Case: 17-41002      Document: 00514629506         Page: 1    Date Filed: 09/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 17-41002                               FILED
                                                                          September 5, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff - Appellee

v.

RAFAEL CEPEDA-OLGUIN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:17-CR-696-1


Before KING, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Rafael Cepeda-Olguin pleaded guilty to and was convicted of entering
the United States after previous deportation in violation of 8 U.S.C. § 1326(a)
and (b). At sentencing, the district court orally imposed standard conditions of
supervised release and one special condition irrelevant to this appeal. But in
its written judgment, the district court imposed two conditions of supervised
release at issue on appeal: “[1] You must surrender to U.S. Immigration and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41002
Customs Enforcement and follow all [its] instructions and reporting
requirements until any deportation proceedings are completed. [2] If you are
ordered deported from the United States, you must remain outside the United
States unless legally authorized to reenter.”
       Cepeda-Olguin appealed, arguing that these conditions conflict with the
district court’s oral pronouncement and are therefore improper.                    Because
Cepeda-Olguin did not have an opportunity to comment on or object to the
allegedly additional conditions at sentencing, we review for an abuse of
discretion. United States v. Bigelow, 

, 381 (5th Cir. 2006). 1
       When conditions in a written judgment and those pronounced orally at
sentencing conflict, the oral pronouncements control. United States v. Torres-
Aguilar, 

, 935 (5th Cir. 2003). In general, a conflict exists when a
written judgment broadens the conditions orally pronounced at sentencing.
United States v. Mudd, 

, 480 (5th Cir. 2012). No conflict exists
when the written judgment includes standard conditions, which may be
adopted by a district court through general order, even if they are not orally
pronounced at sentencing. See 

. However, “if
the district court fails to mention a special condition at sentencing, its
subsequent inclusion in the written judgment creates a conflict that requires
amendment of the written judgment to conform with the oral pronouncement.”
United States v. Vega, 

, 852–53 (5th Cir. 2003) (per curiam); see



       1  The Government argues that plain-error review applies because an appendix to the
presentence reported notified Cepeda-Olguin that the additional conditions might apply, but
he did not object. At sentencing, no mention was made of these potential additional
conditions. Cepeda-Olguin thus did not have “a meaningful opportunity to object to [them]
at his sentencing hearing,” and an abuse-of-discretion standard applies. United States v.
Vasquez-Ruiz, 702 F. App’x 241, 242 (5th Cir. 2017) (per curiam); see also Ballard v. Burton,

, 401 & n.7 (5th Cir. 2006) (“An unpublished opinion issued after January 1,
1996 is not controlling precedent, but may be persuasive authority.” (citing 5TH CIR. R.
47.5.4.)).
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                                 No. 17-41002
also 

–81 (reviewing for an abuse of discretion and
vacating a special condition where the district court referenced “all the other
terms and conditions” but failed to identify specific special conditions).
      In this case, the first additional condition in the written judgment
conflicts with the oral pronouncements at sentencing. We have previously
concluded that the addition of a condition to surrender to immigration officials
after release from prison conflicts with oral pronouncements stating no such
requirement where the district court had not adopted it as a standard
condition. See, e.g., United States v. Zepeda-Zalaberry, 458 F. App’x 342, 343
(5th Cir. 2012) (per curiam); United States v. Vasquez-Parrales, 457 F. App’x
390, 391 (5th Cir. 2012) (per curiam); United States v. Chinchilla-Comelly, 456
F. App’x 463, 464 (5th Cir. 2012) (per curiam). The Southern District of Texas’s
General Order No. 2017-01 lists the first condition as a special condition that
a sentencing judge may apply, not as a standard condition.             See In re
Conditions of Prob. and Supervised Release, Gen. Order No. 2017-01 (S.D. Tex.
Jan. 6, 2017). Accordingly, the first condition should be excised from the
written judgment.
      The second additional condition, however, does not conflict.             At
sentencing, the district court admonished Cepeda-Olguin that he must comply
with all the standard conditions of supervised release, which included that he
not commit another federal, state, or local crime. That standard condition
necessarily includes the second additional condition that Cepeda-Olguin not
break the law by entering the country illegally. See 8 U.S.C. § 1326. The
second condition thus does not conflict with the oral pronouncement because it
does not broaden the conditions imposed at sentencing. See, e.g., 

–54.
      For the foregoing reasons, we VACATE the sentence in part and
REMAND the case to the district court for the limited purpose of amending the
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written judgment to excise the first additional condition.




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