Case: 09-40664    Document: 00511080922         Page: 1    Date Filed: 04/15/2010




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

                                                FILED
                                                                          April 15, 2010
                                    No. 09-40664
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff – Appellee

v.

JAVIER LUMBRERAS-TREVINO,

                                                 Defendant – Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-146-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Javier Lumbreras-Trevino pled guilty to illegal reentry following
deportation. He appeals his sentence, arguing that the district court’s written
judgment of sentence conflicts with its oral pronouncement of sentence. The
government agrees.
        At the sentencing hearing, the district court departed upward from the
Guidelines range of two to eight months. The court imposed a two-year term of
imprisonment, finding that the Guidelines understated Lumbreras-Trevino’s

*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
  Case: 09-40664    Document: 00511080922 Page: 2       Date Filed: 04/15/2010
                                No. 09-40664

criminal history category and his criminal history. However, on page three of
the statement of reasons attached to the written judgment, the district court
checked boxes indicating that it had imposed a sentence “below the advisory
guidelines range,” pursuant to a “government motion for a sentence outside of
the advisory guideline system.”
      Because the written judgment is internally inconsistent and conflicts with
the oral pronouncement of judgment, the oral pronouncement controls. See
United States v. Martinez, 

, 942 (5th Cir. 2001).
      The case is remanded for the district court to amend its written judgment
to conform to its oral pronouncement of sentence. See