UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-40361

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAYMOND ALVIN RAMOS,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (C-00-CR-320-1) March 4, 2002

Before SMITH and DeMOSS, Circuit Judges, and DUPLANTIER, District Judge.*

PER CURIAM:**

Defendant-Appellant, Raymond Alvin Ramos (Ramos), was

convicted under

(a)(1) and (b)(1)(D) for possession

of less than 50 kilograms of marijuana with the intent to

* District Judge for the Eastern District of Louisiana, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. distribute. Ramos also was convicted under

(a)(1)

and (b)(1)(A) for possession of more than five kilograms of cocaine

with the intent to distribute. We AFFIRM Ramos' convictions.

However, we modify his sentence concerning the special conditions

set forth in the district court's written judgment but not orally

pronounced at sentencing.

BACKGROUND

On August 23, 2000, Ramos attempted to cross the Sarita

checkpoint in Kingsville, Texas. Ramos, who was driving a pick-up

truck, was accompanied by a female passenger later identified as

Rana Dababneh (Dababneh). Border Patrol Agent Marcus Harrington

asked Ramos and Dababneh about their citizenship. While Agent

Harrington was speaking with Ramos and Dababneh, Border Patrol

Agent Jaime Hicks advised Agent Harrington that an inspection of

the truck was necessary because the narcotics canine had alerted to

the truck before it had even come to a stop. During the search,

the agents located approximately 45 kilograms (99 pounds) of

marijuana and 10 kilograms (23 pounds) of cocaine in a hidden

compartment within the gas tank. Ramos claimed that, although he

knew he was transporting marijuana, he did not know he was

transporting cocaine.

On September 19, 2000, a grand jury indicted Ramos on one

count of possession with the intent to distribute less than 50

2 kilograms of marijuana under

(a)(1) and (b)(1)(D)

(Count 1). Ramos was also indicted on one count of possession with

the intent to distribute more than five kilograms of cocaine under

(a)(1) and (b)(1)(A) (Count 2). Ramos was tried

before a jury from November 6 through November 8, 2000. Following

the trial, the jury was unable to reach a unanimous verdict on

either count.

Thereafter, the government and Ramos entered into a plea

agreement under which Ramos agreed to plead guilty to Count 1 for

possession with the intent to distribute the marijuana. In

addition, Ramos agreed to cooperate with the government. Count 1

carried a maximum term of 60 months imprisonment. In exchange for

that plea agreement, the government agreed to move to dismiss Count

2 for possession with the intent to distribute the cocaine, which

carried a mandatory minimum sentence of 120 months imprisonment.

Without first obtaining a presentence report, however, the

district judge rejected the plea agreement as being unduly lenient.

The judge stated that even if Ramos did not know he was

transporting cocaine, he could be convicted on the cocaine count if

he knew that he was carrying a controlled substance. Urging the

judge to accept the proposed plea agreement, the government argued

that although Ramos was subject to the mandatory minimum sentence

of 120 months imprisonment on Count 2, based on the cooperation

provision of the proposed plea agreement, the government would move

for a downward departure from Ramos' guideline sentence if he was

3 convicted on that count. The government indicated that it intended

to request at least a 50 percent reduction in Ramos' sentence. If

granted, Ramos could be sentenced to approximately 60 months

imprisonment on Count 2, which was the same sentence he would have

received if he were allowed to plead guilty to only Count 1. The

judge, nevertheless, was not persuaded.

A second jury trial took place on January 8 and 9, 2001. On

January 9, the jury returned a verdict finding Ramos guilty of both

charges. On March 29, 2001, the district court sentenced Ramos to

a term of 144 months imprisonment and a five year term of

supervised release on Count 2 for possession with the intent to

distribute the cocaine. Additionally, the court sentenced Ramos to

a concurrent 60 month term of imprisonment and three years of

supervised release on Count 1 for possession with the intent to

distribute the marijuana.

DISCUSSION

Ramos now appeals his convictions and sentences. First, Ramos

contends that the district court abused its discretion in rejecting

the plea agreement offered by the government. Second, Ramos

complains that the district court committed plain error by failing

to state at the sentencing hearing the reasons for imposing a

particular sentence within a Sentencing Guideline range that

exceeded 24 months. Third, Ramos argues that the district court

4 erred by including, in its written judgment of conviction, special

conditions of supervised release that were not orally pronounced at

sentencing.

Having reviewed the entire record of this case, and having

fully considered the parties' respective briefing on the issues in

this appeal, we affirm the district court's judgment with respect

to the first two issues raised. However, we find that the district

court erred by including, in its written judgment of conviction,

special conditions of supervised release that were not orally

pronounced at sentencing.

First, we find that the district court did not abuse its

discretion in rejecting the plea agreement offered by the

government. Ramos argues that under Apprendi v. New Jersey,

(2000), the type of drug possessed is an element of a

section 841(a)(1) offense and, therefore, the government must prove

that he had the specific intent to possess cocaine. However, this

Court has consistently held that the specific intent requirement

under section 841(a) is knowledge that the substance possessed is

a controlled substance, not knowledge of the specific type of

controlled substance possessed. United States v. Valencia-

Gonzales,

(5th Cir. 1999); United States v.

Cartwright,

(5th Cir. 1993); United States v.

Fragoso,

(5th Cir. 1992). Apprendi does not

require this Court to change its reading of the statute.

5 Second, the district court did not commit plain error by

failing to state at the sentencing hearing the reason for imposing

a particular sentence within a Sentencing Guideline range that

exceeded 24 months. Title

(c)(1) provides: “The

court, at the time of sentencing, shall state in open court the

reasons for its imposition of the particular sentence, and, if the

sentence–is of the kind, and within the range, described in

subsection (a)(4) and that range exceeds 24 months, the reason for

imposing a sentence at a particular point within the range.”

Ramos' sentencing range was 135 to 168 months. The district court

orally imposed a 144 month term of imprisonment. The

“Imprisonment” section of the written judgment imposes the same 144

month term of imprisonment. However, the “Statement of Reasons”

section of the written judgment states that the term of

imprisonment is 135 months.

Ramos asserts that the district court failed to comply with

section 3552(c)(1), and that the written explanation contained in

the “Statement of Reasons” section of the written judgment does not

satisfy the statute's requirements. However, based on the

transcripts of the court's oral colloquy during Ramos' sentencing

hearing, it is clear that the district court properly sentenced

Ramos to 144 months of imprisonment and stated orally the reasons

for imposing the particular sentence. The only logical conclusion

for the discrepancy that Ramos refers to, is that the numeral “135"

in the “Statement of Reasons” section of the written judgment is

6 merely a clerical error. We find that such a clerical error does

not create doubts as to the period of incarceration the district

court intended to impose, and that the error did not affect his

substantial rights.

However, we do find that the district court erred by

including, in its written judgment of conviction, special

conditions of supervised release that were not orally pronounced at

sentencing. At the sentencing hearing, the district court imposed

concurrent sentences of supervised release on Ramos. In so doing,

the court imposed the following special conditions: “In addition

to the fine and payment, [Ramos] shall participate in a treatment

for drug and alcohol abuse and addiction.” However, the written

judgment of conviction adds to this: “The defendant shall further

submit to drug detection techniques in addition to those performed

by the treatment agency, as directed by the probation officer. The

defendant will incur costs associated with such monitoring, based

on ability to pay as determined by the probation officer.”

In United States v. Martinez,

(5th Cir.

2001), this Court concluded that “when there is a conflict between

a written sentence and an oral pronouncement, the oral

pronouncement controls. If, however, there is merely an ambiguity

between the two sentences, the entire record must be examined to

determine the district court's true intent.” In the case at hand,

the oral sentence imposed a special condition of supervised release

7 requiring Ramos to participate “in a treatment for drug and alcohol

abuse and addiction.” The special condition imposed in the written

judgment is considerably more far-reaching. It imposes not only

“treatment for drug and alcohol abuse and addiction,” but also a

separate requirement that the defendant submit to drug testing in

addition to that performed by the treatment agency in the course of

the drug treatment program. Thus, there is a conflict between the

oral and written pronouncements of Ramos' sentence.

Where there is a conflict between the oral and written

sentences, the oral sentence prevails.

Therefore, we excise

the portion of the written sentence that states: “The defendant

shall submit to drug detection techniques in addition to those

performed by the treatment agency, as directed by the probation

officer. The defendant will incur costs associated with such

monitoring, based on ability to pay as determined by the probation

officer.”

CONCLUSION

We hold that the district court did not abuse its discretion

in rejecting the plea agreement offered by the government.

Furthermore, the district court did not commit plain error by

failing to state at the sentencing hearing the reason for imposing

a particular sentence within a Sentencing Guideline range that

exceeded 24 months. However, we hold that the district court erred

8 by including special conditions of supervised release that were not

orally pronounced at sentencing. We therefore modify Ramos'

sentence to reflect this fact by excising those special conditions.

9