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

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 gu ilty to being found in the United States after deportation, having previously been convicted of a f e l o ny; he was sentenced to 37-months’ imprisonment and three-years’ supervised release. The written judgment included as a special c o ndition of supervised release the requirement tha t , “[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 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 Octob er 27 , 20 11 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR

. R. 47.5 , the court has det erm ined thatthisop inion sho uld not * 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 10-40748 Document: 00511646845 Page: 1 Date Filed: 10/27/2011No. 10-40748

should be amended and the condition removed to conform with the district court’s oral pronouncement. Because Salmeron had no opport unity at sentencing to challenge the special condition, the district court’s s ub s e quent imposition of the condition is reviewed for abu s e o f di s c retion. E.g., United States v. Bigelow , 462 F.3d 378, 3 8 1 ( 5 th 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 [w ri tten] judgment’s inclusion of conditions [not pronounced orally] th at 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 omitt e d). As Salmeron contends, the special condition is not listed a m ong the standard conditions of supervised release found either in Guideline § 5D1.3(c)

or the rel e v a n t p ortion 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 deporta t i o n , th e 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

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