USA v. Miguel Perez-Hernandez

Filing 920100316

Case: 09-40391

Document: 00511052593

Page: 1

Date Filed: 03/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-40391 Summary Calendar March 16, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. MIGUEL PEREZ-HERNANDEZ Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-676-1

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges. PER CURIAM:* Miguel Perez-Hernandez appeals the sentence imposed following the revocation of his supervised release. Specifically, he appeals the district court's reimposition of a $100 special assessment. Perez-Hernandez argues that the assessment should be stricken from the written judgment because it is contrary to the oral pronouncement and evidence presented at the revocation hearing. He further contends that he is no longer obligated under 18 U.S.C. § 3013(b) to pay the assessment.
*

The Government concedes that the district court lacked

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40391

Document: 00511052593 Page: 2 No. 09-40391

Date Filed: 03/16/2010

authority to reimpose the special assessment and that it should be stricken from the written judgment. A review of the transcript from the revocation hearing reflects that the district court's imposition of the special assessment is contrary to the oral pronouncement and evidence presented at the hearing. Moreover, as the

Government also concedes, the district court lacked authority under 18 U.S.C. § 3583 to reimpose a special assessment. See United States v. Pineda, __F.3d__, No. 08-41301, 2010 WL 199878, at *1 (5th Cir. Jan. 22, 2010). Accordingly, the district court's judgment is REFORMED to omit the $100 special assessment. JUDGMENT AFFIRMED AS REFORMED.

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