USA v. Hernandez-Zuniga

Filing 920070103

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 3, 2007 Charles R. Fulbruge III Clerk

No. 06-41163

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARTURO HERNANDEZ-ZUŅIGA, Defendant - Appellant.

-------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 2:98 CR00360-001 -------------------Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges. PER CURIAM:* On May 18, 1999, Arturo Hernandez-Zuņiga was sentenced to seventy-two months' imprisonment and a four year term of supervised release following his conviction for possession with the intent to distribute approximately two kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).1 Hernandez-Zuņiga began his On June 30, 2006, the

term of supervised release on July 3, 2004.

government filed a petition for revocation of supervised release 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. This Court affirmed Hernandez-Zuņiga's conviction and sentence in United States v. Hernandez-Zuņiga, 215 F.3d 483 (5th Cir. 2000).
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alleging that Hernandez-Zuņiga had failed to (1) report to his probation officer, and (2) participate in a drug treatment program. Both actions were required by the conditions of his supervised release. On July 18, 2006, Hernandez-Zuņiga pled true to the

allegations and the district court revoked his supervised release. The district court imposed a new sentence of seven months' imprisonment to be followed by fifty-three months of supervised release. In addition, the district court orally imposed electronic monitoring as a special condition of supervised release. The

district court did not mention any form of home detention during sentencing. The written judgment, however, imposed a special

condition of six months of home detention with the possibility of electronic monitoring. Because of the discrepancy between the

written judgment and the oral pronouncement of his sentence, Hernandez-Zuņiga appeals the inclusion of home confinement as a condition of his supervised release. Since Hernandez-Zuņiga had no opportunity at sentencing to consider or object to the special condition of home confinement, our standard of review is for abuse of discretion. v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). When a written judgment conflicts with the oral pronouncement of sentencing, the oral pronouncement controls. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). United States v. United States

If, however, there is

merely an ambiguity between the two sentences, we must look to the district court's intent to determine the sentence. Id. Both

Hernandez-Zuņiga and the government agree that the written judgment 2

is in conflict with the oral pronouncement of Hernandez-Zuņiga's sentence. Furthermore, both parties agree that the written

judgment should be amended to unambiguously reflect the oral imposition of electronic monitoring without any home detention. We agree. Therefore the sentence is VACATED in PART and this matter

is REMANDED to the district court with instructions to conform the written judgment to the oral pronouncement at sentencing,

consistent with this opinion.

SENTENCE VACATED IN PART; REMANDED.

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