United States v. Mollin Hill

Case: 10-51036 Document: 00511603406 Page: 1 Date Filed: 09/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 15, 2011
No. 10-51036
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MOLLIN LUNDELL HILL,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-446-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Mollin Lundell Hill pleaded guilty to conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846. On April 2, 2009, the district
court sentenced Hill to 57 months in prison and three years of supervised
release. As his sole issue on appeal, Hill contends that there is a conflict
between the district court’s oral pronouncement at sentencing and the amended
written judgment with regard to the issue of credit for time served.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 10-51036
When there is a clear conflict between the district court’s oral
pronouncement at sentencing and the written judgment, the oral pronouncement
controls.1 When there is merely ambiguity between the two, this Court reviews
the record to ascertain the district court’s intent, which determines the final
sentence.2
In Hill’s case, there is no conflict between the oral pronouncement and the
amended written judgment, nor even an ambiguity. In its oral pronouncement,
delivered on April 2, 2009, the district court indicated that Hill should receive
credit for time served beginning October 6, 2008, the date he was taken into
custody.3 In its amended written judgment,4 the district court indicated that Hill
should receive credit for time served “from October 6, 2008 until April 2, 2009.”
Hill contends that the amended written judgment’s “until April 2, 2009” term is
inconsistent with the oral sentence. But because April 2, 2009, was the date of
Hill’s sentencing hearing, there is no reasonable argument that any credit for
time served could extend beyond that date. Indeed, Hill makes no argument to
substantiate his assertion that the alleged conflict may harm him. Thus,
because the oral pronouncement and the amended written judgment agree that
Hill is to receive credit for the same amount of time served, there is no
ambiguity, much less a conflict.5
1
United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000).
2
Id.3
In fact, Hill was taken into custody on October 16, 2008. Hill does not challenge the
discrepancy in the arrest date, which counts in his favor.
4
After the district court issued its original written judgment, Hill filed a motion for
clarification, requesting that the written judgment be amended to include the date on which
his sentence began to run. The district court amended its written judgment at Hill’s request.
5
Cf. United States v. Mireles, 471 F.3d 551, 557-59 (5th Cir. 2006) (holding that
differences between oral and written pronouncements were reconcilable and thus did not
conflict).
2
Case: 10-51036 Document: 00511603406 Page: 3 Date Filed: 09/15/2011
No. 10-51036
In any event, as Hill recognizes in his appellate brief, the district court
does not ultimately determine credit for time served.6 The Attorney General,
through the Bureau of Prisons, does. 7 For this reason, too, Hill’s request that
this Court strike the “April 2, 2009” term from the amended written judgment
would offer him no relief if granted.
In light of the foregoing, the judgment of the district court is AFFIRMED.
6
See United States v. Wilson, 503 U.S. 329, 331-34 (1992).
7
Id.3