USA v. Javier Lumbreras-Trevino

Filing 511080922

Case: 09-40664

Document: 00511080922

Page: 1

Date Filed: 04/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40664 Summary Calendar April 15, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in t iff ­ Appellee v. J A V I E R LUMBRERAS-TREVINO, D e fe n d a n t ­ Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-146-1

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J a v ie r Lumbreras-Trevino pled guilty to illegal reentry following d e p o r ta t io n . He appeals his sentence, arguing that the district court's written ju d g m e n t of sentence conflicts with its oral pronouncement of sentence. The g o v e r n m e n t agrees. A t the sentencing hearing, the district court departed upward from the G u id e l in e s range of two to eight months. The court imposed a two-year term of im p r is o n m e n t , finding that the Guidelines understated Lumbreras-Trevino's
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40664

Document: 00511080922 Page: 2 No. 09-40664

Date Filed: 04/15/2010

c r im in a l history category and his criminal history. However, on page three of t h e statement of reasons attached to the written judgment, the district court c h e c k e d boxes indicating that it had imposed a sentence "below the advisory g u id e l in e s range," pursuant to a "government motion for a sentence outside of t h e advisory guideline system." Because the written judgment is internally inconsistent and conflicts with th e oral pronouncement of judgment, the oral pronouncement controls. See U n ite d States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). The case is remanded for the district court to amend its written judgment to conform to its oral pronouncement of sentence. See id. REM ANDED.

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