*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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40542

USDC No. 7:08-CR-37-ALL

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN RICARDO GALVAN-RODRIGUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:08-CR-37

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

TheFederalPublic Defender appointed to represent Juan Ricardo GalvanRodriguez has moved for leave to withdraw and has filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967). Galvan-Rodriguez has filed a

response. An independent review of the record and counsel’s brief reveals a

potentially nonfrivolous issue for appeal, specifically, whether the case should

be remanded for correction of the judgmentin light of a discrepancy between the

oral pronouncement of sentence and the written judgment. At sentencing, the

district court stated thatit would recommend that Galvan-Rodriguez’s 77-month

United States Court of Appeals

Fifth Circuit

F I L E D

January 27, 2009

Charles R. Fulbruge III

Clerk
No. 08-40542

2

sentence run concurrently with any sentence that Galvan-Rodriguez was facing.

However, the district court did not include this recommendation in its written

judgment. 

Counsel acknowledges the discrepancy between the oral pronouncement

of sentence and the written judgment, but counsel asserts thatthe issue does not

constitute reversible plain error. Although normally issues raised for the first

time on appeal are reviewable only for plain error, review of the issue is not

necessarily limited to plain error because Galvan-Rodriguez did not have the

opportunity to object to the written judgment at sentencing. See United States

v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006); see also United States v. Vega, 332

F.3d 849, 851 n.1 (5th Cir. 2003). 

“In this Circuit, it is well settled law that where there is any variation

between the oral and written pronouncements of sentence, the oral sentence

prevails.” United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir.1991).

Ordinarily, when there is a discrepancy between the oral pronouncement of

sentence and the written judgment, the case is remanded to have the district

court amend the written judgmentto conform to its oral judgment at sentencing.

See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

Notwithstanding that the oral pronouncement prevails and Galvan-Rodriguez

did not receive the benefit of the concurrent sentence recommendation, counsel

contends that no reversible plain error occurred here. Counsel’s one-paragraph

argument does not convince us that a nonfrivolous issue is not presented here.

Given that our precedent holds that oral pronouncements prevail, we find that

there is a nonfrivolous issue for appeal. We view counsel’s argument more akin

to a harmless error argument as opposed to a nonfrivolous analysis. 

Accordingly, we DENY the motion to withdraw and in the interest of

efficiency REMAND to the district court with instructions to correct the

judgment with respect to the court’s oral pronouncement and have the district

court clerk file the corrected judgment with the clerk of this court. We retain
No. 08-40542

3

jurisdiction, and upon the district court’s compliance, appointed counsel shall

be able to file a new appellate brief or file a new Anders brief such as the case

warrants. Also, Galvan-Rodriguez’s response shall remain on file with respect

to any new appellant’s brief or Anders brief that might be filed.