United States Court of Appeals

for the Fifth Circuit

No. 21-51076

United States of America, 

Plaintiff—Appellee,

versus

Jose Angel Lozano, III, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:20-CR-1514-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Jose Angel Lozano, III, pleaded guilty to spray painting graffiti onto a 

federal building in El Paso, Texas. See 18 U.S.C. § 1361. The Government 

spent $2,094.12 to clean up Lozano’s mess. The district court ordered 

Lozano to pay back Uncle Sam “in accordance with the schedule for paying.” 

Its written judgment also ordered Lozano to pay “in accordance with the 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2022

Lyle W. Cayce

Clerk

Case: 21-51076 Document: 00516392541 Page: 1 Date Filed: 07/13/2022
No. 21-51076

2

schedule of payments set forth.” What is that schedule? Nobody knows. 

Simply put, the district court did not include one in its written judgment.

Lozano argues these facts create a conflict between the orally 

pronounced sentence and written judgment. And if those two conflict, then 

we must “remand for the limited purpose of correcting the written judgment 

to” match the oral pronouncement. United States v. Pacheco, 782 F.3d 213, 

223 (5th Cir. 2015) (first quoting United States v. Martinez, 250 F.3d 941, 942 

(5th Cir. 2001). But there is no conflict. The district court told Lozano not 

once but twice that he had to pay in accordance with a “schedule.” See United 

States v. Perez-Espinoza, 31 F.4th 988, 989 (5th Cir. 2022) (holding that 

sentencing conflicts require a “material difference between the oral 

pronouncement and the written judgment”).

Still, Lozano’s sentence is obviously flawed: The district court 

ordered him to pay on a schedule but never gave him one. See United States 

v. Albro, 32 F.3d 173, 174 (5th Cir. 1994) (per curiam) (“[T]he district court 

must designate the timing and amount of payments.”); see also United States 

v. Broussard, 669 F.3d 537, 552 n.10 (5th Cir. 2012) (explaining our authority 

to reach “obvious error” sua sponte). Therefore, we VACATE and 

REMAND for resentencing on restitution. We otherwise AFFIRM.

1

1 For the first time on appeal, Lozano also complains that the district court 

erroneously delegated its judicial authority to his probation officer. “If the probation officer 

determines that [Lozano] pose[s] a risk to another person (including an organization),” the 

district court ordered, then “the probation officer may require [Lozano] to notify the 

person about the risk and [Lozano] must comply with that instruction.” Also, “[t]he 

probation officer may contact the person and confirm that [Lozano] ha[s] notified the 

person about the risk.” Our recent decision in United States v. Mejia-Banegas, decided 

during this appeal, now forecloses Lozano’s argument, and so we need not address it 

further. 32 F.4th 450, 451–52 (5th Cir. 2022).

Case: 21-51076 Document: 00516392541 Page: 2 Date Filed: 07/13/2022