IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40748

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

NOE MARTIN SALMERON-CRUZ, also known as Fernando Fuentes,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:10-CR-28-1

Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Noe Martin Salmeron-Cruz pleaded guilty to being found in the United

States after deportation, having previously been convicted of a felony; he was

sentenced to 37-months’ imprisonment and three-years’ supervised release. The

written judgment included as a special condition of supervised release the

requirement that, “[w]ithin 72 hours of being placed on supervised release or

upon completion of the custody sentence, the defendant shall surrender to a duly

authorized immigration official”. Salmeron contends: because the district court

did not orally impose this special condition at sentencing, the written judgment

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2011

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.

Case: 10-40748 Document: 00511646845 Page: 1 Date Filed: 10/27/2011
No. 10-40748

should be amended and the condition removed to conform with the district

court’s oral pronouncement. 

Because Salmeron had no opportunity at sentencing to challenge the

special condition, the district court’s subsequent imposition of the condition is

reviewed for abuse of discretion. E.g., United States v. Bigelow, 462 F.3d 378,

381 (5th Cir. 2006). When a written judgment and an oral pronouncement

conflict, the latter controls. United States v. Torres-Aguilar, 352 F.3d 934, 935

(5th Cir. 2003). On the other hand, “the [written] judgment’s inclusion of

conditions [not pronounced orally] that are mandatory, standard, or

recommended by the Sentencing Guidelines does not create a conflict”. Id. at

938. But, “if the district court fails to mention a special condition at sentencing,

its subsequent inclusion in the written judgment creates a conflict that requires

amendment of the written judgment to conform with the oral pronouncement”. 

Id. at 936 (emphasis in original) (citation and internal quotation marks omitted). 

As Salmeron contends, the special condition is not listed among the

standard conditions of supervised release found either in Guideline § 5D1.3(c)

or the relevant portion of the Southern District of Texas’ General Order No.

H-1996-10. Furthermore, the condition is not rendered standard or mandatory

by 18 U.S.C. § 3583(d) (“If an alien . . . is subject to deportation, the court . . .

may order that he be delivered to [an immigration official]”. (emphasis added)).

Nor does the condition comport with the recommended special condition of

supervised release ordering deportation in Guideline § 5D1.3(d)(6) (applies only

when alien has consented to deportation or Government has proved by clear and

convincing evidence alien is deportable, neither of which occurred here). 

Therefore, because the district court did not impose the special condition orally

at sentencing, its inclusion in the written judgment creates a conflict and was

an abuse of discretion.

AFFIRMED in part; VACATED in part; and REMANDED for amendment

of the written judgment consistent with this opinion.

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Case: 10-40748 Document: 00511646845 Page: 2 Date Filed: 10/27/2011