USA v. Javier Lumbreras-Trevino, No. 09-40664 (5th Cir. 2010)

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Case: 09-40664 Document: 00511080922 Page: 1 Date Filed: 04/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40664 Summary Calendar April 15, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff Appellee v. JAVIER LUMBRERAS-TREVINO, Defendant Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-146-1 Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Javier Lumbreras-Trevino pled guilty to illegal reentry following deportation. He appeals his sentence, arguing that the district court s written judgment of sentence conflicts with its oral pronouncement of sentence. The government agrees. At the sentencing hearing, the district court departed upward from the Guidelines range of two to eight months. The court imposed a two-year term of imprisonment, finding that the Guidelines understated Lumbreras-Trevino s * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-40664 Document: 00511080922 Page: 2 No. 09-40664 Date Filed: 04/15/2010 criminal history category and his criminal history. However, on page three of the statement of reasons attached to the written judgment, the district court checked boxes indicating that it had imposed a sentence below the advisory guidelines range, pursuant to a government motion for a sentence outside of the advisory guideline system. Because the written judgment is internally inconsistent and conflicts with the oral pronouncement of judgment, the oral pronouncement controls. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). The case is remanded for the district court to amend its written judgment to conform to its oral pronouncement of sentence. See id. REMANDED. 2

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