USA v. Joanne Upton
UNPUBLISHED OPINION FILED. [12-50703 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 01/20/2015 for Appellant Joanne Michelle Upton; granting in part and denying in part motion to vacate the judgment of the district court filed by Appellee USA [7743108-2]; denying as moot motion to extend time to file appellee's brief filed by Appellee USA [7743108-3]; granting motion for summary affirmance filed by Appellee USA [7743108-4] [12-50703]
Date Filed: 12/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
December 30, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOANNE MICHELLE UPTON,
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Pursuant to a plea agreement, Joanne Upton pleaded guilty of aiding
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 12/30/2014
and abetting the importation of 100 kilograms or more but less than 1,000
kilograms of marihuana into the United States. She claims that her sentence
should be vacated in part and remanded to allow the district court to conform
the written judgment to its oral pronouncement relative to two special conditions of supervised release.
More specifically, as to the travel restriction, Upton contends that (1) the
prohibition against “resid[ing]” within the enumerated judicial divisions
should be deleted, and (2) language should be added to provide that she may
seek permission from the probation officer to travel within the divisions. As
for the restriction on contact with others, Upton contends that the written condition should be modified to reflect that it applies only to Jody Benningfield
and Natalie Benningfield, not all of Upton’s codefendants. In its unopposed
motion to modify the written judgment, the government agrees that the written judgment should be amended to conform to the oral pronouncement.
The record supports the parties’ assertion that there is a conflict between
the oral pronouncement of sentence and the written judgment as outlined
above; thus, the oral pronouncement controls. United States v. Mireles, 471
F.3d 551, 557−58 (5th Cir. 2006); United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001). Accordingly, this matter is REMANDED for the district court
to amend its written judgment to conform to its oral pronouncement of sentence. See Mireles, 471 F.3d at 558; Martinez, 250 F.3d at 942.
The Government’s unopposed motion to modify the written judgment is
GRANTED in part and DENIED in part.
To the extent the government
requests that the judgment be affirmed, the motion is granted. To the extent
the government requests this court to modify the sentence without a remand,
the motion is denied. The government’s alternative motion for an extension of
time to file its brief is DENIED as moot.
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