UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41280

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERTO DE LA CRUZ,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas CR L-01-689-01 November 8, 2002

Before JONES, SMITH and SILER,* Circuit Judges.

PER CURIAM:**

Roberto de la Cruz (“de la Cruz”) appeals his conviction

for possession of more than 100 kilograms of cocaine with intent to

* United States Court of Appeals for the Sixth Circuit, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, in violation of

(a)(1) and (b)(1)(B) and

. This court AFFIRMS de la Cruz’s conviction but

strikes the final two sentences of the district court’s written

supervised release conditions.

BACKGROUND

In June 2001, de la Cruz pulled a tractor trailer rig

into the United States Border Patrol Checkpoint facility located 15

miles north of Laredo, Texas on IH 35. As the rig entered the

primary inspection area, a drug-sniffing dog detected the presence

of contraband, and de la Cruz was referred to the secondary

inspection area. The seal to the trailer did not correspond to the

bill of lading de la Cruz provided. A search of the trailer

revealed 61 bundles of marihuana, weighing 1,693.40 pounds, hidden

in the trailer. A cellular phone was also found wedged in the

middle of the bundles. De la Cruz admitted that he was hired to

transport the load of marihuana to Dallas, Texas for $20,000,

although he claimed that he believed only 400 pounds of marihuana

was secured in the trailer.

A federal grand jury returned a two-count indictment

charging de la Cruz with (1) conspiracy to possess, with intent to

distribute, more than 100 kilograms of marijuana, in violation of

, 841(a)(1), and 841(b)(1)(B) (Count One); and (2)

possession of more than 100 kilograms of cocaine with intent to

2 distribute, in violation of

(a)(1) and (b)(1)(B) and

(Count Two).

De la Cruz entered a plea of guilty to Count Two. On

October 18 the district court sentenced de la Cruz to seventy-eight

months’ imprisonment in the custody of the Federal Bureau of

Prisons, to run consecutively to a twelve-month sentence for

revocation of probation in another case; a five-year term of

supervised release, to run concurrently with the three-year term of

supervised release imposed in the probation revocation case; a fine

of $1,500; and a mandatory special assessment of $100.

In discussing the terms of supervised release, the

district court orally imposed the following conditions: “And we

will put a drug aftercare condition. You have to avoid narcotics

... [and] I’ll make reasonable payments [of the $1,500 fine] a

condition of supervised release.” The district court then ordered

that these payments be at a rate of $30 per month.

The district court entered its written judgment on

October 25, 2001. The written judgment of conviction and sentence

imposed the following “Special Conditions of Supervision” on de la

Cruz:

The defendant shall participate in a program, inpatient or outpatient, for the treatment of drug and/or alcohol addiction, dependency or abuse which may include, but not be limited to urine, breath, saliva and skin testing to determine whether the defendant has reverted to the use of drugs and/or alcohol. Further, the defendant shall participate as instructed and as deemed necessary by the probation officer and shall comply with all the rules and regulations of the treatment agency until discharged by

3 the Program Director with the approval of the probation officer. 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 drug/alcohol detection and treatment, based on ability to pay as determined by the probation officer.

De la Cruz now appeals his conviction and sentence.

DISCUSSION

De la Cruz argues first that the statute of conviction in

this case –

– is unconstitutional on its face in

light of Apprendi v. New Jersey,

(2000). As he

concedes, his argument is foreclosed by this court’s decision in

United States v. Slaughter,

(5th Cir. 2000), cert.

denied,

(2001).

Second, he argues that the district court reversibly

erred by including, in its written judgment of conviction and

sentence, special conditions of supervised release that were not

orally pronounced at sentencing. At sentencing, the district court

told de la Cruz that it would include in the sentence, as special

conditions of supervised release, “drug aftercare” and avoidance of

narcotics. De la Cruz does not object to the first two sentences of

the written sentence, as he apparently considers them within the

scope of the district court’s oral sentence. He does, however,

object to the final two sentences, arguing that these impose a

separate requirement.

4 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 deter- mine the district court’s true intent.

. De la Cruz argues that the district court’s written

requirement that he submit to and pay for “drug-detection tech-

niques in addition to those performed by the treatment agency”

constitutes a “conflict,” not an “ambiguity.” He cites in support

this court’s on-point but unpublished opinion in United States v.

Ramos, No. 01-40361 (5th Cir. 2002) (unpublished) (holding that

“the special condition imposed in the written judgment is consider-

ably more far-reaching”). He ignores, however, this court’s less

pointed but precedential opinion in United States v. Warden,

(5th Cir. 2002) (holding that a similar discrepancy

between oral and written sentences “create[d], if anything, an

ambiguity”). Fortunately for de la Cruz, this court need not reach

the merits of his argument, as the government “concedes that this

Court’s precedents invalidate the ‘Special Conditions’ not orally

pronounced at sentencing.”

CONCLUSION

As de la Cruz has conceded his Apprendi argument and the

government its Warden argument, this court is left with precious

little to decide. Accordingly, we AFFIRM de la Cruz’s conviction

5 but strike the final two sentences of the district court’s written

supervised release conditions.

6