United States v. Guerrero

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40159 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES DALE GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (C-01-CR-250-1) -------------------- August 7, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Charles Dale Guerrero appeals his

conviction and sentence following his plea of guilty to being a

felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). Guerrero presents several arguments on

appeal.

First, Guerrero argues that the factual basis offered in

support of the interstate commerce element of 18 U.S.C. § 922(g)(1)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 was inadequate to support his guilty plea because it showed only

that the firearm previously traveled in interstate commerce.

Guerrero acknowledges that this argument is foreclosed by United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert.

denied, 122 S. Ct. 1113 (2002), and he raises it to preserve it for

possible Supreme Court review.

Guerrero also argues that the district court improperly

applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for

possessing a firearm in connection with another felony offense when

the other felony offense occurred simultaneously with the felon-in-

possession offense that is the subject of the instant federal

prosecution and sentencing. Guerrero acknowledges that this

argument is foreclosed by United States v. Armstead, 114 F.3d 504,

510-13 (5th Cir. 1997), and he raises it to preserve it for

Finally, Guerrero argues that the district court erred by

including special conditions of supervised release in its written

judgment that were not stated in its oral pronouncement of

sentence. He challenges the requirement of the written judgment

that he: 1) incur costs associated with drug and alcohol detection

and treatment, based on his ability to pay as determined by the

probation officer and 2) “further submit to drug-detection

techniques, in addition to those performed by the treatment agency,

as directed by the probation officer.”

2 If there is a conflict between the oral and written judgments,

then the oral pronouncement controls over the written judgment.

United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). If,

however, there is merely an ambiguity between the two, we look to

the record “to determine the district court’s true intent.” Id.

When, as here, an oral pronouncement requires a defendant to

participate in particular counseling and treatment programs and the

written judgment also requires the defendant to pay for the costs

of those programs, there is no conflict. The payment requirement

is consistent with the district court’s intent that the defendant

participate in such treatment. See United State v. Warden, 291

F.3d 363, 364-65 (5th Cir. 2002), petition for cert. filed, (U.S.

June 3, 2002) (No. 01-10662). Neither is the delegation to the

probation officer of the responsibility to determine Guerrero’s

ability to pay monitoring costs of drug detection and treatment

unlawful. See id. at 366.

We nevertheless conclude that the district court erred by

including, in its written judgment of conviction, the special

condition that Guerrero shall “further submit to drug-detection

techniques in addition to those performed by the treatment agency,

as directed by the probation officer.” Regarding drug treatment,

the district court at sentencing required only that Guerrero

“participate in a drug treatment and abuse program as required by

the United States Probation Office.” The condition that Guerrero

undergo further drug treatment is unrelated to the drug treatment

3 initially ordered by the district court at sentencing.

Consequently, the written judgment is in conflict with the oral

pronouncement. See Martinez, 250 F.3d at 942. We therefore modify

the sentence by excising the portion of the written sentence that

states: “The defendant shall further submit to drug-detection

techniques, in addition to those performed by the treatment agency,

Guerrero’s conviction is AFFIRMED. His sentence is AFFIRMED

AS MODIFIED.