United States v. Eric Wicker

Case: 19-30149 Document: 00515200661 Page: 1 Date Filed: 11/15/2019
REVISED November 15, 2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30149 FILED
Conference Calendar October 16, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERIC J. WICKER,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CR-108-1
Before STEWART, DENNIS, and HO, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Eric J. Wicker has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Wicker has not filed a response. We have reviewed counsel’s brief and the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-30149 Document: 00515200661 Page: 2 Date Filed: 11/15/2019
No. 19-30149
relevant portions of the record reflected therein. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
In this circuit, where the oral and written pronouncements vary, it is the
oral pronouncement of sentence that controls. United States v. Shaw, 920 F.2d
1225, 1231 (5th Cir. 1991). Generally, when there is such a discrepancy, this
court remands the case to have the district court amend the written judgment
to conform to its oral judgment. United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001). In its oral pronouncement, the district court stated as follows
regarding Wicker’s federal sentence:
[It] shall run concurrently [with] any sentence imposed in docket
number 03-18-0524 of the 19th Judicial District Court, Baton
Rouge, Louisiana. His sentence shall run consecutively to any
sentences imposed in docket number 03-15-0863, 09-16-0337 and
05-18-[0]267 1 of the 19th Judicial District Court, Baton Rouge;
docket number 16-CR-129181s, 17-CR-118432s, and 18-BR-
050392 of the Baton Rouge City Court, docket number 38760 of the
23rd Judicial District Court, Gonzales, Louisiana and any
sentence imposed as a result of the defendant’s arrest by the Baton
Rouge Police Department for theft and traffic control signals on
August 3rd, 2018.
These oral instructions, however, were not included in the written
judgment. The absence of the oral pronouncement from the written judgment
creates a conflict, insofar as the written judgment “imposes a more burdensome
requirement than that of the oral pronouncement” by eliminating Wicker’s
ability to have his federal sentence run concurrently with any state sentence
stemming from the same underlying conduct as the federal offense. See United
States v. Flores, 664 F. App’x 395, 398 (5th Cir. 2016) (internal quotation marks
and citation omitted). The district court was without jurisdiction to enter an
amended judgment during the pendency of this appeal. See United States v.
1 The oral pronouncement contains a typographical error; the docket number should
read, “5-18-0267.”
2
Case: 19-30149 Document: 00515200661 Page: 3 Date Filed: 11/15/2019
No. 19-30149
Lucero, 755 F. App’x 384, 385-87 (5th Cir. 2018). We therefore remand for the
limited purpose of allowing the district court to conform the written judgment
with the oral pronouncement. See Flores, 664 F. App’x at 399.
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2. The case is REMANDED to the district
court for the limited purpose of conforming the written judgment to the oral
pronouncement.
3