United States v. Carlos Vasquez-Puente
Opinion
Carlos Vasquez-Puente appeals two special conditions of supervised release in his written judgment, arguing they conflict with the sentence orally pronounced by the district court. Finding no abuse of discretion, we affirm.
*702 I.
Vasquez-Puente pleaded guilty to being unlawfully found in the United States after a previous deportation in violation of
The district court gave Vasquez-Puente a low-end prison sentence of 51 months. The court also imposed "a 3-year term of supervised release," explaining this was needed "because ... in the PSR it indicates how that after that last removal, you remained in Mexico for only about one month." The court explicitly warned Vasquez-Puente that he had been previously deported and that therefore he "should understand certainly just from that that you can't be [in the United States]." The court also admonished him that, "[i]f you are deported, it will be without active supervision[,] but if you are in the country, you're to comply with all the standard conditions adopted by the Court."
The court's subsequent written judgment imposed on Vasquez-Puente the following "special conditions" of supervision (formatted for ease of reading):
[1] You must surrender to U.S. Immigration and Customs Enforcement and follow all [its] instructions and reporting requirements until any deportation proceedings are completed.
[2] If you are ordered deported from the United States, you must remain outside the United States unless legally authorized to reenter.
[3] If you reenter the United States, you must report to the nearest probation office within 72 hours after you return.
These specific conditions, however, did not appear in Vasquez-Puente's PSR. Nor did the district court expressly enumerate them when orally pronouncing sentence.
Vasquez-Puente appealed, arguing that the first and second special conditions in the written judgment conflict with the oral sentence and therefore must be excised. 1
*703 II.
We review imposition of special conditions for abuse of discretion when the district court does not "orally enumerate each special condition" and the defendant therefore "has no meaningful opportunity to object."
United States v. Rivas-Estrada
,
III.
Given a defendant's constitutional right to be present at sentencing, "when there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls."
United States v. Torres-Aguilar
,
In general, a conflict exists "[i]f the written judgment broadens the restrictions or requirements of supervised release from an oral pronouncement."
United States v. Mudd
,
Vasquez-Puente contends there is a conflict between the district court's oral pronouncement and its written judgment. Specifically, he points to the first two special conditions in the written judgment: (1) that he surrender to immigration authorities until deported (the "surrender condition"), and (2) that he remain outside the United States until authorized to reenter (the "no-reentry condition"). Vasquez-Puente argues these conditions were not pronounced orally at sentencing and therefore must be excised from the written judgment.
A.
We first address the surrender condition-namely, that Vasquez-Puente "surrender to U.S. Immigration and Customs Enforcement and follow all [its] instructions and reporting requirements until any deportation proceedings are completed." Vasquez-Puente contends, and the government concedes, that this is not a standard or mandatory condition, but rather a special condition included in the Southern District of Texas' standing General Order 2017-01.
See
In re Conditions of Prob. and Supervised Release
, Gen. Order No. 2017-01 (S.D. Tex. Jan. 6, 2017);
see also
United States v. Vasquez-Ruiz
,
*704
requirement is not standard, mandatory, or guidelines-recommended, but is instead a "permissive special condition set forth in
We have recognized in numerous unpublished opinions that the district court's failure to orally enumerate a surrender condition (like the one at issue here) may create a conflict with the written judgment, requiring excision of the surrender condition from the written judgment.
See, e.g.,
United States v. Cepeda-Olguin
,
Following those principles, we find ambiguity-rather than conflict-between Vasquez-Puente's oral and written sentences. The special condition that Vasquez-Puente surrender to immigration officials does not obviously "conflict" with the district court's oral pronouncement.
Cf., e.g.,
Mireles
,
Our review of the record convinces us that the surrender condition is consistent with the district court's intent that Vasquez-Puente be deported after serving his prison term. At the sentencing hearing, the district court repeatedly warned Vasquez-Puente that, because he had been deported before, he could not legally be present in the United States. Indeed, the court imposed three years of supervised release specifically because, when Vasquez-Puente was last deported, he remained outside the country "for only about one month." Moreover, Vasquez-Puente's attorney explained that he had talked with his client on several occasions about not returning to the United States because the "sentences are just going to get higher and higher." And Vasquez-Puente himself apologized to the court for illegally entering the country and promised, "I'm not coming back." 3
The record thus clarifies that the district court intended Vasquez-Puente to be deported following his prison term.
See, e.g.,
Torres-Aguilar
,
B.
We turn to the no-reentry condition-namely that, following deportation, Vasquez-Puente "must remain outside the United States unless legally authorized to reenter." We disagree with Vasquez-Puente that inclusion of this special condition in the written judgment creates a conflict with the district court's oral pronouncement. The no-reentry condition merely restated the mandatory condition that Vasquez-Puente "must not commit another federal ... crime." We have held that "the [written] judgment's inclusion of conditions that are mandatory, standard, or recommended by the Sentencing Guidelines does not create a conflict with the oral pronouncement."
Torres-Aguilar
,
AFFIRMED
Vasquez-Puente does not challenge the third special condition that, upon reentering the United States, he must report to the nearest probation office within 72 hours.
See also, e.g.,
United States v. Alvarez
, No. 17-40900,
Our conclusion is not changed by the district court's statement that "[i]f [Vasquez-Puente is] deported, it will be without active supervision." That comment "creates, if anything, an ambiguity" which we resolve by examining the overall record to find "the intent of the sentencing court."
Warden
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Carlos VASQUEZ-PUENTE, Defendant-Appellant
- Cited By
- 26 cases
- Status
- Published