United States v. Villalona

* 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that this opinion should not be published and is not precedent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.
F I L E D
United States Court of Appeals
Fifth Circuit
JUL 19 2002
Charles R. Fulbruge
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41065
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO VILLALONA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-256-1
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Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Fernando Villalona, who pleaded guilty to illegal reentry
following deportation after having been convicted of an
aggravated felony, urges us to remand for resentencing on the
ground that the district court’s oral pronouncement of judgment
differs from its subsequent written judgment. The only
discrepancy is that the district court did not orally impose the
mandatory $100 special assessment for this felony offense.

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No. 01-41065
-2-
18 U.S.C. § 3013(a)(2)(A). Villalona states that, although this
issue is foreclosed by our precedent in United States v. Nguyen,
916 F.2d 1016 (5th Cir. 1990), he is raising the issue to
preserve it for Supreme Court review.
Ordinarily, the oral pronouncement of judgment controls over
a conflicting written sentence. United States v. Martinez, 250
F.3d 941, 942 (5th Cir. 2001). A remand for resentencing in this
case could not, however, be squared with the decision in which
this court, noting the mandatory nature of special assessments
under 18 U.S.C. § 3013, forbade a district court’s decision not
to impose the assessment. See Nguyen, 916 F.2d at 1020. This
court went on to modify the district court’s judgment by imposing
special assessments on each of the appellant’s two convictions.
If this court can modify a district court’s criminal judgment by
imposing a special assessment outside of a defendant’s presence,
it would seem to follow that the district court’s modification of
the written judgment outside a defendant’s presence to include
the mandatory special assessment cannot be faulty. Thus, any
variance between the district court’s oral pronouncement of
sentence and its subsequent written judgment appears to have been
harmless error.
The Government may, of course, exercise its option to seek
remission pursuant to 18 U.S.C. § 3573.
AFFIRMED.

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