United States v. Zaragoza-Nunez

Case: 21-20319 Document: 00516256932 Page: 1 Date Filed: 03/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-20319 March 28, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ricardo Zaragoza-Nunez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-173-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Ricardo Zaragoza-Nunez challenges some of
the conditions of his supervised release imposed following his guilty plea
conviction. He contends—and the government concedes—that there is a
conflict between the oral pronouncement of his sentence and four special
*
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opinion should not be published and is not precedent except under the limited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: 21-20319 Document: 00516256932 Page: 2 Date Filed: 03/28/2022
No. 21-20319
conditions listed in the written judgment. The relevant conditions require
him to (1) participate in an outpatient substance abuse treatment program,
(2) submit to substance abuse testing and refrain from obstructing or
tampering with the testing methods, (3) report to the nearest probation office
within 72 hours if he reenters the United States, and (4) seek documentation
from immigration authorities authorizing him to work in the United States.
As noted, the parties agree that the written judgment conflicts with
the district court’s oral pronouncement. They disagree, however, about the
appropriate standard of review. “When a defendant objects [to a condition
of his supervised release] for the first time on appeal, we usually review only
for plain error.” United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en
banc) (citing Fed. R. Crim. P. 52(b)), cert. denied, 141 S. Ct. 825 (2020).
But, if the defendant “did not have the opportunity [to object before the
district court], we review for abuse of discretion.” United States v. Grogan,
977 F.3d 348, 352 (5th Cir. 2020) (citing United States v. Rivas-Estrada, 906
F.3d 346, 348 (5th Cir. 2018); Diggles, 957 F.3d at 559).
The government acknowledges that the district court did not
pronounce the relevant conditions during sentencing. But the government
claims that plain error review is nonetheless appropriate “because Zaragoza-
Nunez had notice via the PSR Appendix that the district court intended to
impose these four special conditions of supervised release.”
We disagree. Diggles is clear: “[T]he mere existence of [a PSR or other
document proposing conditions] is not enough for pronouncement. The
court must orally adopt the written recommendations when the defendant is
in court.” 957 F.3d at 561 n.5. The district court did not do so here, so
Zaragoza-Nunez did not have an opportunity to object to the conditions. Our
review is, therefore, for abuse of discretion. See id. at 559–61; Grogan, 977
F.3d at 352.
2
Case: 21-20319 Document: 00516256932 Page: 3 Date Filed: 03/28/2022
No. 21-20319
A district court must orally pronounce the sentence. If the oral
pronouncement differs from the written judgment, the oral pronouncement
controls. Diggles, 957 F.3d at 556–57. We are persuaded by Zaragoza-Nunez’s
claims—and the government’s concessions—that the four challenged
conditions in the written judgment impermissibly conflict with the conditions
that the district court orally pronounced. See United States v. Mireles, 471 F.3d
551, 558 (5th Cir. 2006); United States v. Bigelow, 462 F.3d 378, 383 (5th Cir.
2006).
The district court’s judgment is therefore VACATED in part and
REMANDED to the district court for the limited purpose of conforming
the written judgment to the oral pronouncement of sentence.
3