United States v. Lopez

Opinion

Case: 23-20409 Document: 00517052600 Page: 1 Date Filed: 02/01/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

FILED No. 23-20409 February 1, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Augistine Duaenas Lopez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-314-1 ______________________________

Before Wiener, Stewart, and Douglas, Circuit Judges. Per Curiam: * Augistine Duaenas Lopez appeals the sentence imposed following the revocation of his supervised release, arguing that the district court’s oral pronouncement differs from the written judgment. We review this claim for

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-20409 Document: 00517052600 Page: 2 Date Filed: 02/01/2024

No. 23-20409

abuse of discretion. See United States v. Baez-Adriano, 74 F.4th 292, 297 (5th Cir. 2023). Here, the district court orally imposed “a term of two days less than 12 full months” of imprisonment, but the written judgment imposed “12 months with credit for two days.” The parties agree that this discrepancy amounts to a conflict and that the district court is not authorized to compute credit for time served. See United States v. Taylor, 973 F.3d 414, 418 (5th Cir. 2020); United States v. Moreci, 283 F.3d 293, 299-300 (5th Cir. 2002). However, the district court retained the discretion to sentence Duaenas Lopez to the term of imprisonment it orally pronounced. See In re U.S. Bureau of Prisons, 918 F.3d 431, 439 (5th Cir. 2019). When the written judgment conflicts with the oral pronouncement, the oral pronouncement controls. Merici, 283 F.3d at 299. Given the foregoing, the judgment of the district court is VACATED, and the case is REMANDED for entry of an amended written judgment that conforms to the oral pronouncement. See, e.g., United States v. Fuentes-Rodriguez, 22 F.4th 504, 506 (5th Cir. 2022).