     Case: 17-20084       Document: 00514295948         Page: 1     Date Filed: 01/05/2018




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

                                     No. 17-20084                                 FILED
                                   Summary Calendar                         January 5, 2018
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JESUS RAMIREZ-HIDALGO, also known as Jesus Hidalgo Ramirez, also
known as Josue Godoy, also known as Josue Isidro Godoy Ramirez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-451-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Jesus Ramirez-Hidalgo pleaded guilty to illegal reentry into the United
States, in violation of 8 U.S.C. § 1326(a) & (b), and received a below-Guidelines
sentence of 21 months’ imprisonment.
       In challenging the sentence imposed, Ramirez contends an ambiguity
exists between the district court’s oral pronouncement of his prison term and



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-20084

the term memorialized in the written judgment. Both the oral pronouncement
and the written judgment stated Ramirez was sentenced to a 21-month prison
term. The written judgment also stated the 21-month term included credit for
one month during which Ramirez was in the custody of the United States
Immigration and Customs Enforcement (ICE). The oral pronouncement was
silent regarding any credit for time spent in ICE custody.
      Because Ramirez had no occasion to object to the later-issued written
judgment, our review is for abuse of discretion. E.g., United States v. Torres-
Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). “[W]hen there is a conflict between
a written [judgment] and an oral pronouncement, the oral pronouncement
controls.” E.g., United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
“If the differences between the two sentences create merely an ambiguity,
however, then we must look to the intent of the sentencing court, as evidenced
in the record to determine the defendant’s sentence.” Torres-Aguilar, 352 F.3d
at 935 (internal quotation marks and citation omitted). If, upon review, the
district court’s intent is unclear, our court vacates the sentence and remands
for resentencing. E.g., United States v. Garcia, 604 F.3d 186, 191 (5th Cir.
2010).
      There is no conflict or ambiguity between the oral pronouncement of
sentence and written judgment. Each clearly imposes a total prison sentence
of 21 months. That the written judgment states the sentence “provides credit
for” one month of ICE custody, and the oral pronouncement was silent on this
point, does not create an ambiguity because both the written judgment and the
oral pronouncement show the district court clearly and unequivocally intended
to impose a 21-month prison term. Furthermore, both the written judgment
and the oral pronouncement are clear that the 21-month sentence imposed
reflects a downward variance from the applicable Guidelines range of 24 to 30



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                                 No. 17-20084

months.    Because there is no conflict or ambiguity between the written
judgment and the oral pronouncement, there is no need to remand for
resentencing. E.g., id.
      Ramirez also asserts that, in the light of Johnson v. United States, 135
S. Ct. 2551 (2015), 18 U.S.C. § 16(b) is unconstitutionally vague. He concedes
this court has rejected a challenge to the constitutionality of § 16(b) based on
Johnson. See United States v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir.
2016) (en banc). He notes, however, the Court has granted certiorari in Lynch
v. Dimaya, 137 S. Ct. 31 (2016), to resolve a circuit split over Johnson’s effect
on § 16(b). Nonetheless, the grant of certiorari in Dimaya does not alter this
court’s holding in Gonzalez-Longoria. Wicker v. McCotter, 798 F.2d 155, 157–
58 (5th Cir. 1986).
      AFFIRMED.




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