     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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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