IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30149

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ERIC J. WICKER,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:18-CR-108-1

Before STEWART, DENNIS, and HO, Circuit Judges.

PER CURIAM:*

The attorney appointed to represent Eric J. Wicker has moved for leave 

to withdraw and has filed a brief in accordance with Anders v. California, 386 

U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). 

Wicker has not filed a response. We have reviewed counsel’s brief and the 

relevant portions of the record reflected therein. We concur with counsel’s 

assessment that the appeal presents no nonfrivolous issue for appellate review. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2019

Lyle W. Cayce

Clerk

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No. 19-30149

2

In this circuit, where the oral and written pronouncements vary, it is the 

oral pronouncement of sentence that controls. United States v. Shaw, 920 F.2d 

1225, 1231 (5th Cir. 1991). Generally, when there is such a discrepancy, this 

court remands the case to have the district court amend the written judgment 

to conform to its oral judgment. United States v. Martinez, 250 F.3d 941, 942 

(5th Cir. 2001). In its oral pronouncement, the district court stated as follows

regarding Wicker’s federal sentence:

[It] shall run concurrently [with] any sentence imposed in docket 

number 03-18-0524 of the 19th Judicial District Court, Baton 

Rouge, Louisiana. His sentence shall run consecutively to any 

sentences imposed in docket number 03-15-0863, 09-16-0337 and 

05-18-[0]2671 of the 19th Judicial District Court, Baton Rouge; 

docket number 16-CR-129181s, 17-CR-118432s, and 18-BR050392 of the Baton Rouge City Court, docket number 38760 of the 

23rd Judicial District Court, Gonzales, Louisiana and any 

sentence imposed as a result of the defendant’s arrest by the Baton 

Rouge Police Department for theft and traffic control signals on 

August 3rd, 2018.

These oral instructions, however, were not included in the written 

judgment. The absence of the oral pronouncement from the written judgment 

creates a conflict, insofar as the written judgment “imposes a more burdensome 

requirement than that of the oral pronouncement” by eliminating Wicker’s 

ability to have his federal sentence run concurrently with any state sentence 

stemming from the same underlying conduct as the federal offense. See United 

States v. Flores, 664 F. App’x 395, 398 (5th Cir. 2016) (internal quotation marks 

and citation omitted). We therefore remand for the limited purpose of allowing 

the district court to conform the written judgment with the oral 

pronouncement. See Flores, 664 F. App’x at 399.

 

1 The oral pronouncement contains a typographical error; the docket number should 

read, “5-18-0267.”

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No. 19-30149

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Accordingly, counsel’s motion for leave to withdraw is GRANTED, 

counsel is excused from further responsibilities herein, and the APPEAL IS 

DISMISSED. See 5TH CIR. R. 42.2. The case is REMANDED to the district 

court for the limited purpose of conforming the written judgment to the oral 

pronouncement.

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