USA v. Luis Hernandez-Ortega
UNPUBLISHED OPINION FILED. [11-40768 Remanded ] Judge: TMR , Judge: JES , Judge: CES Mandate pull date is 02/03/2012 for Appellant Luis Hernandez-Ortega [11-40768]
Date Filed: 01/13/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
January 13, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-493-1
Before REAVLEY, SMITH, and STEWART, Circuit Judges.
Luis Hernandez-Ortega (Hernandez) appeals from the judgment imposed
after the district court revoked the term of supervised release that he was
serving in connection with his 2010 illegal reentry conviction. He concedes that
he violated the conditions of his supervised release that prohibited him from
committing another crime and from illegally reentering the United States. He
argues, however, that the written judgment includes a clerical error insofar as
it indicates that he additionally violated the condition of his 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 01/13/2012
requiring that he report immediately to the nearest United States probation
officer upon legally reentering the country. The Government concedes the error.
Our review of the record confirms that whether Hernandez had violated
his supervised release conditions by failing to report was not at issue during the
revocation hearing; indeed, the revocation was based upon a subsequent illegal
reentry, not a legal one. Because the district court made no mention of such a
violation at any point in the revocation hearing, including during its oral
pronouncement of sentence, the oral pronouncement of sentence conflicts with
the written judgment, and the case is REMANDED FOR THE LIMITED
PURPOSE of allowing the district court to conform its written judgment to its
oral pronouncement of sentence. See United States v. Martinez, 250 F.3d 941,
942 (5th Cir. 2001).
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