USA v. Sergio Rosas-Erives

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USA v. Sergio Rosas-Erives

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Case: 10-50131

Document: 00511216354

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50131 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. S E R G I O ROSAS-ERIVES, also known as Sergio Evives, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:09-CR-2742-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* S e r g io Rosas-Erives (Rosas) appeals the sentence imposed following his g u i l t y plea conviction for illegal reentry following a previous removal. Rosas a r g u e s that the district court's written judgment of sentence conflicts with its o r a l pronouncement of sentence. The Government agrees. At the sentencing hearing, the district court imposed a supervised release t e r m of two years. However, the written judgment reflects a three-year term of s u p e r v is e d release. Because the written judgment in this case conflicts with the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-50131

Document: 00511216354 Page: 2 No. 10-50131

Date Filed: 08/26/2010

o r a l pronouncement of judgment, the oral pronouncement controls. See United S ta te s v. Mireles, 471 F.3d 551, 557-58 (5th Cir. 2006); United States v. Martinez, 2 5 0 F.3d 941, 942 (5th Cir. 2001). Accordingly, the case is remanded for the d i s t r ic t court to amend its written judgment to conform to its oral p r o n o u n c e m e n t of sentence. See Mireles, 471 F.3d at 558; Martinez, 250 F.3d at 942. T h e Government's unopposed motion for amendment of the judgment to m o d ify the term of supervised release and for summary affirmance in lieu of filin g an appellee's brief is granted in part and denied in part. Given its position in this case, the Government need not file an appellee's brief. To the extent that t h e Government requests that this court modify Rosas's term of supervised r e le a s e without a remand to the district court to amend the written judgment, t h e Government's motion is denied. The Government's alternative motion for an e x t e n s io n of time to file an appellee's brief is denied as moot. REMANDED FOR AMENDMENT OF JUDGMENT AND AFFIRMED IN A L L OTHER RESPECTS; MOTION TO AMEND JUDGMENT WITHOUT R E M A N D DENIED; MOTION FOR SUMMARY AFFIRMANCE GRANTED E X C E P T AS TO MATTER REMANDED; MOTION FOR EXTENSION OF TIME D E N I E D AS MOOT.

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