United States v. Perez ( 2023 )

Case: 23-20067 Document: 00516959696 Page: 1 Date Filed: 11/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 7, 2023
No. 23-20067 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Brenda Yadira Perez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-532-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Brenda Yadira Perez appeals the sentence imposed following her
guilty-plea conviction, arguing that several conditions of supervised release
in the written judgment conflict with the oral pronouncement at sentencing.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-20067 Document: 00516959696 Page: 2 Date Filed: 11/07/2023
No. 23-20067
We agree that a conflict exists, as does the Government. Accordingly, we
vacate the sentence in part and remand. 1
To impose conditions of supervised release not mandated by 18
U.S.C. § 3583(d), a district court must pronounce them at sentencing.
United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc). “If the
written judgment broadens the restrictions or requirements of supervised
release from an oral pronouncement, a conflict exists.” United States v.
Mireles, 471 F.3d 551, 558 (5th Cir. 2006). In such cases the judgment must
be amended to conform to the oral sentence. Id.The written judgment in this case includes 15 “standard conditions”
that are not required by § 3583(d) and were not pronounced at sentencing.
Perez challenges standard conditions 2 through 15. Because she did not have
an opportunity to object in the district court, our review is for abuse of
discretion. See United States v. Martinez, 987 F.3d 432, 434–35 (5th Cir.
2021).
As the Government concedes, standard conditions 2 through 9 and 11
through 15 conflict with the oral pronouncement of sentence and must
therefore be stricken. See Mireles, 471 F.3d at 558. Standard condition 10—
which prohibits Perez from owning or possessing a firearm, ammunition,
destructive device, or dangerous weapon—is partially consistent with the
mandatory condition that she must not commit other crimes. See 18 U.S.C.
§§ 922(g)(1), 921(a)(3); see also § 3583(d). However, because this
prohibition creates a conflict to the extent it encompasses lawful conduct, it
must be modified. See Mireles, 471 F.3d at 558.
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1
Judge Oldham adheres to his view that our precedents are deeply flawed and
should be reconsidered. See United States v. Griffin, No. 21-50294, 2022 WL 17175592, at
*7–8 (5th Cir. Nov. 23, 2022) (Oldham, J., dissenting).
2
Case: 23-20067 Document: 00516959696 Page: 3 Date Filed: 11/07/2023
No. 23-20067
For these reasons, the judgment is VACATED IN PART, and we
REMAND to the district court for the limited purpose of conforming the
judgment to the oral pronouncement of sentence.
3