### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10545

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. JUAN CARLOS RODRIGUEZ-BARAJAS, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:10-CR-81-1

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Ju an C arlo s Ro dri gu e z - B ar a j a s ap p e al s f

ollowing his guilty plea convictio n for illegal re-entry after deportation. He contends that two special conditions of supervised release imposed in the district court’s written judgment conflict with the oral pronouncement of his sentence. The Government concedes error on one of the conditions. When a written entry of judgment conflicts with the oral pronouncement of sentence made at a sentencing hearing, the oral pronouncement controls and U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 6, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-10545 Document: 00511946416 Page: 1 Date Filed: 08/06/2012No. 11-10545

the written j u d g m e n t must be conformed to the oral pronouncement. United St a t e s v . Bigelow , 462 F.3d 378, 381 (5th Cir. 2006). If the difference between the written and oral judgments merely creates an ambiguity, we may examine the entire record to determine the intent of the sentencing court. United States v. Martinez , 250 F.3d 941, 942 (5th Cir. 200 1). The district court here orally ordered as a special condition of supervised release that Rodriguez-Barajas “participate i n a p rogram approved by the United States Probation Office for t h e t r e atment of narcotic, drug, or alcohol dependency

. ” The written judgment ordered that Rodriguez-Barajas also “abstain from the use of alcoho l a n d/o r all other intoxicants during and after

c o m pletion of treatment.” Rodriguez-Barajas argues that there is a conflic t because the oral pronouncement did not include the abste n t i o n p rovision or require that he successfully complete treatment; therefore, he asserts that it is possible that he could participate in an alcohol/drug treatment program while at the same time continuing to use those substances

. This argument is unpersuasive. The record shows that Rodriguez-Barajas has a history of alcohol abuse, which includes prior convictions for driving while intoxicated and assault while drunk, and he has been previously ordered to attend Alcohol i cs Anonymous while on a prior probation. Read in light of that context, the district court’s written judgment adds nothing not implicit in the court’s oral pronouncement and intent directing that Rodriguez-Barajas receive treatment for substance dependency. See United States v. Warden , 291 F.3d 363, 365 (5th Cir. 2002). That is not th e c a s e , however, with respect to the portion of the district court’s written judgment ordering as a special co n di t i on of supervised release that “upon completion of his term of im p ri s o n m ent, the defendant is to be surrendered to a duly-authorized immigration official fo r d eportation.” The district court did not mention this provision at the sentencing hearing, and the

2 Case: 11-10545 Document: 00511946416 Page: 2 Date Filed: 08/06/2012No. 11-10545

Government concedes that it conflicts with the oral pronouncement of sentence. We agree. The condition imposed is not listed in the sentencing guidelines as a standard or mandatory condition of supervised release, and it is not among the conditio n s r e c o mmended by the Sentencing Commission insofar as the record does not support its application here. See U.S.S.G. § 5D1.3(c) & (d)(6); see also United States v. Torres-Aguilar , 352 F.3d 934, 938 (5th Cir. 2003) (holding that

a conflict with oral pronouncement is not created by including condition s t h a t

are standard, mandatory, or recommended by the Sentencing Commission). The written judgment improperly conflicts with the oral pronouncement. See United S t a tes v. Cruz-Nagera , 454 F. App’x 371, 372 (5th Cir. 2011). We therefo r e modify the judgment to excise the provision requiring that Rodriguez-Baraja s be “surrendered to a duly-authorized immigration official for deportation.” AFFIRMED AS MODIFIED.

3 Case: 11-10545 Document: 00511946416 Page: 3 Date Filed: 08/06/2012