UNITED STATES COURT OF APPEALS For the Fifth Circuit

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No. 95-20193 Summary Calendar ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MIGUEL ANGEL AGUILAR,

Defendant-Appellant.

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Appeal from the United States District Court For the Southern District of Texas (CR-H-94-285-1) ____________________________________________________ November 24, 1995

Before DAVIS, BARKSDALE, DeMOSS Circuit Judges. PER CURIAM:1

Aguilar pleaded guilty to conspiracy and possession with

intent to distribute cocaine. His sentence includes 135 months'

imprisonment and a fine of $10,000 to be taken only from 50% of his

prison earnings.

Aguilar appeals the fine portion of his sentence on the ground

that the fine is indeterminate and contingent upon his prison

earnings. He also asserts that the district court erred by

modifying his sentence when he was not present. We find both

1 Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. arguments to be without merit and AFFIRM.

At the sentencing hearing, the district court found that

although Aguilar did not have the present ability to pay a fine, he

could pay a fine if he worked in prison. Accordingly, the district

court ordered Aguilar to pay 50 percent of his prison earnings as

a fine.

Aguilar correctly notes that the district court did not state

a determined fine amount at the sentencing hearing. However, in

its written judgment, the district court corrected its error

pursuant to Federal Rule of Criminal Procedure 35(c) and imposed a

fine of "50% of monthly prison earnings while incarcerated, not to

exceed $5,000 per Count ($10,000 total)."

As a result of the district court's correction, the fine is

sufficiently determinate. It is limited to $10,000 which can be

taken only from 50% of Aguilar's prison earnings. If 50% of his

prison earnings over the course of 135 months is less than $10,000,

that is all he must pay. Any remaining indeterminacy works only in

Aguilar's favor because it excuses him from having to pay the

balance of the $10,000 upon his release.

Next Aguilar argues that because there is a discrepancy

between the written judgment and the oral pronouncement of

sentence, the oral sentence must prevail. This, he argues, makes

the sentence indeterminate and contingent and requires us to vacate

the sentence and remand it to the district court. This argument is

without merit and ignores the fact that the rule that oral

pronouncements of a sentence prevail over written judgments only

applies to situations where the two actually conflict. Chapman v.

2 United States,

(5th Cir. 1961); United States v.

Daddino,

(7th Cir. 1993). Where, as in the instant

case, the written judgment clarifies the oral pronouncement rather

than conflicting with it, the written judgment will be upheld.

Finally, Aguilar argues that even if this court finds that the

district court corrected its error in the subsequent written

judgment, the case should still be remanded for resentencing so

that he will be afforded his right to be present during sentencing.

See United States v. Behrens,

(1963). However,

we find that Aguilar's presence at the time of the district court's

correction was not required because the modification of the

sentence did not make the sentence more onerous. See United States

v. Moree,

(5th Cir. 1991). The district

court's written judgment placed a limit on how much Aguilar would

have to pay. A fine of $10,000 taken only from 50% of Aguilar's

prison earnings is not more onerous than the fine of 50% of all

prison earnings which was imposed while Aguilar was present. For

these reasons, the judgment of the district court is AFFIRMED.

3