Summary Calendar UNITED STATES OF AMERICA v. Viveca Paz

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40525
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VIVECA PAZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 07:07-CR-29-1
Before JOLLY, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Viveca Paz appeals her sentence following her guilty-plea conviction for
aggravated identity theft, a violation of 18 U.S.C. §§ 1028A(a)(1), (c)(11). Paz
contends that the district court erred by delegating to the probation office the
duty to designate the restitution payment schedule. She also contends that,
because the record reflects that the district court orally ordered restitution
payments to begin during her supervised release term, there is a conflict
between the oral and written judgments regarding whether the order of
United States Court of Appeals
Fifth Circuit
F I L E D
February 14, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40525
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restitution is a separate criminal penalty that she must begin to pay while she
is incarcerated.
Addressing Paz’s second contention first, we view the record differently
than Paz. In our view, there is no conflict between the oral and written
judgments and any ambiguities may be resolved by examining the record as a
whole. See United States v. English, 400 F.3d 273, 276 (5th Cir. 2005). An order
of restitution was mandatory in this case pursuant to 18 U.S.C. § 3663A. The
district court’s oral statements that payment of restitution also was a condition
of supervised release are consistent with its written judgment and with
applicable law. In addition, the written judgment specifically provides that
payment of criminal monetary penalties is due during imprisonment, unless the
district court has “expressly ordered otherwise.” We see nothing in the district
court’s oral judgment that would constitute such an express order.
However, the written judgment states that the total restitution amount
“shall be paid as per a schedule established by the U.S. Probation Office.” The
district court committed plain, reversible error when it expressly delegated to
the probation office the responsibility of establishing a payment schedule for
Paz. See United States v. Albro, 32 F.3d 173, 174-75 (5th Cir. 1994). This
portion of her sentence must be vacated and remanded to the district court for
resentencing. See id. Because a remand is required, in the interest of fairness
to all concerned parties, we leave it to the district court, in establishing a
payment schedule, to indicate when restitution payments must begin.
VACATED AND REMANDED FOR RESENTENCING.

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