* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 23, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40732

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO AGUILAR, also known as

David Fernandez,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-02-CR-451-1

Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM: *

The court sua sponte issues this supplemental opinion

correcting the initial opinion issued in this case April 19, 2004.

For the reasons stated below, we delete the reference in the first

sentence of the April 19 opinion to the number of year s of

supervised release imposed as a part of defendant’s sentence; wealso strike from the opinion the last sentence thereof reading

“this action is REMANDED for the sole purpose of allowing the

district court to correct the written judgment to reflect that the

term of supervised release is two years” and we likewise strike the

portion of the direction at the end of the opinion reading

“REMANDED FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.” In all

other respects the opinion of April 19, 2004 remains in effect as

issued.

Defendant pl eaded guilty to Count 2 of the Indictment which

charged him with possession with intent to distribute of “more than

50 kilograms but less than 100 kilograms of marihuana, that is

approximately 91 kilograms of marihuana, a Schedule I controlled

substance” in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

The PSR noted that “since the statute of conviction for the instant

offense requires a three-year term of Supervised Release, the

Guideline term applicable in this case is three years. U.S.S.G. §

5D1.2(a)(2) and (b).” No party raised any objection to the

statement in the PSR that the mandatory term of supervised release

was three years. At the sentencing hearing on May 8, the district

court orally imposed sentence, which includ ed 57 months of

confinement fo llowed by two years of supervised release. The

district judge did not then give any reason for imposing two years

of supervised release or any indication that he was aware of what

the PSR said in this respect; nor did t he parties say anything

about the term of supervised release. Section 841(b)(1)(C)provides for a term of imprisonment of not more than twenty years

and also provides “notwithstanding § 3583 of Title 18, any sentence

imposing a term of imprisonment under this paragraph shall . . .

impose a term of supervised release of at least 3 years in addition

to such term of imprisonment. . . .”

As reflected by the docket entry for May 27, 2003, the

district court on that day in the presence of the Assistant United

States Attorney and the attorney for the defendant informed the

parties that the court had erred regarding the supervised release

term of two years because the guideline requires a three year

supervised release term and that the court would sign a judgment

reflecting a three year supervised release term and that there was

no objection by the parties. This is confirmed by a written minute

entry of May 27, 2003 (which was not included in the record on

appeal furnished to this court, but has since been furnished to us

by the district clerk’s office). The judgment signed by the

district court on May 27 and en tered in the docket May 28, 2003,

reflects a term of three years of supervised release. As noted,

this is required by 21 U.S.C. § 841(b)(1)(C). This is the case

even though the offense of conviction is a Class C felony under 18

U.S.C. § 3559(a)(3) and even though 18 U.S.C. § 3583(b)(2) calls

for a term of supervised release of “not more than 3 years” for

Class C felonies. The supervised release provisions of 21 U.S.C.

§ 841 (b)(1)(C) apply “notwithstanding section 3583 of Title 18.”

The provisions of Guideline § 5D1.2(a)(2), stating that for a Class* On our initial consideration of this matter we were misled by

the statement made in the brief of appellant and in the brief of

appellee, each, that the supervised release was for two years, and

neither party makes mention of the three year term stat ed in the

judgment or of the May 27, 2003 minute entry. We observe, however,

that the parties were each represented by different counsel on

appeal than in the trial court. C felony supervised release term should be two years but not more

than three ye ars, is not applicable because subsection (a) is

expressly made “subject to subsection (b).” Section 5D1.2(b)

provides that “the term of supervised release imposed shall not be

less than any statutorily required term of supervised release.” We

also observe that defendant‘s notice of appeal, though filed May

15, 2003, did not deprive the district court of authority to take

the action it did as reflected in the May 27, 2003 minute entry and

the judgment of conviction signed that day and entered May 28,

because under Fed. R. App. P. 4(b)(2) a not ice of appeal filed

after the court announces sentence but before the entry of judgment

is treated as filed “on the date of and after the entry.” *

Our prior opinion of April 19, 2004 is hereby modified as

stated in the first paragraph of this supplemental opinion, and,

pursuant to our April 19, 2004 opinion so modified, the judgment of

the district court is accordingly hereby

AFFIRMED.