     Case: 13-40055      Document: 00512470588         Page: 1    Date Filed: 12/13/2013




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

                                                                                    FILED
                                      No. 13-40055                          December 13, 2013
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff – Appellee
v.

URI SALIM BENAVIDES-HERNANDEZ,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-212-1


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       On February 15, 2012, immigration authorities discovered Uri Salim
Benavides-Hernandez in a county jail in Cameron, Texas, awaiting trial on
state charges. He pleaded guilty to the state charges and was sentenced to 120
days imprisonment, with credit for time served. On March 2, 2012, Benavides-
Hernandez completed his state sentence and law enforcement transferred him
to federal custody.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40055     Document: 00512470588     Page: 2   Date Filed: 12/13/2013



                                  No. 13-40055
      On March 13, 2012, a federal grand jury indicted Benavides-Hernandez
with being unlawfully present in the United States after deportation under 8
U.S.C. § 1326(a) and (b)(2). The indictment lists February 15, 2012 as the date
Benavides-Hernandez was “found in” the United States. On April 24, 2012, he
pleaded guilty to the indictment. Probation calculated Benavides-Hernandez’s
sentencing guidelines range as seventy to eighty-seven months imprisonment.
      On December 11, 2012, at the sentencing hearing, the government
moved for a downward departure based on Benavides-Hernandez’s substantial
assistance with ongoing criminal investigations.        The court granted the
government’s motion, resulting in a guidelines range of forty-seven to fifty-
eight months imprisonment. Defense counsel then requested that Benavides-
Hernandez receive credit for the time he spent in state custody from October
29, 2011, the date he was first incarcerated on the state charges. The court did
not immediately respond to his request. Rather, the court went on to consider
a number of sentencing factors and sentenced Benavides-Hernandez to fifty-
eight months imprisonment.       The district court also revoked the term of
supervised release Benavides-Hernandez was serving for a prior conviction
and sentenced him to twelve months imprisonment on each of the two
violations, to run concurrently with each other but consecutive to the fifty-eight
month sentence for the instant offense. At the conclusion of the hearing, when
defense counsel reminded the court of his earlier request for credit, the
following exchange took place:
      MR. AMADOR:        Your Honor, he did ask about the request for the
                         credit for October?
      THE COURT:         Oh, yeah. What does the Indictment allege? What
                         date?
      MR. AMADOR:        Indictment alleges February, Your Honor.
      THE COURT:         Then, it’s going to be through February, beginning
                         February.
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                                       No. 13-40055
The written judgment lists a sentence of fifty-eight months imprisonment and
states: “The Court further recommends the defendant be given credit for time
served beginning February 15, 2012.”
       On appeal, Benavides-Hernandez contends that there is a discrepancy
between the court’s written judgment and oral pronouncement at sentencing.
He asserts that while the court orally awarded him credit beginning February
15, 2012, the written judgment includes only a non-binding recommendation
for credit. 1
       “A defendant has a constitutional right to be present at sentencing.”
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). As a result, “when
there is a conflict between a written sentence and an oral pronouncement, the
oral pronouncement controls.”           Id.    When the difference between the two
merely creates an ambiguity, we look to the intent of the sentencing court, as
evidenced by the record. Id.
       District courts do not have statutory authority to award credit against
federal sentences for time spent in state custody under 18 U.S.C. § 3585(b).
United States v. Wilson, 503 U.S. 329, 333-37 (1992). 2 Rather, § 3585(b)
authorizes the Attorney General, through the Bureau of Prisons, to calculate
credit. Id. District courts can, however, in certain circumstances, account for
a defendant’s time in state custody by reducing the defendant’s sentence and
stating the reasons for the reduction on the record. See United States v.



       1  The parties dispute whether this court’s review is de novo or for abuse of discretion.
This court need not resolve this dispute as the outcome would be the same under either
standard.
        2 Section 3585(b) provides: “A defendant shall be given credit toward the service of a

term of imprisonment for any time he has spent in official detention prior to the date the
sentence commences -- (1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission
of the offense for which the sentence was imposed; that has not been credited against another
sentence.” 18 U.S.C. § 3585(b).
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                                 No. 13-40055
Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir. 2004) (“[I]t is permissible for a
sentencing court to grant a downward departure to an illegal alien for all or
part of time served in state custody from the time immigration authorities
locate the defendant until he is taken into federal custody.”).
      In this case, the difference between the court’s written judgment and oral
pronouncement creates ambiguities as to whether and how the court intended
to account for Benavides-Hernandez’s time in state custody. First, it is unclear
whether the court intended to issue a binding order, or merely a non-binding
recommendation, to account for this time. Second, it is unclear from the oral
pronouncement, if the court intended to issue a binding order, how the court
intended to account for this time. To the extent that the court intended to
award Benavides-Hernandez credit, it was not authorized to do so. See Wilson,
503 U.S. at 333-37; see also United States v. Maldonado, No. 12-41112, 2013
WL 4018666, at *2 (5th Cir. Aug. 8, 2013) (unpublished) (remanding for
resentencing where the district court attempted to award credit for time spent
in state custody); United States v. Coffman, 178 F. App’x 389, 392 (5th Cir.
2006) (unpublished) (same).
      The record does not clarify the district court’s intent. In light of the
ambiguity in the record, the best course is to vacate Benavides-Hernandez’s
sentence and remand for resentencing. See e.g., United States v. Garcia-Ortiz,
310 F.3d 792, 795 (5th Cir. 2002) (remanding for reconsideration of a sentence
where the record did not reveal the district court’s intent).
      We VACATE Benavides-Hernandez’s sentence and REMAND for
resentencing consistent with this opinion.




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