.S. Nov.
9, 2020) (No. 20-5836). “Where there is an actual conflict between the
district court’s oral pronouncement of sentence and the written judgment,
the oral pronouncement controls.” United States v. Mireles, 471 F.3d 551, 557
(5th Cir. 2006) (citation omitted). The remedy is correction of the
nonconforming written judgment. See United States v. Illies, 805 F.3d 607,
610 (5th Cir. 2015).
Accordingly, we REMAND this case for the district court to amend
its written judgment to conform with its oral pronouncement of Macedo-
Benitez’s sentence.
2