
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ___________________          No. 92-1310                                             JUAN CAMILO MONTOYA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                         _____________                                 ___________________                                  __________________                                  __________________               Juan Camilo Montoya on brief pro se.               ___________________               Lincoln  C.  Almond,  United  States Attorney,  Margaret  E.               ___________________                             ____________          Curran, Assistant U.S. Attorney, James H. Leavey, Assistant  U.S.          ______                           _______________          Attorney, and Ira Belkin, Assistant U.S. Attorney.                 Per Curiam.   We have reviewed  the parties' briefs  and                 __________            the record on appeal.   We agree with the  magistrate judge's            conclusion  with  respect  to  appellant's  claim  of  newly-            discovered evidence.                 We also  agree that  appellant's claim that  his federal            sentence  should be  construed as  concurrent with  his state            sentence and that he  should be credited with time  served on            his state sentence is meritless.                      It  is a  firmly established  and settled                      principle of federal criminal law that an                      orally pronounced  sentence controls over                      a judgment and  commitment order when the                      two conflict.  This rule is recognized in                      virtually every circuit.            United States  v.  Villano, 816  F.2d 1448,  1450 (10th  Cir.            _____________      _______            1987)  (en  banc)  (citation  omitted).    Assuming,  without            deciding, that the orally pronounced sentence on November 30,            1989  conflicted with the written order of commitment of that            date, the district  court, in any event,  clearly stated that            "credit  [was] to  be given for  all federal  time heretofore            served."   This was  a sufficient  indication of  the court's            intent  that   the   term  of   imprisonment   imposed   upon            resentencing remain  (as indisputably stated  in the original            sentence) consecutive.                 Finally, we summarily reject appellant's contention that            the  district  court failed  to make  an independent  de novo            determination,  as required by  28 U.S.C.    636(b)(1).  That            provision expressly  permits the district court,  as was done                                         -2-            here, to accept the  findings or recommendations made  by the            magistrate.   It does  not require, as  appellant appears  to            suggest,  that  the  district  court  make  its  own  express            findings.                 We affirm the district  court order accepting the report                    ______            and recommendations of the magistrate judge.                 Affirmed.                 _________                                         -3-
