United States v. Leobardo Vasquez-Ruiz

Case: 17-40249 Document: 00514241810 Page: 1 Date Filed: 11/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40249
FILED
November 17, 2017
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LEOBARDO VASQUEZ-RUIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-1348-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Leobardo Vasquez-Ruiz pleaded guilty to one count of illegally
reentering the United States following deportation and was sentenced to 37
months in prison and three years of supervised release. He contends that the
district court’s oral pronouncement of sentence conflicts with its subsequent
written judgment. Specifically, although the district court advised Vasquez-
Ruiz at sentencing that he was “going to get deported” and could not return to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-40249
the United States illegally, the district court did not state that Vasquez-Ruiz
“must immediately report, continue to report, or surrender” to immigration
officials upon his release from prison, as required by the written judgment.
Vasquez-Ruiz maintains that because this “report or surrender” special
condition was not orally pronounced at his sentencing, this court should vacate
the judgment in part and remand so that the district court can conform its
written judgment to its oral pronouncement of sentence.
Although the appendix to Vasquez-Ruiz’s presentence report contained
the special condition that he “immediately report” to immigration officials, the
district court did not ask any targeted questions about supervised-release
conditions during the sentencing hearing. Vasquez-Ruiz, thus, did not have a
meaningful opportunity to object to the challenged special condition at his
sentencing hearing. Consequently, our review is for an abuse of discretion.
See United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).
“[W]e have long held that a defendant has a constitutional right to be
present at sentencing.” United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003)
(footnote omitted). Therefore, when a conflict exists between the sentence
orally pronounced in court and a later written judgment, the oral
pronouncement controls. See Warden, 291 F.3d at 365. “The key
determination is whether the 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) (citation omitted). “If the written judgment broadens
the restrictions or requirements of supervised release from an oral
pronouncement, a conflict exists.” Id. (citations omitted).
There is no conflict between the written judgment and oral
pronouncement if the judgment includes supervised release conditions that are
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mandatory, standard, or recommended by the Sentencing Guidelines, even if
the conditions were not orally pronounced at sentencing. See United States v.
Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003). As Vasquez-Ruiz notes, the
“report or surrender” requirement contained in the written judgment is not a
standard or mandatory condition of supervised release, nor is it recommended
by the Sentencing Guidelines. Instead, it constitutes a permissive special
condition set forth in 18 U.S.C. § 3583(d) and in the Southern District of
Texas’s General Order No. 2017-01. This Court has previously held that the
failure to pronounce orally the “surrender” provision constitutes a conflict with
a written judgment that contains the requirement, even if the district court
orally stated at sentencing that the defendant should not return to the United
States illegally. See United States v. Zepeda-Zalaberry, 458 F. App’x 342, 343
(5th Cir. 2012); United States v. Vasquez-Parrales, 457 F. App’x 390, 391 (5th
Cir. 2012); United States v. Chinchilla-Comelly, 456 F. App’x 463, 464 (5th Cir.
2012).
In this case, however, the district court not only advised Vasquez-Ruiz
that he was subject to the special condition that he could not return illegally
to the United States, but also specifically stated that he was “going to get
deported.” The requirement that Vasquez-Ruiz report or surrender to
immigration officials is clearly consistent with the district court’s intent that
Vasquez-Ruiz would be deported upon his release from prison. See Warden,
291 F.3d at 365. This requirement did not broaden any of the restrictions or
requirements of supervised release that were orally pronounced at sentencing.
See Mireles, 471 F.3d at 558. Moreover, the “report or surrender” requirement
is now part of the same special condition, set forth in the Southern District of
Texas’s General Order No. 2017-01, prohibiting a defendant from returning
illegally to the United States. Based on the foregoing, there is no conflict
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between the oral pronouncement of sentence and the written judgment.
Accordingly, the district court’s judgment is AFFIRMED.
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