United States v. Adeoye

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-10864 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES OLUMIDE ADEOYE,

Defendant-Appellant.

Appeal from United States District Court for the Northern District of Texas USDC No. 94-CR-209-X

September 20, 1996 Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

James Olumide Adeoye pled guilty to a two count information charging fraudulent use of a

social security number and mail fraud. After his original sentence was vacated by this court, the

district court on remand resentenced Adeoye to 18 months’ imprisonment with three years’

supervised release, fined him $4,000, and ordered him to pay $162,045 in restitution. At the

resentencing hearing, the district court stated, “The fine and the restitution will be made in monthly

* Pursuant to Local Rule 47.5, the court has determined t hat this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. installments of no less than $750 per month.” The district court also stated that should Adeoye be

able to pay more, he would be required to pay more. Adeoye made no objection. The district court’s

subsequent written judgment states:

The fine shall be payable through the Bureau of Prisons Inmate Financial Responsibility Program during the period in which he is in custody, and the balance shall be payable through monthly installments of at least $124 per month, beginning 60 days after release from custody.

The judgment also states:

Restitution is to be paid in 36 monthly installments at the rate of $4,501.27 per month and is to be paid during the defendant’s supervision term; however, the amount shall at no time be less than $750.00 per month. If the defendant has the ability to pay more than the amount ordered, he is ordered to do so.

Adeoye filed a timely notice of appeal arguing that where, as here, there is a discrepancy between the

oral and written orders, the oral pronouncement controls.

It is well settled law in this circuit that when the oral pronouncement of sentence varies from

the written, the oral prevails. United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir.), cert. denied,

500 U.S. 926 (1991); United States v. Chagra, 669 F.2d 241, 261 n.29 (5th Cir.), cert. denied, 459

U.S. 846 (1982). The discrepancy is clear: By the oral pronouncement, the payment on both the find

and the restitution are to total at least $750 per month. The court’s written order specifies that

defendant is to pay at least $750 per month in restitution only. We therefore remand the case to the

district court with instructions to impose a sentence requiring monthly installment payments of no less

than $750 for both the fine and the restitution.