                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                               Argued February 13, 2020
                                Decided June 15, 2020

                                         Before

                          JOEL M. FLAUM, Circuit Judge

                          DANIEL A. MANION, Circuit Judge

                          AMY C. BARRETT, Circuit Judge


No. 19-1621

UNITED STATES OF AMERICA,                         Appeal from the United States District
     Plaintiff-Appellee,                          Court for the Northern District of
                                                  Indiana, Hammond Division.
      v.
                                                  No. 2:13-CR-111
ADRON H. TANCIL,
    Defendant-Appellant.                          Philip P. Simon,
                                                  Judge.

                                       ORDER

        Adron Tancil pleaded guilty to RICO conspiracy and murder. He claims the
district judge pronounced a clear sentence at the sentencing hearing but then issued a
written judgment effectively adding about five years to the sentence. We vacate and
remand.

                                     I. Background

       In 2003, Tancil and co-conspirators shot and killed a man they suspected of
stealing a Mexican drug cartel shipment of cocaine. No one was immediately charged
No. 19-1621                                                                        Page 2

with the murder.

      In 2010, Tancil severely beat his girlfriend. An Indiana jury found him guilty of
attempted murder and criminal confinement and the judge sentenced him to 30 years.

       In August 2013, while Tancil was in state custody for the 2010 attempted murder,
the federal government charged him with various crimes, including the 2003 murder.
The federal magistrate judge granted the government’s motion for a writ of habeas corpus
ad prosequendum. Tancil appeared in federal court on November 19, 2013, via the writ.

       Tancil entered into a plea agreement. The government agreed to various terms
favorable to Tancil, he agreed to plead guilty to two counts, and he waived certain
appellate rights: “I expressly waive my right to appeal or to contest my conviction and
all components of my sentence or the manner in which my conviction or my sentence
was determined or imposed, to any Court on any ground other than a claim of
ineffective assistance of counsel … .” On May 27, 2016, Tancil pleaded guilty to RICO
conspiracy and murder.

       The district judge held the sentencing hearing on March 28, 2019. Tancil
confirmed his anticipated release date from state custody was November 2024. The
judge announced a below-Guideline sentence of “216 months. It will be 108 months on
[each count] to run consecutive with one another, but the entirety of the 216 months will
run concurrent to the time that he served in his state sentence. And I’ll make sure I
delineate all of that in the judgment and commitment order.”

       Defense counsel asked for a recommendation Tancil receive credit for time served
since being in federal custody. The prosecutor agreed, and said he thought it mandatory.
The judge said:

      I think it depends on when he was writted into federal custody … but that
      will be up [to] the Bureau of Prisons to actually calculate, but that’s the
      intention of the sentence I’m announcing today. And I’ll make sure
      that—in fact, it was November 19th of 2013 was the date he was writted
      out and brought into federal custody, according to the cover page of the
      presentence report. So I will make sure the J and C reflects all of that so he
      gets full credit, okay.

       The judge entered a written judgment four days later, on April 1, 2019. It said
Tancil was sentenced to 216 months, to be served concurrently with the state sentence. It
No. 19-1621                                                                           Page 3

recommended to the BOP that Tancil receive “credit for time served while in federal
custody.” On April 29, 2019, the United States Marshals returned Tancil to the Indiana
correctional facility.

       The BOP calculated Tancil’s federal release date as July 28, 2034. Tancil argues the
written judgment does not match the oral pronouncement, and the release date would
hold him in confinement about five years too long. The government acknowledges the
BOP’s calculation seems to include no credit for the period when Tancil was subject to
the writ between November 2013 and March 2019.

                                         II. Waiver?

       First we must address whether Tancil waived this appeal. In his plea agreement,
Tancil waived his right to appeal “all components of [his] sentence or the manner in
which [his] sentence was determined or imposed.” At the change-of-plea hearing, the
judge told Tancil:

       [U]nder the terms of this plea agreement, it says that you are expressly
       waiving, that means you’re giving up, your right to appeal any decision
       that I make that either leads to your conviction or the sentence that you
       ultimately receive. And essentially what that means is that I’m the last
       judge who is going to make any decisions on your case; and if you are
       unhappy or disagree with something that I do, you are stuck with those
       decisions. You are not going to be able to appeal them to a higher court. Do
       you understand that?

Tancil said he understood and said he was giving these rights up knowingly and
voluntarily.

        We interpret plea agreements under “ordinary principles of contract law, though
with an eye to the special public-interest concerns that arise in this context.” United States
v. Malone, 815 F.3d 367, 370 (7th Cir. 2016) (quotation marks omitted). We allow
“unambiguous terms in the plea agreement their plain meaning” and dismiss an appeal
falling within the waiver’s scope. Id.

      This appeal does not fall under the waiver. Tancil is not appealing the
components of his sentence or the manner in which his sentence was determined or
imposed. Rather, he merely seeks the imposition of his actual sentence. His argument on
appeal is that the oral sentence is unambiguous and therefore is the actual sentence, and
No. 19-1621                                                                         Page 4

the written judgment should be changed to conform to the actual sentence so that the
BOP’s calculation of the release date matches the judge’s intention.

                                        III. Merits

A. Analysis

       The parties agree an unambiguous oral pronouncement of a sentence controls
over a written judgment documenting the sentence. The oral pronouncement is the
actual sentence because the Due Process and Confrontation Clauses require defendant’s
presence at the imposition of sentence. United States v. Agostino, 132 F.3d 1183, 1200 (7th
Cir. 1997). So if there is a discrepancy between the unambiguous oral pronouncement
and the written judgment, the oral pronouncement trumps and the written judgment
should be amended. United States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir. 2015). But
the parties disagree about whether the oral pronouncement was unambiguous. We
review de novo.

       Tancil argues the oral pronouncement was unambiguous. The judge stated he
wanted the sentence to begin running on November 19, 2013, the date Tancil was writted
into federal custody. The judge promised: “I will make sure the J and C reflects all of that
so he gets full credit, okay.”

       The problem is the written judgment simply recommends Tancil “be given credit
for time served while in federal custody.” And the BOP did not credit Tancil for the time
between the writ (November 19, 2013) and the sentencing hearing (March 28, 2019).

       A federal term of imprisonment commences on the date defendant is received in
custody awaiting transportation to, or arrives voluntarily to begin service of sentence at,
the detention facility. 18 U.S.C. § 3585(a). A defendant “shall be given credit” for any
time he spent in official detention as a result of the subject offense before sentence for
that offense commenced if that prior detention was not credited against another
sentence. Id. § 3585(b).

        A district judge may order a sentence to run concurrently with any portion of a
state sentence defendant has not yet served. 18 U.S.C. § 3584(a). But a district judge may
not backdate a sentence. See United States v. Hill, 48 F.3d 228, 234 (7th Cir. 1995) (the
responsibility for deciding when the sentence begins remains with the Attorney
General).

       Here, Tancil was in the early years of a 30-year state sentence when he was
No. 19-1621                                                                                         Page 5

writted into federal custody on November 19, 2013. He was not sentenced for the federal
crimes until March 28, 2019. The district judge stated his intention that Tancil receive
credit for the time he served starting November 19, 2013, and specifically referenced this
date. He promised to make that happen in the written judgment. But the way the written
judgment was issued, that credit could not technically occur because Tancil already
received credit for the period from November 19, 2013, to March 28, 2019, toward his
pre-existing state sentence, as both parties noted on appeal. So what could the district
judge have done to effectuate the orally pronounced sentence? He could have employed
§ 5G1.3(d) of the Guidelines to effectively credit the period between the writ and
sentencing by reducing the total imprisonment term by the amount of that period. Such
a downward departure should only apply to extraordinary cases, and should be clearly
identified in the written judgment as a § 5G1.3(d) downward departure. U.S.S.G. §
5G1.3(d) & App. N. 4(E).

B. Sentence

        Here is the math. The federal sentence is 216 months (18 years) concurrent to the
state sentence.

       Tancil argues the judge unambiguously wanted to give credit for the time served
starting November 19, 2013. He promised to make sure the written judgment made that
happen.

     If a sentence of 18 years could start on November 19, 2013, it would end on
November 19, 2031, not considering credit for good conduct time.

C. BOP’s calculation

      Based on the actual sentence, including credit for the time served while subject to
the writ, the projected release date calculated by the BOP should be March 22, 2029.1

        But the BOP’s calculation (based on the written judgment) does not reflect the full
credit the judge intended: March 28, 2019 (date of sentencing) + 18 years – 972 days = July


1 November 19, 2013 (date of writ) + 18 years – 972 days (for good conduct) = March 22, 2029. When
calculating the projected release date, the BOP accounts for projected, possible credit for good conduct
time. For every year Tancil is incarcerated, he may receive up to 54 days of credit for good conduct time. 18
U.S.C. § 3624(b)(1). So Tancil might receive up to 972 days of credit for good conduct time on an 18-year
sentence. 18 years x 54 days per year = 972 days of good conduct time. We express no opinion about
whether Tancil will ultimately receive any credit for good conduct time.
No. 19-1621                                                                                            Page 6

30, 2034.2

          The bottom line is July 2034 (BOP release date) is over five years too late.

D. Remedy

       We agree with Tancil that the oral sentence was unambiguous. The transcript of
the sentencing hearing makes clear that the judge wanted to give Tancil credit beginning
November 19, 2013. He even mentioned that particular date. But the sentence cannot
begin running on November 19, 2013, given the way the judgment is written and the
rules the BOP must follow.

       One potential way to bring the written judgment (and the resulting BOP
calculation) into accord with the oral sentence might be for the written judgment to show
a sentence of 141 months starting March 28, 2019,3 and to reference U.S.S.G. § 5G1.3(d).
The government noted and delineated (and argued against) this possibility in its
appellate response. Tancil accepted this solution in his reply as the “clearest
mechanism.”

                                               IV. Conclusion

       We vacate the written judgment and remand with instructions to issue a written
judgment comporting with the orally imposed sentence. We leave the precise figures to
the district judge to consider, keeping in mind the rules the BOP must follow. A second
sentencing hearing is not necessary.




2   July 30, 2034, is a Sunday. The BOP listed Tancil’s release date as July 28, 2034, the preceding Friday.
3 A sentence of 141 months starting March 28, 2019, roughly equals a sentence of 216 months starting
November 19, 2013, given 85% good-time credit. The time between the sentencing hearing on March 28,
2019, and a release date of March 22, 2029, is 3,647 days, which is approximately 85% of 4,291 days, which
is approximately 141 months.
