United States v. Bolding

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 28, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40117
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY T. BOLDING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-436-ALL
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Anthony T. Bolding appeals his conviction and sentence for
possession with intent to distribute over 100 kilograms of
marijuana. Bolding’s pro se motion requesting judicial notice of
Blakely v. Washington, 124 S. Ct. 2531 (2004), is DENIED, because
there is no right to hybrid representation in a direct criminal
appeal. See United States v. Ogbonna, 184 F.3d 447, 449 & n.1
(5th Cir. 1999).

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No.04-40117
-2-
Bolding first contends that 21 U.S.C. § 841 is facially
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). As Bolding concedes, his argument is foreclosed by
circuit precedent. See United States v. Slaughter, 238 F.3d 580,
582 (5th Cir. 2000). He raises the issue only to preserve it for
Supreme Court review.
Bolding also contends, and the record reflects, that the
district court’s oral sentence included a requirement that
Bolding complete 200 community-service hours within the first
three years of his supervised release, while the written judgment
requires Bolding to complete the hours within the first two years
of his supervised release. “When there is a conflict between a
written sentence and an oral pronouncement, the oral
pronouncement controls.” See United States v. Moreci, 283 F.3d
293, 299 (5th Cir. 2002). Therefore, we remand the case for the
district court to reform the written judgment to conform to the
oral sentence. See United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001).
For the foregoing reasons, we AFFIRM the judgment of
conviction and sentence. We REMAND the case to the district
court to amend its written judgment to conform to its oral
sentence.

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