IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20061

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RODOLFO SALDANA-CORDERO,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:17-CR-549-1

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges. 

PER CURIAM:*

The Federal Public Defender appointed to represent Rodolfo SaldanaCordero on appeal has filed a motion to withdraw and a brief that relies on 

Anders v. California, 386 U.S. 738 (1967). Saldana-Cordero has not filed a 

response. A review of counsel’s brief and the record reveals the following 

nonfrivolous appellate issue: whether there is a conflict with respect to a 

special condition of supervised release requiring Saldana-Cordero to seek 

documentation authorizing him to work in the United States that is included 

 

* 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

August 17, 2018

Lyle W. Cayce

Clerk

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No. 18-20061

2

in the written judgment but was not orally pronounced by the district court at 

sentencing.

Generally, because a defendant has no opportunity at sentencing to 

object to a special condition of supervised release later imposed in the written 

judgment, this court reviews the issue for abuse of discretion. See United 

States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). As a result of a defendant’s 

constitutional right to be present at sentencing, the oral pronouncement of 

sentence controls over the written judgment where there is a conflict between 

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

accord United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). “If 

the written judgment broadens the restrictions or requirements of supervised 

release from an oral pronouncement, a conflict exists,” and “the appropriate 

remedy is remand to the district court to amend the written judgment to 

conform to the oral sentence.” United States v. Mireles, 471 F.3d 551, 558 (5th 

Cir. 2006). There is no conflict if the judgment includes supervised release 

conditions that are mandatory, standard, or recommended by the Sentencing 

Guidelines, even if the conditions were not orally pronounced at sentencing. 

See Torres-Aguilar, 352 F.3d at 938. However, a conflict exists if there is a 

special condition of supervised release that was not included in the oral 

pronouncement of sentence. See id. at 936.

Counsel acknowledges the discrepancy between the oral pronouncement 

of sentence and the written judgment in this case, but we are not persuaded 

that the issue is frivolous or that the discrepancy is a mere clerical error rather 

than an actual conflict. See United States v. Buendia-Rangel, 553 F.3d 378, 

379 (5th Cir. 2008); United States v. Slanina, 359 F.3d 356, 357-58 (5th Cir. 

2004). In light of the foregoing, we conclude that there is a nonfrivolous issue 

for appeal.

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No. 18-20061

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We therefore DENY the motion to withdraw without prejudice and, in 

the interest of judicial economy, REMAND to the district court with 

instructions to amend the written judgment to conform to the oral sentence 

and to have the amended judgment filed in the record in this appeal. We retain 

jurisdiction over this appeal, and upon the district court’s amendment of the 

judgment, counsel shall file a new appellate brief or a new Anders brief as is 

warranted.

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