IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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:*

Juan Carlos Rodriguez-Barajas appeals following his guilty plea conviction

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 2012

Lyle W. Cayce

Clerk

 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.

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No. 11-10545

the written judgment must be conformed to the oral pronouncement. United

States 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. 2001).

The district court here orally ordered as a special condition of supervised

release that Rodriguez-Barajas “participate in a program approved by the

United States Probation Office for the treatment of narcotic, drug, or alcohol

dependency.” The written judgment ordered that Rodriguez-Barajas also

“abstain from the use of alcohol and/or all other intoxicants during and after

completion of treatment.” Rodriguez-Barajas argues that there is a conflict

because the oral pronouncement did not include the abstention provision 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 Alcoholics

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 the case, however, with respect to the portion of the district

court’s written judgment ordering as a special condition of supervised release

that “upon completion of his term of imprisonment, the defendant is to be

surrendered to a duly-authorized immigration official for deportation.” The

district court did not mention this provision at the sentencing hearing, and the

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No. 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

conditions recommended 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 conditions that

are standard, mandatory, or recommended by the Sentencing Commission). The

written judgment improperly conflicts with the oral pronouncement. See United

States v. Cruz-Nagera, 454 F. App’x 371, 372 (5th Cir. 2011). We therefore

modify the judgment to excise the provision requiring that Rodriguez-Barajas

be “surrendered to a duly-authorized immigration official for deportation.”

AFFIRMED AS MODIFIED.

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