United States v. Orozco-Sanchez

• Decision Date: 26 February 2016
• Docket Number: No. 15–1252.,15–1252.
• Citation: 814 F.3d 844
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jaime OROZCO–SANCHEZ, also known as Oscar Orozco, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

814 F.3d 844

UNITED STATES of America, Plaintiff–Appellee,

v.Jaime OROZCO–SANCHEZ, also known as Oscar Orozco, Defendant–Appellant.

No. 15–1252.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 2015.

Decided Feb. 26, 2016.

Stuart D. Fullerton, Attorney Office of the United States Attorney Chicago, IL, for Plaintiff–Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

BAUER

, Circuit Judge.

Defendant-appellant, Jaime Orozco–Sanchez, pleaded guilty to one count of possessing with intent to distribute 500 or more grams of a substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1)

. The district court sentenced him to seventy-five months of imprisonment, as well as four years of supervised release. The court ordered that Orozco–Sanchez serve the seventy-five-month prison sentence consecutive to a separate forty-one-month prison sentence from an earlier case for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4).

Orozco–Sanchez now appeals his sentence, arguing that the district court erred in three ways. First, it did not properly consider the 18 U.S.C. § 3553(a)

mitigation factors as 18 U.S.C. § 3584(b) requires. Second, it used the 2013 United States Sentencing Commission Guidelines Manual ("Sentencing Guidelines") instead of the 2014 Sentencing Guidelines, which led the district court to refuse to classify Orozco–Sanchez's earlier offense as "relevant conduct" to the present offense. Orozco–Sanchez argues that these first two errors caused the district court to impermissibly impose a consecutive rather than a concurrent sentence. Finally, Orozco–Sanchez argues that the district court erred by imposing certain written conditions of supervised release that were not orally pronounced from the bench. We disagree with Orozco–Sanchez's first two arguments, but agree with the third. Accordingly, we vacate the sentence and remand for a full resentencing.

I. BACKGROUND

On August 6, 2011, Orozco–Sanchez spoke with Ismael Garibay about purchasing $53,000 worth of cocaine. Garibay agreed and sold Orozco–Sanchez two kilograms of cocaine for $52,000. Orozco–Sanchez bought three more kilograms of cocaine from Garibay over the next six weeks, and then sold the purchased cocaine to others.

On February 27, 2013, a grand jury indicted Orozco–Sanchez and Garibay on six charges in connection with the purchase and sale of the cocaine in August and September 2011. Orozco–Sanchez was specifically indicted on three counts of possessing with intent to distribute 500 or more grams of a substance containing cocaine. He signed a written plea agreement to plead guilty to one of the three counts, but retained his right to appeal his sentence. The court accepted his guilty plea on July 10, 2014, and set the sentencing for January 2015.

Later that year, on November 4, 2014, Orozco–Sanchez pleaded guilty to illegal reentry into the United States after deportation; he had been deported from the United States on July 18, 2003, but returned without the consent of the Department of Homeland Security. He was indicted for illegal reentry on November 29, 2011; the district court sentenced him to forty-one months in prison.

On January 22, 2015, Orozco–Sanchez was sentenced for his drug offense. Orozco–Sanchez argued that the sentence for the drug offense should run concurrently, and not consecutively, to his illegal reentry sentence. The district court rejected this argument, and sentenced Orozco–Sanchez to seventy-five months in prison consecutive to his forty-one months for illegal reentry. The court also sentenced Orozco–Sanchez to four years of supervised release, pronouncing various conditions of the supervised release from the bench. The accompanying written order included conditions that the district court had not orally pronounced. These included thirteen "standard conditions" as well as a condition precluding Orozco–Sanchez from possessing a "destructive device" or "any other dangerous weapon."

Orozco–Sanchez appealed his sentence.

II. DISCUSSION

Orozco–Sanchez raises two major arguments for remand. First, he argues that the district court committed reversible error by not orally pronouncing certain conditions of supervised release at sentencing, yet imposing these conditions in its written order. Second, he argues that the district court erred in imposing a consecutive rather than a concurrent sentence. We agree that the failure to orally pronounce the particular conditions of supervised release constitutes error, but disagree with him otherwise. Therefore, we remand his case.

A. Remand For Resentencing Is Necessary

Here, remand for full resentencing is appropriate because the district court failed to orally pronounce certain conditions of supervised release. A sentencing court must orally pronounce its sentence. See 18 U.S.C. § 3553(c)

("The court, at the time of sentencing, shall state in open court the reason for its imposition of the particular sentence"); United States v. Sanford, 806 F.3d 954, 960 (7th Cir.2015) ("only punishments stated orally, in open court, at sentencing are valid"). Because supervised release is part of the sentence, the court must also orally pronounce both its overall imposition and its conditions. See 18 U.S.C. § 3583(a) ("The court, in imposing a sentence to a term of imprisonment ... may include as part of the sentence that the defendant be placed on a term of supervised release" (emphasis added)); United States v. Thompson, 777 F.3d 368, 373 (7th Cir.2015) (18 U.S.C. § 3583"dispel[s] ... [a]ny doubt that conditions of supervised release are a part of the sentence").

Further, where the oral pronouncement of the court conflicts with the court's later written order, the oral pronouncement controls. E.g.,United States v. Garcia, 804 F.3d 904, 908 (7th Cir.2015)

(citation omitted). The written order may clarify the oral judgment if the oral judgment is ambiguous; however, where the oral judgment is unambiguous, the conflicting written order is a "nullity." United States v. Johnson, 765 F.3d 702, 711 (7th Cir.2014) (quoting United States v. Alburay, 415 F.3d 782, 788 (7th Cir.2005) ). We review whether an oral judgment is inconsistent with the written judgment de novo.Id. at 710 (citation omitted).

Here, the district court's oral pronouncement was not ambiguous. The district court did not orally pronounce anything regarding the thirteen standard conditions or the condition forbidding Orozco–Sanchez from possessing a "destructive device" or "any other dangerous weapon." These later added written conditions are therefore a nullity, and we vacate them. See id. at 711

(citing Alburay, 415 F.3d at 788 ) (holding that "any new conditions imposed in the later written judgment are inconsistent with the court's oral order and must be vacated").

We do not merely delete these conditions, but instead remand the case for resentencing. The sentencing court has "wide discretion in determining the conditions of supervised release," United States v. Adkins, 743 F.3d 176, 193 (7th Cir.2014)

(quotation marks and citations omitted), which it "retains ... at any time after [the] sentencing hearing." Johnson, 765 F.3d at 711 (citing Adkins, 743 F.3d at 196 ). On appellate review, we may clarify an ambiguity between the oral and written judgment without remanding the case, such as when a condition is redundant or pronouncement vague. See United States v. Chatman, 805 F.3d 840, 847 (7th Cir.2015) (removing redundant second mental evaluation and not requiring remand where district court imposed one evaluation in oral pronouncement and imposed two in written order); United States v. Bonanno, 146 F.3d 502, 512 (7th Cir.1998) (holding that written order clarified vague oral pronouncement and did not require remand on particular notice requirement). But where no ambiguity exists—as is the case here—we remand the case for resentencing, knowing that "[a]ny issues with the conditions [of supervised release] can ... be easily corrected upon remand." Johnson, 765 F.3d at 711.

B. Concurrent Versus Consecutive Sentence

Orozco–Sanchez also argues that the district court erred in holding that his sentence should be served consecutively to his illegal reentry sentence. First, he argues that 18 U.S.C. § 3584

requires a separate thorough discussion of the § 3553(a) factors. Second, he argues that the illegal reentry conviction constitutes "relevant conduct" under § 1B1.3 of the Sentencing Guidelines that mandates a concurrent sentence. We disagree with both arguments.

1. Discussion of § 3553(a)

Factors and Waiver of Mitigation

Orozco–Sanchez first argues that the district court failed to adequately address the § 3553(a)

sentencing factors as well as any arguments in mitigation when determining whether Orozco–Sanchez's sentence should run concurrently or consecutively to the illegal reentry sentence. He argues that this omission violates the requirements of 18 U.S.C. § 3584. The government argues that Orozco–Sanchez waived this claim under United States v. Garcia–Segura, 717 F.3d 566, 569 (7th Cir.2013), "by telling the judge that the judge's ruling does not need elaboration." We address both arguments.

First, Orozco–Sanchez argues that § 3584

mandates that the district court engage in a second explanation of the § 3553(a) factors in relation to whether a present sentence should run consecutively or concurrently to an already ongoing sentence. We disagree; a sentencing court must only address the § 3553(a) factors in detail once during sentencing.

Generally, a district court must explain its sentence using the § 3553(a)

factors, but this explanation "need not be exhaustive." United States v. Warner, 792 F.3d 847, 855 (7th Cir.2015). See also, e.g., United States v. Nania, 724 F.3d 824, 838 (7th Cir.20...