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UNITED STATES v. IVY (2018)

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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Melanie IVY, Defendant-Appellant

No. 17-51092

Decided: August 21, 2018

Before REAVLEY, OWEN, and GRAVES, Circuit Judges. Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee Melanie Ivy, Pro Se

The attorney appointed to represent Melanie Ivy has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Ivy has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.

The judgment, however, contains a clerical error. When the written judgment conflicts with an oral pronouncement, the oral pronouncement controls. See United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). At sentencing, the district judge orally advised Ivy that she “shall not travel in any state that borders Mexico without permission of your probation officer during the term of your supervised release.” But the subsequent written judgment differs; it states that “[t]he Defendant shall not be permitted to reside or travel in any states that border with Mexico during the term of supervision.” When “[t]he judgment does not but should reflect the probation officer’s ability to provide permission to travel as stated at sentencing,” the proper course is to remand because “[c]lerical errors such as this may be corrected by the district court.” United States v. Rosales, 448 F. App'x 466, 467 (5th Cir. 2011) (per curiam) (citing Fed. R. Crim. P. 36).

We REMAND for a correction of the judgment.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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