United States v. Salvador Gonzalez-Hernandez ( 2014 )

Case: 13-41118 Document: 00512695077 Page: 1 Date Filed: 07/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-41118 FILED
Summary Calendar July 11, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
SALVADOR GONZALEZ-HERNANDEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1589-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Salvador Gonzalez-Hernandez pleaded guilty to illegal reentry after
deportation, in violation of 8 U.S.C. § 1326, and was sentenced to 62 months
and 16 days of imprisonment. On appeal, Gonzalez contends the language in
the written judgment, requiring his federal sentence run concurrently with a
sentence imposed following a state-court conviction for assault, conflicts with
the district court’s oral pronouncement at sentencing.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 13-41118 Document: 00512695077 Page: 2 Date Filed: 07/11/2014
No. 13-41118
Gonzalez raises this issue for the first time on appeal. But, because he
had no opportunity to object to the condition in the written judgment, we
review for an abuse of discretion, rather than for plain error. United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
“When there is a conflict between a written [judgment] and an oral
pronouncement, the oral pronouncement controls. United States v. Torres-
Aguilar, 352 F.3d 934, 935 (5th Cir. 2003) (citation and internal quotation
marks omitted). When there is simply ambiguity between the two, however,
we review the record to ascertain the district court’s intent. Id.
There is no conflict between the oral pronouncement and the written
judgment. At sentencing, the court stated: “I will run this sentence concurrent
with any state court sentence he’s already received. And in case there [are] any
that are outstanding I will recommend that it run concurrent with any others.”
(Emphasis added.) The written judgment states: “The Court . . . orders that
the imprisonment term imposed in the instant offense run concurrently with
the imprisonment term that was imposed in [the state-court proceeding]”.
Gonzales does not assert there are any outstanding sentences other than his
state-court sentence that predated the instant conviction and sentence.
Because both the oral pronouncement and the written judgment show
Gonzalez’ 62-month-and-16-day sentence runs concurrently with the sentence
imposed in connection with his state-court assault conviction, the only active
or pending charge Gonzalez had at the time of sentencing, there is no conflict.
See, e.g., United States v. Mireles, 471 F.3d 551, 557–59 (5th Cir. 2006).
AFFIRMED.
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