Case: 14-50422      Document: 00513465878         Page: 1    Date Filed: 04/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50422                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   April 14, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

SAUL GARCIA HERRERA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-291-1


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Saul Garcia Herrera pleaded guilty to possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
Herrera has a previous state-law conviction, occurring when he was only
twelve years old, for sexual indecency with a minor. In sentencing Herrera,
the district court orally pronounced a sentence of 240 months of imprisonment
and three years of supervised release. On appeal, Herrera challenges three


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 14-50422
conditions of supervised release that were not orally pronounced, but
nonetheless appeared in the district court’s later-issued written judgment.
      Two of the three challenged conditions were imposed under the Western
District of Texas’s standing order on supervised release. The first of these
conditions, designated “Standard Condition 14,” requires Herrera to attend sex
offender therapy, but only if he has a prior conviction for a state-law offense
that, had federal jurisdiction existed, could be considered a “sex offense” under
the Sex Offender Notification and Registration Act (“SORNA”). The second of
these conditions, designated “Special Condition 5,” requires that Herrera
submit to random searches of his home and effects, but only if, pursuant to
SORNA, Herrera must register as a sex offender. Finally, the third condition,
designated an “additional condition,” also requires that Herrera attend sex
offender therapy upon release. Unlike Standard Condition 14, this additional
condition is not SORNA-dependent. Furthermore, the additional condition
was not imposed pursuant to the Western District’s standing order on
supervised release.
      Having reviewed the record and considered the various arguments made,
we vacate the supervised release conditions at issue. The government has
conceded that Standard Condition 14 and Special Condition 5 do not apply to
Herrera. Specifically, the government has conceded that, because of Herrera’s
young age at the time of his state-law conviction for sexual indecency with a
minor, that conviction cannot be considered a SORNA offense. See 42 U.S.C.
§ 16911(8) (“The term ‘convicted’ or a variant thereof, used with respect to a
sex offense [under SORNA], includes adjudicated delinquent as a juvenile for
that offense, but only if the offender is 14 years of age or older at the time of the
offense and the offense adjudicated was comparable to or more severe than
aggravated sexual abuse . . . .” (emphasis added)).


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                                 No. 14-50422
      With respect to the “additional condition” requiring sex offender therapy,
we have reviewed all of the circumstances present in this appeal, and conclude
that here we must apply the usual rule—that is, when the written judgment
conflicts with the sentence as orally pronounced, the oral pronouncement
controls. United States v. Martinez, 

, 942 (5th Cir. 2001).
      Accordingly, we VACATE only the three supervised release conditions
challenged, as noted herein. We otherwise AFFIRM the sentence as written.
We REMAND this case to the district court to modify the written judgment in
accordance with this opinion.
                                       VACATED in part; AFFIRMED in part;
                                                             and REMANDED.




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