IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41112

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTONIO MALDONADO,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:12-CR-175-1

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Antonio Maldonado appeals the sentence imposed by the district court

following his guilty-plea conviction of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The parties agree the district

court erred in the manner in which it provided for the commencement of the

sentence. They also agree that this court should, and we hereby do, VACATE

his sentence and REMAND to the district court for further proceedings. We also

AFFIRM the judgment of conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

August 8, 2013

Lyle W. Cayce

Clerk

*

 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 R. 47.5, the court has determined that this opinion should not be published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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FACTS

On November 29, 2011 Corpus Christi, Texas police officers, responding

to a residential shooting, discovered a firearm in Maldonado’s vehicle. They

arrested him. Maldonado was on parole for two prior state convictions at the

time of his arrest. An indictment, filed March 14, 2012, charged Maldonado with

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Because Maldonado was in state custody at the time the federal arrest

warrant was issued, he was taken into federal custody on March 22, 2012 via a

writ of habeas corpus ad prosequendum.

Maldonado pled guilty to the one-count indictment at re-arraignment on

May 21, 2012. During this proceeding, the district court advised him that his

penalty range included a ten-year maximum term of imprisonment. Yet the

Assistant United States Attorney (“AUSA”) stated, prior to the plea, that

Maldonado could qualify as an armed career criminal. 

At sentencing on September 25, 2012, the court announced that its

reference to a ten-year maximum term of imprisonment at re-arraignment was

incorrect. Instead, pursuant to the Pre-Sentence Investigation Report,

Maldonado qualified as an armed career criminal within the meaning of U.S.S.G

§ 4B1.4, and 18 U.S.C. § 924(e), mandating a sentence of no less than 15 years’

imprisonment. The court offered Maldonado the opportunity to withdraw his

plea. He declined. 

Defense counsel then requested that the court resolve the matter by

imposing the 15-year sentence but have the judgment reflect that the sentence

would run concurrently with the yet-to-be-imposed revocation of parole. 

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Further, the Texas Department of Criminal Justice would be designated as the

place of incarceration, and the federal sentence would be designated as having

commenced on November 29, 2011, which was when Maldonado was first taken

into state custody. When the court asked the Government to state its position,

it stated: “Your honor, we would just recommend the minimum mandatory. As

to whether or not Your Honor chooses to directly assist in the parole revocation,

I believe that’s at the discretion of the Court, but we just recommend the

minimum mandatory.”

The court concluded that defense counsel’s recommendation was “a

reasonable resolution in this matter.” Accordingly, the judgment stated

Maldonado would be imprisoned for a term of 180 months (15 years) to “be

served concurrently with any state sentence beginning on November 29, 2011,”

and “designate[d] the Texas Department of Criminal Justice for the defendant’s

service of sentence.” This timely appeal followed.

DISCUSSION

Both parties agree that the district court’s sentence should be vacated and

remanded. Specifically, Maldonado contends the wording of the judgment does

not carry out the court’s intent to give him credit for time spent in state custody,

beginning November 29, 2011. He further contends the judgment was

ineffectual because the court lacks the authority to give credit for time spent in

state custody. See United States v. Wilson, 503 U.S. 329, 333-37 (1992). The

Government agrees, and also notes in its briefing that the court additionally

lacks the authority to designate where the sentence would be served, as both

determinations are reserved for the Bureau of Prisons (“BOP”) under 18 U.S.C.

§ 3585(b). See id. 

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It is undisputed that the district court was operating under a mistake of

law by attempting to award Maldonado credit for the time he spent in state

custody by designating the commencement date of the federal sentence. Indeed,

a federal sentence commences on the date the defendant is received into federal

custody, which here was not until March 22, 2012. See 18 U.S.C. § 3585(a). 

Although Maldonado, under Section 3585(b), is entitled to credit toward his

federal sentence for time spent in official detention prior to the date his federal

sentence commences that has not been credited against another sentence, only

the Attorney General, through the BOP, is authorized to make calculations

under Section 3585. See Wilson, 503 U.S. at 333-37. 

The parties were also clearly operating under the same mistake of law as

the district court when defense counsel suggested the sentence adopted by the

district court and the Government did not object. In light of that error, we

conclude that it is proper to adopt the request of both parties and vacate the

district court’s sentence. 

We AFFIRM Maldonado’s conviction, VACATE his sentence, and

REMAND to the district court for further proceedings. 

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