IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41289

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN TREVINO,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 1:15-CR-1006-1

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Juan Trevino pleaded guilty to possession with 

intent to distribute more than 50 kilograms of methamphetamine and was 

sentenced as a career offender to 262 months of imprisonment and five years 

of supervised release. On appeal, he challenges only his sentence, claiming

that (1) the district court erred by applying the career offender enhancement 

under U.S.S.G. § 4B1.1(a), and (2) there is a conflict between the special 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2017

Lyle W. Cayce

Clerk

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No. 16-41289

2

condition of supervised release in the written judgment and the special 

condition pronounced by the district court at sentencing.

We review a district court’s interpretation or application of the 

Sentencing Guidelines de novo. We review its factual findings for clear error. 

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

A defendant is classified as a career offender under § 4B1.1 if, after the 

age of eighteen, he commits a “felony that is either a crime of violence or a 

controlled substance offense” and he “has at least two prior felony convictions 

of either a crime of violence or a controlled substance offense.” § 4B1.1(a). A 

defendant has two prior felony convictions for purposes of the career offender 

guideline when, as relevant here, he committed the offense for which he is 

being sentenced “subsequent to sustaining at least two felony convictions 

of . . . a crime of violence” and “the sentences for at least two of the 

aforementioned felony convictions are counted separately under the provisions 

of [U.S.S.G.] § 4A1.1(a), (b), or (c).” § 4B1.2(c).

Trevino’s sole challenge to the career-offender enhancement at issue 

here is that his robbery sentences should not and could not have been counted 

separately, as provided under § 4A1.2(a)(2), because those sentences ran 

concurrently and were entered and imposed on the same date. However, even 

though both state court judgments are stamped March 15, 2008, those 

judgments clearly show that Trevino’s prior sentences were imposed on 

different days. Thus, the district court did not err in applying the § 4B1.1

enhancement.

We agree, however, with Trevino’s contention that there is a conflict 

between the court’s written judgment and its oral pronouncement. The district 

court pronounced the special condition that, “[w]hile on supervised release,” 

Trevino is “required to perform 50 hours of community service.” The written 

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judgment contains the special condition that Trevino “shall perform 50 hours 

of community service as approved by the probation officer to be completed 

within the first 12 months of the supervised release term.”

The inclusion in the written judgment of the special condition that 

Trevino perform the 50 hours of community service within the first 12 months 

of supervised release, creates a conflict, and not merely an ambiguity, between 

the oral pronouncement of sentence and the written judgment. See United 

States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003); United States v. TorresAguilar, 352 F.3d 934, 936 (5th Cir. 2003). We therefore vacate the sentence 

in part and remand with instructions to the district court to modify, in a 

manner consistent with this opinion, the special condition in the written 

judgment to conform to its oral pronouncement.

SENTENCE AFFIRMED IN PART, VACATED IN PART; REMANDED 

WITH INSTRUCTIONS.

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