2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-10-2009

USA v. Valeriano Ortiz-Flores

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3544

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Recommended Citation

"USA v. Valeriano Ortiz-Flores" (2009). 2009 Decisions. Paper 1029.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3544

 

UNITED STATES OF AMERICA

v.

VALERIANO ORTIZ-FLORES,

 Appellant

 

 

On Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal No. 1-08-cr-00022-1)

District Judge: Honorable Sue L. Robinson

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 12, 2009

Before: McKEE, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.

(Filed July 10, 2009)

 

OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.

Appellant Valeriano Ortiz-Flores pleaded guilty to one count of illegal reentry into

the United States following deportation. On August 11, 2008, the District Court imposed
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a sentence of 21 months’ imprisonment plus three years of supervised release. In doing

so, the court orally informed Appellant that, “[i]f you are deported from the United States,

you shall not unlawfully return to the United States and the term of supervision will be

served inactively.” Neither party took issue with this statement.

On August 18, 2008, the District Court issued its written judgment of sentence. 

The section of the judgment addressing “Supervised Release” states that, “[u]pon release

from imprisonment, the defendant shall be on supervised release for a term of 3 YEARS.” 

After discussing a number of “Standard Conditions” of supervised release, the judgment

includes one “Special Conditio[n] of Supervision”—“[t]he defendant’s term of

supervised release shall run inactive if the defendant is deported. Should the defendant

re-enter the United States, it will be considered violation [sic] of supervised release.”

Appellant takes issue with the special condition of supervised release, which he

contends is different from the special condition announced during the sentencing

hearing—

[u]nder the oral condition, the term of supervised release runs inactively and then

expires after the three years. Under the written judgment, the term of supervised

release is tolled during the time spent in the foreign country, and then re-activates

upon defendant’s return to the United States, even if the return occurs more than

three years after release from prison.

Appellant’s Br. at 2-3. This Court recently held that a condition such as that described by

Appellant exceeds the District Court’s authority under 18 U.S.C. § 3583 and constitutes

plain error. See United States v. Cole, --- F.3d ----, No. 08-3201, 2009 WL 1495402 (3d
3

Cir. 2009). Appellant thus requests that we remand to the District Court with instructions

to issue a revised written judgment.

The Government argues that we need not remand, maintaining that there is no

conflict between the oral pronouncement and the written judgment because supervised

release that “run[s] inactively,” as stated in the judgment, is the same thing as supervised

release that is “served inactively,” as stated during the sentencing hearing—the ultimate

result under both the oral pronouncement and the written judgment is that Appellant,

when outside of the United States, would serve his term without active supervision by the

probation office and that the term would expire three years after his release from prison. 

Alternatively, the Government asserts that, even if the oral pronouncement and the

judgment differ, the fact that former controls obviates the need for remand. See United

States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991) (“[W]e . . . follow the ‘firmly

established and settled principle of federal criminal law that an orally pronounced

sentence controls over a judgment and commitment order when the two conflict.’”

(quoting United States v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987))).

In response to the Government’s argument, Appellant notes that the written

judgment, in stating that, “[s]hould the defendant re-enter the United States, it will be

considered violation [sic] of supervised release,” does not contain the oral

pronouncement’s three-year time limit, without which illegal re-entry constitutes a

violation of supervised release whenever it occurs. Appellant also argues that, even
4

though the oral pronouncement is controlling, we should remand to eliminate the

ambiguity in the written judgment lest it cause confusion in the future.

In an abundance of caution, we believe that the written judgment should be revised

for clarity’s sake. The District Court’s written judgment, in stating that “[t]he defendant’s

term of supervised release shall run inactive if the defendant is deported. Should the

defendant re-enter the United States, it will be considered violation [sic] of supervised

release,” could be read in two ways. The first sentence provides that the supervised

release period runs inactively if Appellant is deported and then presumably expires after

the previously delineated three-year term of supervised release ends. The second

sentence, however, if read in isolation, could be interpreted as stating that a reentry, no

matter how far into the future it occurs, would constitute a violation of supervised release. 

Given this ambiguity, we believe it is appropriate to remand so that the District Court can

clarify its condition of supervised release. Supporting this decision is the fact that the

written judgment in this case is worded in a manner substantially similar to that which

was found to constitute plain error in Cole. Accordingly, we will vacate the challenged

condition of supervised release, and remand for further proceedings consistent with this

opinion and our decision in Cole.