     Case: 11-20073     Document: 00511640016         Page: 1     Date Filed: 10/21/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 21, 2011
                                     No. 11-20073
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN VELAQUEZ DE LA TORRE, also known as Domingo Ortiz,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4-10-CR-541-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Juan Velaquez de la Torre (De la Torre) pleaded guilty of false
representation of United States citizenship (count 1), false statement in
application and use of a passport (count 2), and aggravated identity theft (count
3). The district court imposed a total term of imprisonment of 27 months, and
it stated in the written judgment that it intended that De la Torre receive a
credit of four months for time served in state custody for a related state offense
and of two months for time spent in the custody of United States Immigration

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20073    Document: 00511640016       Page: 2   Date Filed: 10/21/2011

                                   No. 11-20073

and Customs Enforcement (ICE) officials prior to being transferred to federal
custody for prosecution of this case.
      De la Torre contends in this appeal that there is variance between the
district court’s oral pronouncement of the sentence and the written judgment
with respect to the six-month credit for time served in state and ICE custody.
De la Torre contends, that to ensure that he receives the benefit of the six-month
credit, the judgment should have stated that the total term of imprisonment was
21 months, rather than 27 months. He contends that the judgment should be
vacated in part and the case remanded so that the written judgment may be
conformed to the district court’s oral pronouncement. Although De la Torre
concedes that the Bureau of Prison’s (BOP) sentence data sheet reflects that he
is receiving the credit, he contends that the judgment should be corrected
because it is not binding on the BOP.
      We review this question for an abuse of discretion. See United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). A defendant has a constitutional
right to be present at sentencing. Id. at 380-81. “[I]f the written judgment
conflicts with the sentence pronounced at sentencing, that pronouncement
controls.” Id. at 381 (emphasis in original). Generally, in the event of such a
conflict, this court will remand the case and direct the district court to amend
the written judgment to conform to the oral pronouncement. See United States
v. Garcia, 604 F.3d 186, 191 (5th Cir.), cert. denied, 131 S. Ct. 291 (2010). “If,
however, there is merely an ambiguity between the oral and written sentences,
[this court] review[s] the entire record to determine the [district] court’s intent.”
Id.; see also United States v. Mireles, 471 F.3d 551, 558-59 (5th Cir. 2006). If the
ambiguity can be resolved, remand is not necessary because the oral
pronouncement and the written judgment are not in conflict. United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
      De la Torre’s real complaint is that it is possible that the BOP will
misinterpret the district court’s intent and will not be compelled to give him the

                                         2
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                                 No. 11-20073

six-month credit because the written judgment is ambiguous. Both the oral
pronouncement and the written judgment reflect the district court’s intent that
De la Torre’s time served in state custody and in ICE custody be credited against
his 27-month guidelines sentence. The written judgment expresses this intent
more clearly than the oral pronouncement. Although it is arguable that the
written judgment is ambiguous, it is not in conflict with the oral pronouncement.
See Mireles, 471 F.3d at 558-59. The judgment is
      AFFIRMED.




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