USA v. Moore

Filing 920070405


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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 4, 2007 Charles R. Fulbruge III Clerk No. 06-20231 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VANQUETTA DENISE MOORE, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-153-1 -------------------Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM:* Vanquetta Denise Moore appeals her sentence. Moore entered guilty pleas to charges of conspiracy to commit mail fraud and social security fraud (Count One) and mail fraud and aiding and abetting (Count Four). The district court sentenced Moore to concurrent terms of 12 months of imprisonment and one day and concurrent terms of three years and five years of supervised release. For the first time on appeal, Moore contends that the imposition of a five-year term of supervised release for her mail 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * No. 06-20231 -2fraud conviction exceeds the statutory maximum sentence. Moore asserts that this error is plain and affects her substantial rights. We "review de novo a sentence that allegedly exceeds the statutory maximum term." 847, 849 (5th Cir. 2004). United States v. Ferguson, 369 F.3d Moore pleaded guilty to conduct that occurred from January 2000 to July 2000 when the offense of mail fraud carried a maximum statutory penalty of five years of imprisonment. See 18 U.S.C. 1341 (2000); United States v. Smith, 869 F.2d 835, 836-37 (5th Cir. 1989) (holding that proper penalty statute is statute in effect at time offense is committed). Thus, Moore was subject to a statutory maximum term of supervised release of three years on the mail fraud conviction. See 18 U.S.C. 3559(a)(4), 3583(b)(2). The district court's oral pronouncement of a supervised release term of three years as to Moore's conspiracy conviction conflicts with the written judgment which provides that the supervised release term is five years. controls. Cir. 2005). Accordingly, we affirm Moore's conviction and affirm her sentence in part. We vacate and remand for resentencing the The oral pronouncement See United States v. Bigelow, 462 F.3d 378, 381 (5th sentence of five years of supervised release as to Moore's conviction for mail fraud and order the correction of the clerical error in the written judgment to conform to the district No. 06-20231 -3court's oral pronouncement of a three-year term supervised release as to Moore's conspiracy conviction. CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART; VACATED AND REMANDED.

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