United States v. Mendez-Del Toro

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 28, 2001
• Docket: 01-40513
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 01-40513 Summary Calendar Civil Docket #M-01-CR-51-1 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMIE ALBERTO MENDEZ-DEL TORO,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________

December 27, 2001

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Both Mendez-Del Toro and the Government urge us to remand

for resentencing of this appellant, who pleaded guilty to illegal

reentry following deportation, on the ground that the district

court’s oral pronouncement of judgment differs from its subsequent

written judgment. The only discrepancy is that the district court

orally forgot to inform Mendez of the mandatory $100 special

assessment for this felony offense. 18 U.S.C. § 3013(a)(2)(A).

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. We sympathize with the parties’ reasoning, because

ordinarily, the oral pronouncement of judgment controls over a

conflicting written sentence. United States v. Martinez, 250 F.3d

941, 942 (5th Cir. 2001). Further, as the government observes, it

might well be inclined to seek remission of the special assessment

because of his indigent, alien status. See 18 U.S.C. § 3573. A

remand could not, however, be squared with the decision in which

this court, noting the mandatory nature of special assessments

under section 3013, forbade a district court’s decision not to

impose the assessment. See United States v. Nguyen, 916 F.2d 1016,

1020 (5th Cir. 1990). This court went on to modify the district

court’s judgment by imposing special assessments on each of the

appellant’s two convictions. If this court can modify a district

court’s criminal judgment by imposing a special assessment outside

of a defendant’s presence, it would seem to follow that the

district court’s modification of the written judgment outside a

defendant’s presence to include the mandatory special assessment

cannot be faulty. Thus, any variance between the district court’s

oral pronouncement of sentence and its subsequent written judgment

appears to have been harmless error.

The government may, of course, exercise its option to

seek remission pursuant to 18 U.S.C. § 3573.

AFFIRMED.

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