IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40055

UNITED STATES OF AMERICA,

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, BenavidesHernandez 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.

United States Court of Appeals

Fifth Circuit

FILED

December 13, 2013

Lyle W. Cayce

Clerk

 

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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 fiftyeight months imprisonment. Defense counsel then requested that BenavidesHernandez 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 fiftyeight 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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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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