United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-40732
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO AGUILAR, also known as
David Fernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-451-1
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
The court sua sponte issues this supplemental opinion
correcting the initial opinion issued in this case April 19, 2004.
For the reasons stated below, we delete the reference in the first
sentence of the April 19 opinion to the number of years of
supervised release imposed as a part of defendant’s sentence; we
*
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opinion should not be published and is not precedent except under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.
also strike from the opinion the last sentence thereof reading
“this action is REMANDED for the sole purpose of allowing the
district court to correct the written judgment to reflect that the
term of supervised release is two years” and we likewise strike the
portion of the direction at the end of the opinion reading
“REMANDED FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.” In all
other respects the opinion of April 19, 2004 remains in effect as
issued.
Defendant pleaded guilty to Count 2 of the Indictment which
charged him with possession with intent to distribute of “more than
50 kilograms but less than 100 kilograms of marihuana, that is
approximately 91 kilograms of marihuana, a Schedule I controlled
substance” in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
The PSR noted that “since the statute of conviction for the instant
offense requires a three-year term of Supervised Release, the
Guideline term applicable in this case is three years. U.S.S.G. §
5D1.2(a)(2) and (b).” No party raised any objection to the
statement in the PSR that the mandatory term of supervised release
was three years. At the sentencing hearing on May 8, the district
court orally imposed sentence, which included 57 months of
confinement followed by two years of supervised release. The
district judge did not then give any reason for imposing two years
of supervised release or any indication that he was aware of what
the PSR said in this respect; nor did the parties say anything
about the term of supervised release. Section 841(b)(1)(C)
provides for a term of imprisonment of not more than twenty years
and also provides “notwithstanding § 3583 of Title 18, any sentence
imposing a term of imprisonment under this paragraph shall . . .
impose a term of supervised release of at least 3 years in addition
to such term of imprisonment. . . .”
As reflected by the docket entry for May 27, 2003, the
district court on that day in the presence of the Assistant United
States Attorney and the attorney for the defendant informed the
parties that the court had erred regarding the supervised release
term of two years because the guideline requires a three year
supervised release term and that the court would sign a judgment
reflecting a three year supervised release term and that there was
no objection by the parties. This is confirmed by a written minute
entry of May 27, 2003 (which was not included in the record on
appeal furnished to this court, but has since been furnished to us
by the district clerk’s office). The judgment signed by the
district court on May 27 and entered in the docket May 28, 2003,
reflects a term of three years of supervised release. As noted,
this is required by 21 U.S.C. § 841(b)(1)(C). This is the case
even though the offense of conviction is a Class C felony under 18
U.S.C. § 3559(a)(3) and even though 18 U.S.C. § 3583(b)(2) calls
for a term of supervised release of “not more than 3 years” for
Class C felonies. The supervised release provisions of 21 U.S.C.
§ 841(b)(1)(C) apply “notwithstanding section 3583 of Title 18.”
The provisions of Guideline § 5D1.2(a)(2), stating that for a Class
C felony supervised release term should be two years but not more
than three years, is not applicable because subsection (a) is
expressly made “subject to subsection (b).” Section 5D1.2(b)
provides that “the term of supervised release imposed shall not be
less than any statutorily required term of supervised release.” We
also observe that defendant‘s notice of appeal, though filed May
15, 2003, did not deprive the district court of authority to take
the action it did as reflected in the May 27, 2003 minute entry and
the judgment of conviction signed that day and entered May 28,
because under Fed. R. App. P. 4(b)(2) a notice of appeal filed
after the court announces sentence but before the entry of judgment
is treated as filed “on the date of and after the entry.”*
Our prior opinion of April 19, 2004 is hereby modified as
stated in the first paragraph of this supplemental opinion, and,
pursuant to our April 19, 2004 opinion so modified, the judgment of
the district court is accordingly hereby
AFFIRMED.
*
On our initial consideration of this matter we were misled by
the statement made in the brief of appellant and in the brief of
appellee, each, that the supervised release was for two years, and
neither party makes mention of the three year term stated in the
judgment or of the May 27, 2003 minute entry. We observe, however,
that the parties were each represented by different counsel on
appeal than in the trial court.