U.S. v. Cibrian, No. 09-40048 (5th. Cir. 3/24/2010)
| Decision Date | 24 March 2010 |
| Docket Number | No. 09-40048.,09-40048. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE CIBRIAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2:08-CR-275-001.
Before: JOLLY and DENNIS, Circuit Judges, and BOYLE,* District Judge.
**
Jose Cibrian appeals his 115-month sentence for federal firearms violations ordered to run concurrently with his state sentence for aggravated assault and consecutively to an unrelated state drug possession case. A state court had previously ordered the two state sentences to run concurrently. Cibrian argues that the federal sentence is illegal because it is impossible to reconcile with the state court's order that the two state sentences be served concurrently. We find that the sentence is legal despite its incompatibility with the state sentences and AFFIRM. Cibrian's second contention is that the district court's written judgment conflicts with its oral pronouncement at sentencing that she would adjust his federal sentence for time already served in state custody on the aggravated assault conviction. Because the sentencing record establishes that the district court's intent is accurately reflected in its written judgment, we AFFIRM.
On June 7, 2007, Cibrian was arrested by the Corpus Christi, Texas police for threatening a woman with a handgun during an altercation in a motel room. Police searched the motel room and found a pistol that Cibrian admitted belonged to him. Because he is a convicted felon, Cibrian was arrested and placed in state custody.
On August 24, 2007, a state court sentenced Cibrian to seven years in state prison for aggravated assault stemming from the motel room incident. That same day, the state judge imposed a seven year sentence on Cibrian for an unrelated cocaine prosecution. The state court ordered the two sentences to run concurrently. While serving the state sentences Cibrian was indicted in federal court as a felon in possession of a firearm under 18 U.S.C. §§ 922 (g)(1) and 924 (a)(2) in connection with the weapon found in the motel room. He was thereafter transferred to federal custody on a writ of habeas corpus ad prosequendum to face the federal charges.
Cibrian pled guilty to the federal charges. For sentencing purposes, his base offense level was calculated at 24 due to his two prior convictions for violent felonies. He received a four-level increase for using a firearm in connection with the aggravated assault and a three-level decrease for acceptance of responsibility. His resulting total offense level was 25 with a criminal history category of VI. The guideline range for imprisonment was 110 to 137 months. The statutory maximum for the offense is 120 months. At his sentencing, the government requested a sentence of 110 months to run consecutively to the undischarged state sentences. Cibrian's counsel asked the court to impose a "non-guideline" sentence by ordering both of the undischarged state sentences to run concurrently with the federal sentence. This prompted the district court to ask a probation officer whether ordering the possession of cocaine sentence to run consecutively to the federal sentence would result in a non-guideline sentence. The probation officer responded that for the sentence to fall within the United States Sentencing Guidelines it should be ordered to run concurrently to the undischarged sentence for aggravated assault under section 5G1.3(b) and concurrently, partially concurrently, or consecutively to the undischarged sentence for cocaine possession under section 5G1.3(c).
The district court imposed a sentence of 115 months on the federal firearms charge and ordered the federal sentence to be served consecutively to the undischarged state prison sentence for cocaine possession. The judge did not reference the aggravated assault sentence when she imposed the sentence. Immediately after the court pronounced sentence, a probation officer present at the hearing asked the court whether she intended to impose a non-guideline sentence, to which the court responded "no." The probation officer, presumably relying on section 5G1.3(b), then told the judge that she was required to run the federal sentence concurrently with the aggravated assault sentence, take into account the amount of time Cibrian had already served in state custody on the aggravated assault charge, and adjust the federal sentence accordingly. The judge responded that she "would be happy to do that" on the aggravated assault sentence.
The subsequent written judgment correctly reflects the 115-month federal sentence ordered to be served consecutively to the cocaine case and concurrently with the aggravated assault sentence. The judgment does not, how ever, contain language adjusting the federal sentence for time served on the aggravated assault case. Instead, the judgment notes simply: "[i]t is noted that the defendant was in state custody from August 24, 2007 until September 9, 2008, when he was assumed into federal custody on a writ of habeas corpus ad prosequendum."
Cibrian appeals his sentence on two grounds. First, he maintains that his federal sentence is "illegal" or "legally impossible" to fulfill because it requires his federal sentence to run both concurrently and consecutively to two undischarged state sentences ordered to run concurrently. Next, he urges the Court to remand for entry of an amended judgment to reflect the adjustment the district court indicated it would make to his aggravated assault case.
As to Cibrian's argument that his sentence is illegal, he has not preserved this issue for appeal. "A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus obviate the need for our review." United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.1994). Failing to properly object at sentencing waives the defendant's right to full appellate review. United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.1995). In such cases, this court will review for only plain error. Id.
Here, the record demonstrates that Cibrian did ask the court to run his federal sentence concurrently with his two undischarged prison sentences. But at no time did he argue that failing to impose a concurrent sentence would result in an illegal sentence or give rise to in a sentence that was legally impossible to effectuate. Nor did Cibrian object to the district court's expressed intention, at the close of sentencing, to abide by the probation officer's advice and run the federal sentence concurrent with the aggravated assault conviction and consecutive with the cocaine conviction. Instead, Cibrian's counsel concluded his sentencing remarks by objecting to the length of the sentence as greater than necessary under 18 U.S.C.§ 3553(a).
Because Cibrian did not alert the court to the error of which he now complains, he effectively deprived the court of an opportunity to address the issue. Rodriguez, 15 F.3d at 414 (5th Cir. 1994), see also United States v. Sanchez-Hernandez, No. 08-40902, 2009 WL 3444777 ( , petition for cert. filed, (U.S. Jan. 21, 2010) (09-8733) (defendant's request for concurrent sentences "in no manner alerted the district court that the [g]uidelines were being applied impermissibly, [thus] the court was not provided an opportunity to correct its error").1 Consequently, our review of this ground will be for plain error. Id.
To establish plain error, Cibrian must make a showing that: (1) an error occurred, (2) that is clear or obvious, and (3) affected his substantial rights. United States v.Cotton, 535 U.S. 625, 631-32 (2002); United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir. 2005). Upon this showing, an appeals court may exercise its discretion to remedy the error but only "if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States, 129 S.Ct. 1423, 1429 (2009).
Cibrian claims that the district court erred by imposing an illegal sentence because "it is impossible for the single federal sentence in this case to run both concurrently with and consecutively to the two simultaneous undischarged state sentences."
A sentence may, in fact, be illegal if it is "`ambiguous with respect to the time and manner in which it is to be served, is internally self-contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the statute or is a sentence which the judgment of conviction did not authorize.'" United States v. Dougherty, 106 F.3d 1514, 1525 (10th Cir.1997) (quoting United States v. Wainwright, 938 F.2d 1096, 1098 (10th Cir. 1991).2 "Criminal sentences must `reveal with fair certainty the intent of the court to exclude any serious misapprehensions by those who must execute them.'" United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006) (quoting United States v. Daugherty, 269 U.S. 360, 363 (1926)). When a sentence is found to be ambiguous, it should be remanded for clarification in fairness to all concerned. United States v. Patrick Petroleum, 703 F.2d 94, 98 (5th Cir.1982). In Patrick Petroleum, where the sentencing transcript indicated the court had imposed $10,000 concurrent fines on each count and the maximum allowable fine was $1,000 per count, the case was remanded for clarification and re-sentencing. Id.; see also Garza, 448 F.3d at 302 (); and United States v. Cole, 241 Fed. App'x 216, 217 (5th Cir. 2007) (where a district imposed two 240-month sentences on a single count and then totaled the sentence at 365 months, the ambiguous sentence was vacated and remanded for clarification).
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