United States v. Zavala ( 2021 )

Case: 20-40133 Document: 00515738251 Page: 1 Date Filed: 02/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-40133 February 9, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
David Jesus Zavala,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-2048-4
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
David Jesus Zavala was convicted of conspiracy to possess with intent
to distribute a controlled substance, namely 500 grams or more of
methamphetamine and five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and was sentenced to 235 months of
*
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opinion should not be published and is not precedent except under the limited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: 20-40133 Document: 00515738251 Page: 2 Date Filed: 02/09/2021
No. 20-40133
imprisonment and a five-year term of supervised release. He contends that
the district court erred by including special supervised release conditions in
the written judgment that it failed to orally pronounce at sentencing and seeks
remand to permit the district court to reform the written judgment to the oral
pronouncement. Because Zavala had no opportunity to object to any
discrepancy between his oral and written sentences, we review for abuse of
discretion. 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).
When oral pronouncement is required, “[t]he key determination is
whether [any] discrepancy between the oral pronouncement and the written
judgment is a conflict or merely an ambiguity that can be resolved by
reviewing the rest of the record.” United States v. Mireles, 471 F.3d 551, 558
(5th Cir. 2006). “If the written judgment broadens the restrictions or
requirements” of the orally pronounced conditions of supervised release,
then a conflict exists. Id.Zavala was orally ordered to undergo outpatient drug treatment while
on supervised release, and his complaints concern additional requirements in
the written judgment that he undergo inpatient or outpatient substance-
abuse and alcohol-abuse treatment, submit to further substance abuse testing
without obstructing or tampering with the testing methods, pay for the
treatment and testing, limit his consumption of alcohol, and not possess or
use psychoactive substances. Review of the record reflects that the majority
of the unpronounced special conditions are consistent with the orally-
pronounced condition that Zavala undergo outpatient drug treatment and the
district court’s intention that Zavala receive treatment for his extensive
substance abuse and alcohol issues. With the exception of the inclusion of
“inpatient or outpatient” substance-abuse and alcohol-abuse treatment—
which does conflict with the orally-pronounced condition of only
“outpatient” treatment—these additional provisions constitute ambiguities,
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Case: 20-40133 Document: 00515738251 Page: 3 Date Filed: 02/09/2021
No. 20-40133
rather than conflicts, with the orally pronounced terms of supervised release.
See Mireles, 471 F.3d at 558.
Accordingly, Zavala’s sentence is AFFIRMED in part, VACATED
in part, and REMANDED for amendment of the written judgment by
removing the words “inpatient or” from the special supervised release
conditions regarding substance-abuse and alcohol-abuse treatment.
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