Case: 18-20788 Document: 00515104496 Page: 1 Date Filed: 09/04/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-20788 FILED Summary Calendar September 4, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRANCISCO JAVIER CASTILLO MORALES, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CR-390-1 Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges. PER CURIAM: * Francisco Javier Castillo Morales challenges his sentence for illegal reentry, in violation of 8 U.S.C. § 1326(a) and punishable under § 1326(b)(1). He asserts: the district court erred by including a special condition of supervised release in the written judgment that was not orally pronounced at sentencing, requiring him to “immediately report to U.S. Immigration and Customs Enforcement and follow all their instructions and reporting * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Case: 18-20788 Document: 00515104496 Page: 2 Date Filed: 09/04/2019 No. 18-20788 requirements until any deportation proceedings are completed”; and our court should, accordingly, vacate the judgment and remand for entry of an amended judgment, removing the special condition. The special condition requiring surrender is reviewed for abuse of discretion. E.g., United States v. Vasquez-Puente, 922 F.3d 700, 703 (5th Cir. 2019); United States v. Rivas-Estrada, 906 F.3d 346, 349 (5th Cir. 2018). In that regard, if “there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls”. Vasquez-Puente, 922 F.3d at 703 (quoting United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003) (per curiam)). “If, however, there is merely an ambiguity between oral and written sentences, then we must look to the intent of the sentencing court, as evidenced in the record[,] to determine the defendant’s sentence.” Id. (quoting Torres-Aguilar, 352 F.3d at 935) (internal quotation marks omitted); see also United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006) (distinguishing “ambiguity” in sentences from “conflicting” oral and written sentences). Although Morales contends the oral pronouncement conflicts with the written sentence, our court has, on similar facts, rejected an identical claim as to the same special condition requiring surrender. See Vasquez-Puente, 922 F.3d at 703–04. Just as here, the district court’s oral pronouncement in Vasquez-Puente did not include the surrender condition, but it was included in the subsequent written judgment, following the same Southern District of Texas’ Standing General Order No. 2017-01. See id. at 702–03. Unlike here, defendant’s presentence investigation report (PSR) failed to include the “specific conditions” at issue. Id. at 702. The special condition nonetheless did “not obviously ‘conflict’ with the district court’s oral pronouncement”; it created, instead, an ambiguity. Id. at 2 Case: 18-20788 Document: 00515104496 Page: 3 Date Filed: 09/04/2019 No. 18-20788 704. The sentencing district court warned defendant, inter alia, he could not legally be present in ...
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