United States v. Ulloa-Funez

Case: 22-20141 Document: 00516560267 Page: 1 Date Filed: 11/29/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-20141 November 29, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Denis Osmari Ulloa-Funez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-377-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Defendant-Appellant Denis Osmari Ulloa-Funez appeals his sentence
for illegal reentry. The only issue on appeal is whether the district court
abused its discretion by failing at sentencing to orally pronounce, or reference
by shorthand, the discretionary standard conditions of supervised release
*
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opinion should not be published and is not precedent except under the limited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: 22-20141 Document: 00516560267 Page: 2 Date Filed: 11/29/2022
No. 22-20141
before their inclusion in the final judgment. Although the appendix of Ulloa-
Funez’s pre-sentencing report and Southern District of Texas’s General
Order 2017-01 contain these standard conditions, the district court did not
expressly reference these documents either.
As evinced by the record, our review is for abuse of discretion because
Ulloa-Funez did not have an opportunity to object to these conditions. See
United States v. Diggles, 957 F.3d 551, 559-60 (5th Cir. 2020) (en banc);
United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020).
The district court was required to pronounce or refer to the conditions
of supervision that are discretionary under 18 U.S.C. § 3583(d) at sentencing.
See Diggles, 957 F.3d at 556-59. Of the 15 conditions, only the first was stated.
The district court did not pronounce or refer to the remaining 14 conditions
at issue and did not orally adopt or mention the PSR’s appendix or the
standing order. Cf. United States v. Martinez, 15 F.4th 1179, 1180-81 (5th Cir.
2021); Grogan, 977 F.3d at 351-54. The inclusion of these conditions in the
written judgment thus violated Ulloa-Funez’s right to be present at
sentencing. See Diggles, 957 F.3d at 559-63 & n.5.
We therefore VACATE the judgment in part and REMAND the
case for the limited purpose of amending the written judgment to conform
with the oral pronouncement of sentence. See Diggles, 957 F.3d at 559-63;
United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006).
2