United States Court of Appeals

for the Fifth Circuit

No. 20-40769

United States of America, 

Plaintiff—Appellee,

versus

Manuel Perez-Espinoza, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:18-cr-2048-3

Before Davis, Willett, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The question presented is whether the district court violated the 

defendant’s right to be present at sentencing. The answer is no. We therefore 

affirm.

I.

Manuel Perez-Espinoza is a Mexican national who obtained legalresident status in the United States. In 2019, he was arrested for various drug 

offenses. He then pleaded guilty to one count of possession with intent to 

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2022

Lyle W. Cayce

Clerk

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2

distribute a controlled substance (methamphetamines) in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2.

At the sentencing hearing, the district court orally announced a 

sentence of 262 months in prison followed by 5 years of supervised release 

and a fine of $100. The court also imposed various conditions on PerezEspinoza’s supervised release. Relevant here is the special condition that

anticipated the Government’s likely decision to remove Perez-Espinoza. The 

district court stated: “[I]f [Perez-Espinoza] were to return to this country for 

any reason, he would be required to report to the nearest U.S. Probation 

Office within 72 hours.”

One week later, the court entered a written judgment. Unlike the oral 

pronouncement, the written judgment imposed a condition that “[i]f the 

defendant returns, the defendant shall report to the nearest U.S. Probation 

Office immediately.”

Thereafter, Perez-Espinoza timely appealed, challenging only the 

written judgment’s inclusion of an immediate-reporting requirement. We 

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

II.

Perez-Espinoza argues that there’s a conflict between requiring him 

to report “immediately” and requiring him to report “within 72 hours.” We 

disagree.

We hold that there is no material difference between the oral 

pronouncement and the written judgment. At sentencing, Perez-Espinoza 

heard that, as a condition of his supervised release, he would have to report 

to the Probation Office if he reentered the United States. He said nothing. 

He therefore cannot be heard to complain when the judgment later clarified 

his reporting obligation.

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It’s true that we’ve at least twice ordered the district court to amend 

the written judgment’s immediate-reporting requirement to the orally 

announced 72-hour-reporting requirement. See United States v. GonzalezHernandez, No. 21-40180, 2022 WL 256354, at *1 (5th Cir. Jan. 26, 2022) 

(per curiam); United States v. Temetan, 828 F. App’x 203, 206 (5th Cir. 2020) 

(per curiam). But those opinions are unpublished, nonprecedential, and 

hence non-binding. See 5th Cir. R. 47.5.4. Neither explains how the oral 

pronouncement and written judgment materially differed. See, e.g., Ballard v. 

Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (noting we follow non-binding 

precedent only to the extent it’s “persuasive”). And we therefore decline to 

follow them.

Perez-Espinoza also argues that our review is for abuse of discretion 

(as opposed to plain error) because he didn’t have an opportunity to object 

to his immediate-reporting requirement. See United States v. Grogan, 977 

F.3d 348, 352 (5th Cir. 2020). As noted above, however, he had an 

opportunity to object to a materially identical, 72-hour reporting 

requirement, and he failed to do so. And in any event, it does not matter 

because Perez-Espinoza loses under any standard of review.

* * *

For these reasons, we see no reversible error in the district court’s 

judgment.

AFFIRMED.

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