31 F.4th 988
5th Cir.2022Background:
- Manuel Perez-Espinoza, a Mexican national and lawful U.S. resident, pleaded guilty to possession with intent to distribute methamphetamine.
- At sentencing the district court orally imposed 262 months imprisonment, 5 years supervised release, and a special condition: if Perez-Espinoza returned to the U.S. he must report to the nearest U.S. Probation Office within 72 hours.
- One week later the district court’s written judgment adopted the sentence but stated the reporting condition as requiring the defendant to report "immediately."
- Perez-Espinoza appealed, challenging only the written judgment’s "immediately" reporting requirement as inconsistent with the oral pronouncement and as a violation of his right to be present at sentencing.
- The Fifth Circuit reviewed whether the discrepancy was material and whether any procedural or reversible error occurred; jurisdiction was invoked under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the written-judgment "immediately" reporting requirement conflicts with the oral "within 72 hours" pronouncement and requires reversal | U.S.: No material difference; defendant heard the oral 72-hour condition and failed to object | Perez-Espinoza: "Immediately" imposes a different, burdensome obligation than "within 72 hours," so the written judgment contradicts the oral sentence | No reversible error; court finds no material difference and notes defendant had opportunity to object at sentencing |
| Proper standard of review: plain error or abuse of discretion | U.S.: Plain error (no timely objection was made at sentencing) | Perez-Espinoza: Abuse of discretion because he lacked an opportunity to object to the written judgment’s wording | Court: Defendant had an opportunity to object to the orally announced condition and failed to do so; also rules defendant loses under any standard |
Key Cases Cited
- Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006) (nonbinding precedent is followed only when persuasive)
- United States v. Grogan, 977 F.3d 348 (5th Cir. 2020) (addresses objection requirement and applicable review standard)
- United States v. Temetan, [citation="828 F. App'x 203"] (5th Cir. 2020) (per curiam) (addressed immediate vs. 72-hour reporting issue)