United States v. Pelayo-Zamarripa ( 2023 )

Case: 22-40285 Document: 00516878174 Page: 1 Date Filed: 08/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 30, 2023
No. 22-40285
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Pelayo-Zamarripa,
Defendants—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-cr-161
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Juan Pelayo-Zamarripa appeals the terms of his supervised release
arguing that there is an impermissible conflict between the district court’s
oral pronouncement and written judgment. Finding no conflict, we
AFFIRM.
I.
Juan Pelayo-Zamarripa was arrested in 2020 for distributing cocaine.
A grand jury charged Pelayo-Zamarripa with one count of conspiracy to
possess with intent to distribute 5 kilograms or more of cocaine and three
Case: 22-40285 Document: 00516878174 Page: 2 Date Filed: 08/30/2023
No. 22-40285
counts of possession with intent to distribute 500 grams or more of cocaine.
Pursuant to a plea agreement, Pelayo-Zamarripa pleaded guilty to one count
of conspiring to possess with intent to distribute five kilograms or more of
cocaine. The district court accepted Pelayo-Zamarripa’s guilty plea.
In the presentence report, the probation officer recommended various
mandatory and standard conditions of supervision. The probation officer also
recommended a special condition, as Pelayo-Zamarripa was a legal alien
permanent resident, but his arrest would have rendered him subject to
deportation proceedings. It read:
You must surrender to U.S. Immigration and Customs
Enforcement and follow all of their instructions and reporting
requirements until any deportation proceedings are completed.
If you are ordered deported from the United States, you must
remain outside the United States unless legally authorized to
reenter. If you reenter the United States, you must report to
the nearest probation office within 72 hours after you return.
The district court imposed a guidelines sentence of imprisonment for
95 months with three years of supervised release. The court orally adopted
the special conditions recommended in the presentence report and orally
informed Pelayo-Zamarripa that he must be legally authorized to reenter the
country, as is reflected in the written judgment.
The written judgment also included a condition that was not
recommended in the presentence report or announced at sentencing. This
“work-authorization condition” reads: “You must seek proper
2
Case: 22-40285 Document: 00516878174 Page: 3 Date Filed: 08/30/2023
No. 22-40285
documentation from U.S. Immigration and Customs Enforcement
authorizing you to work in the United States.”
Pelayo-Zamarripa timely appealed, arguing that the work-
authorization condition in the written judgment conflicts with the oral
pronouncement of his sentence and that the written judgment should be
amended to conform to the oral pronouncement. We disagree.
II.
“When a defendant objects for the first time on appeal, we usually
review only for plain error”, but not when the defendant had no opportunity
to object in the trial court. 1 So, “when a defendant appeals a court’s failure
to pronounce a condition that later appears in the judgment,” the standard
of review is abuse of discretion. 2
“A district court abuses its discretion in imposing a special condition
of supervised release if the condition in its written judgment conflicts with
the condition as stated during its oral pronouncement.” 3 However, if the
discrepancy between the two is “merely an ambiguity,” then we examine the
entire record to determine the sentencing court’s intent in imposing the
condition. 4
_____________________
1
United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020).
2
Id.3
United States v. Flores, 664 F. App’x 395, 397 (5th Cir. 2016) (unpublished) (per
curiam) (citing United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (per curiam)).
4
Id.3
Case: 22-40285 Document: 00516878174 Page: 4 Date Filed: 08/30/2023
No. 22-40285
Although Pelayo-Zamarripa raises this issue for the first time on
appeal, there is no indication he was informed of the work-authorization
condition at any point before it appeared in the written judgment. We then
review for abuse of discretion.
III.
The district court must orally pronounce a sentence. 5 While at first
glance it might seem trivial, “[t]he pronouncement requirement is not a
meaningless formality.” 6 This Court recently explained that the
pronouncement requirement is in service of defendants’ right to be present
for sentencing that itself springs from the Fifth Amendment’s Due Process
Clause. 7 At heart, the pronouncement requirement girds a defendant’s right
to defend themselves. 8
“Where there is an actual conflict between the district court’s oral
pronouncement of sentence and the written judgment, the oral
pronouncement controls.” 9 This said, not all unpronounced conditions arise
to the level of an actual conflict. When reviewing the discrepancies between
an oral pronouncement and a written judgment, “[t]he key determination is
whether the discrepancy between the [two] is a conflict or merely an
_____________________
5
See Diggles, 957 F.3d at 556–59.
6
Id. at 560.
7
Id. at 557.
8
See id. at 558.
9
United States v. Mireles, 471 F.3d 551, 557 (5th Cir. 2006).
4
Case: 22-40285 Document: 00516878174 Page: 5 Date Filed: 08/30/2023
No. 22-40285
ambiguity that can be resolved by reviewing the rest of the record.” 10 In
differentiating conflict and ambiguity, we ask whether “the written judgment
broadens the restrictions or requirements of supervised release, or impos[es]
a more burdensome requirement than that of the oral pronouncement.” 11
Turning to the matter at hand, we find that there is no conflict
between the district court’s oral pronouncement of Pelayo-Zamarripa’s
sentence and its written judgment. The work-authorization condition does
not broaden the restrictions in Pelayo-Zamarripa’s supervised release already
in place under the oral pronouncement. The district court stated in open
court that Pelayo-Zamarripa must be legally authorized to reenter the
country. The district court adopted the presentence report, which stated that
“[i]f you are ordered deported from the United States, you must remain
outside the United States unless legally authorized to reenter.” The written
judgment, which required Pelayo-Zamarripa to obtain the proper
documentation from ICE in order to work in the United States, only
“clarifies that one avenue for legal reentry is work authorization.” 12
This purported “conflict” is then best described as an ambiguity—
one that can be resolved by looking to entire record to determine the
sentencing court’s intent in imposing the condition. The record makes
_____________________
10 Flores, 664 F. App’x at 398 (citing Mireles, 471 F.3d at 558 (5th Cir. 2006)).
11
Id. at 398 (quotations marks and citation omitted).
12
United States v. Garcia Miguel, 829 F. App’x 36, 41 (5th Cir. 2020) (unpublished)
(per curiam).
5
Case: 22-40285 Document: 00516878174 Page: 6 Date Filed: 08/30/2023
No. 22-40285
sufficient reference to Pelayo-Zamarripa’s immigration history to discern the
district court’s efforts to ensure that Pelayo-Zamarripa complied with the
relevant immigration laws. Without a conflict, Pelayo-Zamarripa’s appeal
must fail.
****
The judgment of the district court is AFFIRMED.
6