IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40159
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES DALE GUERRERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(C-01-CR-250-1)
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August 7, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Charles Dale Guerrero appeals his
conviction and sentence following his plea of guilty to being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Guerrero presents several arguments on
appeal.
First, Guerrero argues that the factual basis offered in
support of the interstate commerce element of 18 U.S.C. § 922(g)(1)
*
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this opinion should not be published and is not precedent except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.
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was inadequate to support his guilty plea because it showed only
that the firearm previously traveled in interstate commerce.
Guerrero acknowledges that this argument is foreclosed by United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert.
denied, 122 S. Ct. 1113 (2002), and he raises it to preserve it for
possible Supreme Court review.
Guerrero also argues that the district court improperly
applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for
possessing a firearm in connection with another felony offense when
the other felony offense occurred simultaneously with the felon-in-
possession offense that is the subject of the instant federal
prosecution and sentencing. Guerrero acknowledges that this
argument is foreclosed by United States v. Armstead, 114 F.3d 504,
510-13 (5th Cir. 1997), and he raises it to preserve it for
possible Supreme Court review.
Finally, Guerrero argues that the district court erred by
including special conditions of supervised release in its written
judgment that were not stated in its oral pronouncement of
sentence. He challenges the requirement of the written judgment
that he: 1) incur costs associated with drug and alcohol detection
and treatment, based on his ability to pay as determined by the
probation officer and 2) “further submit to drug-detection
techniques, in addition to those performed by the treatment agency,
as directed by the probation officer.”
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If there is a conflict between the oral and written judgments,
then the oral pronouncement controls over the written judgment.
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). If,
however, there is merely an ambiguity between the two, we look to
the record “to determine the district court’s true intent.” Id.
When, as here, an oral pronouncement requires a defendant to
participate in particular counseling and treatment programs and the
written judgment also requires the defendant to pay for the costs
of those programs, there is no conflict. The payment requirement
is consistent with the district court’s intent that the defendant
participate in such treatment. See United State v. Warden, 291
F.3d 363, 364-65 (5th Cir. 2002), petition for cert. filed, (U.S.
June 3, 2002) (No. 01-10662). Neither is the delegation to the
probation officer of the responsibility to determine Guerrero’s
ability to pay monitoring costs of drug detection and treatment
unlawful. See id. at 366.
We nevertheless conclude that the district court erred by
including, in its written judgment of conviction, the special
condition that Guerrero shall “further submit to drug-detection
techniques in addition to those performed by the treatment agency,
as directed by the probation officer.” Regarding drug treatment,
the district court at sentencing required only that Guerrero
“participate in a drug treatment and abuse program as required by
the United States Probation Office.” The condition that Guerrero
undergo further drug treatment is unrelated to the drug treatment
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initially ordered by the district court at sentencing.
Consequently, the written judgment is in conflict with the oral
pronouncement. See Martinez, 250 F.3d at 942. We therefore modify
the sentence by excising the portion of the written sentence that
states: “The defendant shall further submit to drug-detection
techniques, in addition to those performed by the treatment agency,
as directed by the probation officer.”
Guerrero’s conviction is AFFIRMED. His sentence is AFFIRMED
AS MODIFIED.
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