United States v. Jose Melquiades Velazco-Hernandez

Velazco-Hernandez appeals from a district court order denying his motion to correct an allegedly illegal sentence. We affirm.

On July 11,1977, appellant pleaded guilty to a charge of smuggling merchandise into the United States in violation of 18 U.S.C. § 545 . The district court sentenced him orally as follows:

On July 12, 1977 the written judgment of the court was filed stating that the defendant was committed to the custody of the Attorney General

Appellant contends that there is a variance between the oral sentence pronounced and the written judgment and so the oral pronouncement made in his presence must control, citing United States v. Munoz-Dela Rosa, 495 F.2d 253 (9th Cir. 1974) involving oral concurrent sentences which the court sought to alter to consecutive sentences in its subsequent written judgment. We held that the unambiguous oral sentence controlled, there being a direct conflict between it and the written judgment.

Here, however, there is no conflict between the oral and the written edicts, any difference between them being of form rather than substance.

Appellant further contends that probation cannot be conditioned upon service of a portion of a sentence…