### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 M aldonado a p p e als the s entence i mposed by the district court following his guilty-plea conviction o f being a felon i n possession of a firearm, in violation of 1 8 U.S.C. §§ 922(g)(1) and 924(a)(2). The parties agree the district court erred in the ma n n e r i n which it p r ovided for the commencement of the sentence. They also agree that this court s hould, and w e hereby d o, V ACATE his sentence and REMAND to the district c ourt for further proceedings. We also AFFIRM the judgment of conviction. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 8, 2013 Ly l e W . Cay ce Clerk

*Pur suantt o 5 TH C IR

. R. 47.5, the courthas det ermined thatthi s opi ni on shoul d notbe publ i shed and i s notpr ecedentexceptunderthe l imi t ed ci rcum st ances setf orth i n 5 TH C IR

. R. 47.5.4 Case: 12-41112 Document: 00512335709 Page: 1 Date Filed: 08/08/2013No. 12-41112

FACTS On November 29, 2011 Corpus Chris t i , Texas police officers, responding to a residential shooting, discovered a f i r e a rm in Maldonado’s vehicle. They

a r r ested him. Maldonado was on parole for two prior state convictions at the time o f his arrest. An indictment, filed March 1 4, 2012, charged Maldonado with being a felon in possession of a firearm, in violation of 1 8 U.S.C. § § 922(g)(1) and 924(a)(2). Because Maldonado was in s tate custody at the time the f ederal arrest warrant was issued, h e 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 M a y 2 1 , 2012. During this proceeding, the district court a dvised h im that h i s penalty range included a ten-year maximum t e r m of imprisonment. Yet the Assistant United States Attorney (“AU SA”) stated, prior to the plea, that Maldonado could qualify as an armed career criminal. At sentencing on S e p t e m ber 25, 2012, the court announced that its reference to a ten-year m aximum term o f i m prisonment at re-arraignment was incorrect. Instead, pursuant to the P re-Sentence Investigation Repo r t, Maldonado qualified a s an armed career criminal within the meaning of U.S.S.G § 4B1.4, and 18 U.S.C. § 924(e), mandating a sentence o f no less than 15 years’ impr i s o nment. The court offered Maldonado the opportunity to withdraw his plea. He declined. Defense counsel then requested t h a t t h e court resolve the matter by imposing the 15-year sentence but have the judgment reflect that the s entence

wou l d r u n concurrently with the yet-to-be-imposed revocation of parole.

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Further, the T exas Department of Criminal Justice would be designated as the place of i ncarceration, a nd the federal sentence would b e designated as having commenced on N ovember 29, 2011, which was when Maldonado was f irst taken into state custody. When the court asked the Government to state its position, it stated: “Your honor, w e would just recommend th e m inimum m andatory. As to whether or not Your Honor chooses to directly assist i n the p arole revocation, I b elieve that’s at the discretio n 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 b e imprisoned for a term of 180 months (15 y ears) 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 s entence should be vacated and remanded. Specifically, M aldonado contends the wording of the judgment does not carry out the court’s intent to give him credit for time spent in state custody, begi n n ing 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 Unite d S t ates v. Wilson , 5 03 U .S. 329, 333-37 (1992). The Government agrees, and a lso notes in i ts briefing that th e c o u r t additionally lacks the a uthority to d esignate where the sentence w ould be served, as both determinations are r eserved for the Bureau o f 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 M a l d o n a do c redit f or the time he spent in state custody b y 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 M arch 22, 2012. See 1 8 U.S.C. § 3585(a). Although Maldonado, under Sect i on 3585(b), is entitled to credit toward his federal sentence for time spent in official detention prior t o the date his federal sentence commences that has not been credited against another sentence, only the Attorney Genera l , through the BOP, is authorized to make calculations under Section 3585. See Wilson , 503 U.S. at 333-37. The parties w e r e also clearly operating under the same mistake of law as the district court when defense counsel suggested the sentence adopted by the district co u r t and the Government did not object. In light of that error, we
c o n c lude that it i s proper to adopt the request of both parties a nd v acate t h e district court’s sentence. We AFFIRM Maldonado’s conviction, V ACATE his sentence, and REMAND to the district court for further proceedings.

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