United States v. Armando Gracia , 407 F. App'x 847 ( 2011 )

Case: 10-20374 Document: 00511349273 Page: 1 Date Filed: 01/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 12, 2011
No. 10-20374
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARMANDO GARCIA GRACIA, also known as Armando Garcia, also known as
Armando Garcia Garcia, also known as Armanda Garcia-Gracia, also known as
Amando Garcia-Garcia,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-657-1
Before JOLLY, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Armando Garcia Gracia appeals the sentence imposed after his guilty plea
conviction for being illegally present in the United States following deportation.
Garcia Gracia argues that the district court’s written judgment of conviction
conflicts with the oral pronouncement of sentence. Because Garcia Gracia had
no opportunity at sentencing to consider or object to the written judgment, we
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-20374 Document: 00511349273 Page: 2 Date Filed: 01/12/2011
No. 10-20374
review for abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006).
At sentencing, the district court advised Garcia Gracia that he could be
required as a provision of supervised release to register as a sex offender, subject
to the discretion of his probation officer. Garcia Gracia objected to this provision,
asserting that he did not wish the registration requirement to be left to the
probation officer’s discretion and that he should not be required to register if he
was not required to do so under state or federal law, in light of the age of his
prior offenses. The district court appeared to sustain these objections at
sentencing. However, the written judgment retained the discretion of the
probation officer to determine whether Garcia Gracia must participate in such
registration, and such a limitation need also be authorized by the court.
Additionally, the written judgment did not specifically limit Garcia Gracia’s
participation in such a registration program to the mandates of state or federal
law, although it stated that Garcia Gracia would not be required to appear for
additional processing if the state in question did not have a registration
program; the judgment was silent on the question whether Garcia Gracia would
have to register if the pertinent state had a program, but a statute of limitations
made it unnecessary for him to comply with the requirements.
If a written entry of judgment conflicts with an oral pronouncement at a
sentencing hearing, the oral pronouncement controls. Bigelow, 462 F.3d at 381,
383. Likewise, if there is an ambiguity that may not be resolved through
examination of the record as a whole, the case should be remanded for further
clarification. See United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006).
Because it is not clear whether and to what extent the district court incorporated
the objection made at sentencing into the written judgment, we REMAND for
the district court to clarify the written judgment in light of the statements made
at the sentencing hearing. See id.; United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001).
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