United States v. Villalona

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 22, 2002
• Docket: 01-41065
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS JUL 19 2002 FOR THE FIFTH CIRCUIT Charles R. Fulbruge Clerk No. 01-41065

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO VILLALONA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-256-1 --------------------

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Fernando Villalona, who pleaded guilty to illegal reentry

following deportation after having been convicted of an

aggravated felony, urges us to remand for resentencing 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 did not orally impose the

mandatory $100 special assessment for this felony offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-41065 -2-

18 U.S.C. § 3013(a)(2)(A). Villalona states that, although this

issue is foreclosed by our precedent in United States v. Nguyen,

916 F.2d 1016 (5th Cir. 1990), he is raising the issue to

preserve it for Supreme Court review.

Ordinarily, the oral pronouncement of judgment controls over

a conflicting written sentence. United States v. Martinez, 250

F.3d 941, 942 (5th Cir. 2001). A remand for resentencing in this

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

this court, noting the mandatory nature of special assessments

under 18 U.S.C. § 3013, forbade a district court’s decision not

to impose the assessment. See Nguyen, 916 F.2d at 1020. 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.