United States v. Hernandez-Zuniga

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 3, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-41163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTURO HERNANDEZ-ZUÑIGA,
Defendant - Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:98 CR00360-001
--------------------
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
On May 18, 1999, Arturo Hernandez-Zuñiga was sentenced to
seventy-two months’ imprisonment and a four year term of supervised
release following his conviction for possession with the intent to
distribute approximately two kilograms of cocaine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B).1 Hernandez-Zuñiga began his
term of supervised release on July 3, 2004. On June 30, 2006, the
government filed a petition for revocation of supervised release
*
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this opinion should not be published and is not precedent except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.
1
This Court affirmed Hernandez-Zuñiga’s conviction and
sentence in United States v. Hernandez-Zuñiga, 215 F.3d 483 (5th
Cir. 2000).
alleging that Hernandez-Zuñiga had failed to (1) report to his
probation officer, and (2) participate in a drug treatment program.
Both actions were required by the conditions of his supervised
release. On July 18, 2006, Hernandez-Zuñiga pled true to the
allegations and the district court revoked his supervised release.
The district court imposed a new sentence of seven months’
imprisonment to be followed by fifty-three months of supervised
release. In addition, the district court orally imposed electronic
monitoring as a special condition of supervised release. The
district court did not mention any form of home detention during
sentencing. The written judgment, however, imposed a special
condition of six months of home detention with the possibility of
electronic monitoring. Because of the discrepancy between the
written judgment and the oral pronouncement of his sentence,
Hernandez-Zuñiga appeals the inclusion of home confinement as a
condition of his supervised release.
Since Hernandez-Zuñiga had no opportunity at sentencing to
consider or object to the special condition of home confinement,
our standard of review is for abuse of discretion. United States
v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
When a written judgment conflicts with the oral pronouncement
of sentencing, the oral pronouncement controls. United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001). If, however, there is
merely an ambiguity between the two sentences, we must look to the
district court’s intent to determine the sentence. Id. Both
Hernandez-Zuñiga and the government agree that the written judgment
2
is in conflict with the oral pronouncement of Hernandez-Zuñiga’s
sentence. Furthermore, both parties agree that the written
judgment should be amended to unambiguously reflect the oral
imposition of electronic monitoring without any home detention. We
agree. Therefore the sentence is VACATED in PART and this matter
is REMANDED to the district court with instructions to conform the
written judgment to the oral pronouncement at sentencing,
consistent with this opinion.
SENTENCE VACATED IN PART; REMANDED.
3