UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41280
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERTO DE LA CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
CR L-01-689-01
November 8, 2002
Before JONES, SMITH and SILER,* Circuit Judges.
PER CURIAM:**
Roberto de la Cruz (“de la Cruz”) appeals his conviction
for possession of more than 100 kilograms of cocaine with intent to
*
United States Court of Appeals for the Sixth Circuit,
sitting by designation.
**
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that this opinion should not be published and is not precedent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.
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and
18 U.S.C. § 2. This court AFFIRMS de la Cruz’s conviction but
strikes the final two sentences of the district court’s written
supervised release conditions.
BACKGROUND
In June 2001, de la Cruz pulled a tractor trailer rig
into the United States Border Patrol Checkpoint facility located 15
miles north of Laredo, Texas on IH 35. As the rig entered the
primary inspection area, a drug-sniffing dog detected the presence
of contraband, and de la Cruz was referred to the secondary
inspection area. The seal to the trailer did not correspond to the
bill of lading de la Cruz provided. A search of the trailer
revealed 61 bundles of marihuana, weighing 1,693.40 pounds, hidden
in the trailer. A cellular phone was also found wedged in the
middle of the bundles. De la Cruz admitted that he was hired to
transport the load of marihuana to Dallas, Texas for $20,000,
although he claimed that he believed only 400 pounds of marihuana
was secured in the trailer.
A federal grand jury returned a two-count indictment
charging de la Cruz with (1) conspiracy to possess, with intent to
distribute, more than 100 kilograms of marijuana, in violation of
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) (Count One); and (2)
possession of more than 100 kilograms of cocaine with intent to
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distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and
18 U.S.C. § 2 (Count Two).
De la Cruz entered a plea of guilty to Count Two. On
October 18 the district court sentenced de la Cruz to seventy-eight
months’ imprisonment in the custody of the Federal Bureau of
Prisons, to run consecutively to a twelve-month sentence for
revocation of probation in another case; a five-year term of
supervised release, to run concurrently with the three-year term of
supervised release imposed in the probation revocation case; a fine
of $1,500; and a mandatory special assessment of $100.
In discussing the terms of supervised release, the
district court orally imposed the following conditions: “And we
will put a drug aftercare condition. You have to avoid narcotics
... [and] I’ll make reasonable payments [of the $1,500 fine] a
condition of supervised release.” The district court then ordered
that these payments be at a rate of $30 per month.
The district court entered its written judgment on
October 25, 2001. The written judgment of conviction and sentence
imposed the following “Special Conditions of Supervision” on de la
Cruz:
The defendant shall participate in a program, inpatient
or outpatient, for the treatment of drug and/or alcohol
addiction, dependency or abuse which may include, but not
be limited to urine, breath, saliva and skin testing to
determine whether the defendant has reverted to the use
of drugs and/or alcohol. Further, the defendant shall
participate as instructed and as deemed necessary by the
probation officer and shall comply with all the rules and
regulations of the treatment agency until discharged by
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the Program Director with the approval of the probation
officer. The defendant shall further submit to drug-
detection techniques in addition to those performed by
the treatment agency, as directed by the probation
officer. The defendant will incur costs associated with
such drug/alcohol detection and treatment, based on
ability to pay as determined by the probation officer.
De la Cruz now appeals his conviction and sentence.
DISCUSSION
De la Cruz argues first that the statute of conviction in
this case – 21 U.S.C. § 841 – is unconstitutional on its face in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As he
concedes, his argument is foreclosed by this court’s decision in
United States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), cert.
denied, 532 U.S. 1045 (2001).
Second, he argues that the district court reversibly
erred by including, in its written judgment of conviction and
sentence, special conditions of supervised release that were not
orally pronounced at sentencing. At sentencing, the district court
told de la Cruz that it would include in the sentence, as special
conditions of supervised release, “drug aftercare” and avoidance of
narcotics. De la Cruz does not object to the first two sentences of
the written sentence, as he apparently considers them within the
scope of the district court’s oral sentence. He does, however,
object to the final two sentences, arguing that these impose a
separate requirement.
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In United States v. Martinez, 250 F.3d 941 (5th Cir.
2001) this court concluded that
when there is a conflict between a written sentence and
an oral pronouncement, the oral pronouncement controls.
If, however, there is merely an ambiguity between the two
sentences, the entire record must be examined to deter-
mine the district court’s true intent.
Id. at 942. De la Cruz argues that the district court’s written
requirement that he submit to and pay for “drug-detection tech-
niques in addition to those performed by the treatment agency”
constitutes a “conflict,” not an “ambiguity.” He cites in support
this court’s on-point but unpublished opinion in United States v.
Ramos, No. 01-40361 (5th Cir. 2002) (unpublished) (holding that
“the special condition imposed in the written judgment is consider-
ably more far-reaching”). He ignores, however, this court’s less
pointed but precedential opinion in United States v. Warden, 291
F.3d 363 (5th Cir. 2002) (holding that a similar discrepancy
between oral and written sentences “create[d], if anything, an
ambiguity”). Fortunately for de la Cruz, this court need not reach
the merits of his argument, as the government “concedes that this
Court’s precedents invalidate the ‘Special Conditions’ not orally
pronounced at sentencing.”
CONCLUSION
As de la Cruz has conceded his Apprendi argument and the
government its Warden argument, this court is left with precious
little to decide. Accordingly, we AFFIRM de la Cruz’s conviction
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but strike the final two sentences of the district court’s written
supervised release conditions.
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United States v. De La Cruz
Combined Opinion