Case: 09-40048         Document: 00511060594         Page: 1     Date Filed: 03/24/2010




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                       Fifth Circuit

                                                    FILED
                                                                               March 24, 2010
                                           No. 09-40048
                                                                           Charles R. Fulbruge III
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee

v.

JOSE CIBRIAN,

                                                       Defendant - Appellant


                        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.
PER CURIAM:**


        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



        *
             District Judge of the Northern District of Texas, sitting by designation.
        **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-40048

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.
                                I. BACKGROUND
      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.

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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, however, contain
language adjusting the federal sentence for time served on the aggravated

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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.
                                II. DISCUSSION
A. Illegal Sentence
      1. Standard of Review
      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, 

, 414 (5th
Cir.1994). Failing to properly object at sentencing waives the defendant’s right
to full appellate review.    United States v. Krout, 

, 1434 (5th
Cir.1995). In such cases, this court will review for only plain error. 

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



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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. 

(5 th Cir. 1994), see also United States v. Sanchez-
Hernandez, No. 08-40902, 

(5th Cir. (Tex.) Oct. 26, 2009),
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. 

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, 

, 631-32 (2002); United States v. Garcia-
Mendez, 

, 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, 

, 1429 (2009).
       2. Analysis
       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



       1
        The court cites to this unpublished opinion not for its precedential value but for its
factual similarity to the issue addressed above.

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of the statute or is a sentence which the judgment of conviction did not
authorize.’” United States v. Dougherty, 

, 1525 (10th Cir.1997)
(quoting United States v. Wainwright, 

, 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, 

, 302 (5th Cir. 2006) (quoting United States v.
Daugherty, 

, 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, 

, 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 

(an ambiguity in the court’s oral pronouncement,
which was not clarified by the record, required remand for re-sentencing); 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).
      Cibrian’s contention that his sentence is illegal rests upon his singular
argument that his sentence, as imposed, is legally impossible to fulfill. However,
he cites no controlling authority for this proposition. Instead, he relies upon a
footnote in United States v. Henry, 

, 308 n.16 (5th Cir. 1983), which



      2
        More broadly defined:
      An illegal sentence is one not authorized or directed by law. An illegal sentence
      is one that does not conform to or exceeds statutory limits, is not based on
      statutory authority, imposes multiple terms of imprisonment for the same
      offense, fails to conform to the oral pronouncement of sentence, is ambiguous,
      or otherwise violates the constitution or the law. Whether a sentence is illegal
      is determined by interpreting the applicable statute or constitutional provisions.
      21 AM. JUR. 2D Criminal Law § 764 (2009).


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stands for the legal principle that when two sentences cannot co-exist it “makes
sense” for the appellate court to vacate both of them on appeal. It is unclear how
this case supports Cibrian’s argument and, aside from the citation to the Henry
footnote, Cibrian supplies no further insight. The only other case Cibrian refers
us to is United States v. Contreras-Subias, 

(9th Cir. 1994), cited
in his reply brief. In Contreras-Subias, the Ninth Circuit found that a mistake
in the phrasing of the defendant’s plea agreement and in the sentence - contrary
to the clear intention of the sentencing judge - resulted in an illegal sentence.

.
      Neither Contreras-Subias nor Henry provide persuasive or binding
authority here. For that matter, none of the above-cited cases from the Fifth,
Ninth or Tenth Circuits are apposite. Cibrian’s sentence is not ambiguous,
internally inconsistent, missing an essential statutory term or uncertain as to
the substance of the applicable statute. 

(quoting

). As explained below, Cibrian’s sentence is fully
sanctioned under federal law.
      18 U.S.C. § 3584(a) empowers a district court imposing a sentence upon
a defendant who is already subject to an undischarged term of imprisonment to
exercise its discretion to make the terms run concurrently or consecutively.
Such discretion is to be exercised by the court in view of the sentencing factors
contained in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b). Section 3553(a), in
turn, requires the district court to take into account the applicable sentencing
guidelines and their attending policy statements. See 18 U.S.C. § 3553(a)(4) &
(5). Section 5G1.3(c) of the Sentencing Guidelines, which undisputedly applies
to Cibrian’s sentence, provides that in cases “involving an undischarged term of
imprisonment, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undischarged
term of imprisonment to achieve a reasonable punishment for the instant
offense.” USSG § 5G1.3(c). The corresponding application notes provide district

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courts with additional guidance and flexibility in applying section 5G1.3(c) to
factually complex cases. Application Note 3 states that in situations where a
defendant may be “subject to multiple undischarged terms of imprisonment that
seemingly call for the application of different rules,” the district court may
“exercise its discretion in accordance with subsection (c) to fashion a sentence of
appropriate length and structure it to run in any appropriate manner to achieve
a reasonable punishment for the instant offense.” USSG § 5G1.3, cmt. n.3 (D)
(emphasis added).
       Considered in concert, these sentencing provisions call for the sentencing
judge to impose a reasonable sentence and imbue the court with considerable
discretion in undertaking its task. Moreover, post-Booker,3 so long as the
sentence is imposed within a properly calculated guideline, it is considered
presumptively reasonable and is accorded great deference on review. United
States v. Candia, 

, 472-73 (5th Cir. 2006) (citing United States v.
Alonzo, 

, 554 (5th Cir. 2006)).
      Here, the district court acted well within the contours of its authority under
the foregoing sentencing authority when it imposed a sentence of 115 months to
run concurrently to the related undischarged sentence for aggravated assault and
consecutively to the unrelated undischarged sentence for cocaine possession. The
sentence is within the applicable guideline range (110-120 months) and less than
the statutory maximum (120 months). Moreover, the sentence comports with §§
3584(a) and (b). Lastly, the record reflects that the district court expressly
considered the § 3553(a) factors in deciding Cibrian’s sentence.4 Cibrian’s
sentence is thus presumptively reasonable as a matter of law and is to be
accorded great deference by this Court on review.


       3
           United States v. Booker, 

, 268 (2005).
       4
        The judge stated: “I should say also that I used the sentencing factors of 3553(a), and
in my opinion I should have given [Cibrian] at least 120 months, but I recognized... [defense
counsel’s] argument about acceptance of responsibility.” Tr. at 16.

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      Against this backdrop of legal authority, Cibrian’s claim that the district
court’s sentence constituted error, plain or otherwise, must fail. As discussed,
Cibrian’s sentence is entirely lawful. His contention that the sentence is
“impossible” to fulfill stems not from an inherent flaw on the face of the court’s
sentencing papers, as in the above-cited cases, but from the very practical
problems that arise in carrying out overlapping state and federal sentences in a
dual sovereignty. In other words, the real problem driving Cibrian’s claim is not
the lawfulness of the sentence as imposed but with the fact that it seemingly
overrides the state court’s order that the two state sentences run concurrently.
As addressed below, this happenstance does not render the sentence illegal.

       State and federal governments “may each impose a sentence upon a
defendant based on the commission of a single act constituting offenses under
both state and federal law.” United States v. Shillingford, 

, 375 (5th
Cir. 1978); Heath v. Alabama, 

, 88-93 (1985). The fact that the
resulting   sentences      may     conflict    is   a   well-recognized       by-product    of
contemporaneous jurisdiction. See Alexander Bunin, Time and Again: Concurrent
and Consecutive Sentences Among State and Federal Jurisdictions, Champion,
March 21, 1997, at 34; see also McCarthy v. Doe, 

, 120 (2d Cir. 1998).
Still, certain principles have developed to minimize jurisdictional discord. For
example, which sovereign proceeds first is normally, but not always, dictated by
which of them has “primary jurisdiction” over the defendant. Primary
jurisdiction, in turn, usually depends upon which sovereign is the first to attain
custody.5

       5
         As one commentator explained it:
       The court that gains custody of a defendant first ...enjoys ‘primary jurisdiction’
       over the defendant. When a state court with primary jurisdiction has custody
       of a defendant, a federal court may ‘borrow’ the defendant from the state court
       on a writ of habeas corpus ad prosequendum. At that point, the federal court
       has present custody of, but not primary jurisdiction over, the defendant.
       Consequently, the federal court lacks jurisdiction to interfere with a state
       sentence because the state acquires primary jurisdiction for trial, sentencing

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      Other rules for addressing state/federal sentencing clashes have developed
through the federal case law. These cases, not surprisingly, often favor the
federal courts. 

. For example, even though a state court
may order its sentence to run concurrently with a federal sentence in a related
case, the federal court is not bound by the state court’s order. Leal v. Tombone,

, 429 n.13 (5th Cir. 2003). Instead, federal courts consider
“concurrent sentences imposed by state judges [to be] nothing more than
recommendations to federal officials.” 

court is “free to turn those
concurrent sentences into consecutive sentences by refusing to accept the [state]
prisoner until completion of the state sentence.” 

not to be discounted in the maze 6 of authority affecting multi-
jurisdictional sentencing, is the power of the Bureau of Prisons (BOP) by way of
the Attorney General. The BOP - as opposed to the federal courts - is the entity
authorized to determine where a federal sentence will be served, when it begins,
and, in certain respects, how long it will last. 18 U.S.C. § 3621; see United States
v. Wilson, 

, 337 (1992) (Attorney General, through the BOP,
computes the amount of § 3585(b) credit after the defendant has begun to serve
his sentence); United States v. Dowling, 

, 393 (5th Cir. 1992) (“credit



             and incarceration. ... The state sentence is served first because the state
             has primary custody of the defendant...
Erin E. Goffette, Sovereignty in Sentencing: Concurrent and Consecutive Sentencing of a
Defendant Subject to Simultaneous State and Federal Jurisdiction, 37 Val. U. L. Rev. 1035,
1055-56 (2003).
       6
        Succinctly summing up the problem created by multi-jurisdictional sentencing, one
court observed:
       [t]he statutory scheme involving concurrent versus consecutive [s]tate and
       [f]ederal sentences, credit for time served, and the authority of the Courts,
       versus the authority of the BOP, in making those decisions, has been described
       as a “labyrinth,” which even the BOP considers as “probably the single most
       confusing and least understood sentencing issue in the Federal system.”

United States v. Smith, 

, 334, 347 (W.D. Pa. 2000)).


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awards are to be made by the Attorney General, through the Bureau of Prisons,
after sentencing”); 

(citing McCarthy v. Doe, 

(2d Cir. 1998) and Del Guzzi v. United States, 

(9th Cir. 1992)).
For instance, the BOP may refuse to accept a state prisoner into federal custody
until the state sentence is fully discharged. This refusal could operate to increase
the expected length of the state-imposed sentence if the state court ordered it to
run concurrently with the federal sentence. 

see, e.g., 

; Bloomgren v. Belaski, 

, 691 (10th Cir. 1991). Suffice
it to say that the complexities of sentencing sequences in our dual sovereignty are
well-known throughout our circuits and the resulting conflicts between state and
federal courts well-documented in the case law. How this bears upon Cibrian’s
case is discussed next.

      As it stands, the state court has primary jurisdiction over Cibrian. Barring
any accord between the state and federal authorities,7 he will remain in state
custody until his two state sentences are discharged.8 Assuming Cibrian remains
in state custody until his state sentences are discharged, he will be delivered to
federal custody with no “undischarged” state sentences to serve. United States v.
Labeille-Soto, 

(2d Cir.1998) (once a state sentence is fully
discharged, it cannot be made to run concurrently with another sentence). As a
practical matter, this nullifies the federal court’s order that Cibrian’s federal
firearms sentence run concurrently with his state aggravated assault conviction.
This eventuality, however, does not render the federal sentence illegal as argued



       7
        See 

(listing the “several ways in which the [BOP] may ‘accept’
a prisoner in primary state custody.”). Moreover, as mentioned above, one jurisdiction can
relinquish custody over a mutually sought-after defendant. 

These contingencies
presume agreement between the sovereigns.
       8
        Absent agreement, federal courts cannot compel state courts to surrender primary
jurisdiction over a mutually sought-after defendant. United States v. Warren, 

,
684 (9th Cir. 1980). Nor can their state counterparts exercise such authority when the roles
are reversed. 

n.13.

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by Cibrian. There is no inherent flaw in the federal sentence. The irreconcilability
of Cibrian’s federal and state sentences is a well-documented practicality of our
system of contemporaneous jurisdiction. In this instance, the federal sentence is
partially foiled, in other cases, it is the state sentence that suffers the intrusion.
In no case cited by Cibrian or found by us is the resulting sentence rendered
illegal.9 Cibrian, therefore, has failed to establish, any error, plain or otherwise,
committed by the district court in imposing sentence.

      B. Conflicting Oral Pronouncement and Written Sentence

      Cibrian’s second argument is that his sentence should be vacated because
the district court’s written judgment conflicts with its oral pronouncement at
sentencing. (Cibrian’s Br. 18-21.) He claims that the district court orally agreed
to adjust his sentence for time served, but its written judgment did not reflect the
adjustment.

      During its formal pronouncement of sentence, the district court stated that
Cibrian was to be imprisoned for 115 months to be served consecutively to his
prior sentence for cocaine possession.10 A probation officer present at the hearing
asked the court if it had intended to impose a “non-guideline sentence” to which
the court responded “no.” The officer proceeded to erroneously instruct the court,
presumably under § 5G1.3(b)11 , that it was required to 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 court responded
that it “would be happy to do that” as to the aggravated assault sentence. The

       9
        We are well aware of the circuit split over the authority of a federal court to order its
sentence to run consecutively with a yet-to-be imposed state sentence. Our analysis does not
concern that eventuality. See United States v. Quintana-Gomez, 

, 497 n. 2 (5th
Cir. 2008) (citing United States v. Brown, 

, 1217 (5th Cir. 1991)).
       10
            The judge did not allude to the state aggravated assault case.
       11
        The probation officer’s suggestion that § 5G1.3(b) applied to the sentencing decision
was incorrect. Because different rules apply to each of Cibrian’s two undischarged sentences,
§ 5G1.3 © and Application Note 3 apply to the entire sentencing decision.

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subsequently entered written judgment reflected the imposition of the115-month
federal sentence, that it was to run concurrently with the state aggravated
assault case and consecutively with the cocaine possession case, but was devoid
of any mention of the adjustment.

      In situations where there is a clear conflict between the court’s written
judgment and the oral pronouncement of sentence, the oral pronouncement
controls. United States v. De La Pena-Juarez, 

, 601 (5th Cir. 2000).
However, when there is simply ambiguity between the two, this Court must
review the record to ascertain the district court’s intent. 

court’s
intention is what determines the final sentence. 

re is an ambiguity
rather than a clear conflict between the formal pronouncement and its written
counterpart. The district court made no reference to a sentence adjustment
during its pronouncement of sentence. Nor is it alluded to in the judgment. It was
not until after the court had announced its sentence that the probation officer
mistakenly advised the court that it had to comply with section 5G1.3(b) to
sentence within the Sentencing Guidelines and the court agreed to make the
adjustment.

        A brief review of the record readily resolves the ambiguity. As an initial
observation, it is evident from the sentencing record that the district court
intended to impose a sentence within the Sentencing Guidelines. After the oral
pronouncement of sentence, a probation officer asked the court whether it
intended to “impose a non-guideline sentence” to which it plainly replied “no.”
The sentencing record is also quite clear that the district court’s agreement, post-
sentencing, to make an adjustment for time served was based upon its reliance
on erroneous advice suggesting that section 5G1.3(b) was the applicable
Sentencing Guideline under these circumstances.

      As discussed above, section 5G1.3(c) of the Sentencing Guidelines applies
to Cibrian’s sentence. Furthermore, under the amended version of section


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5G1.3(c), the court could not adjust Cibrian’s sentence without making a
downward departure. A 2003 amendment to the section 5G1.3(c) Application
Notes precludes a sentence adjustment for time served on a related undischarged
sentence. The amended Application Notes provide that a sentencing court may
only make an adjustment via a downward departure in “extraordinary cases.”
USSG § 5G1.3, cmt. n. 3. There is no indication that the district court considered
Cibrian’s case one of the few “extraordinary” cases calling for such treatment.
Moreover, the court’s comments on the record make abundantly clear that it did
not want to downwardly depart in Cibrian’s case. In sum, the district court’s
intent to sentence Cibrian precisely as the written judgment reflects is clear from
the record. His second ground for relief has no merit.

                               III. CONCLUSION

      For the reasons set out above, we find that the district court properly
exercised its discretion in accordance with section 5G1.3(c) of the Sentencing
Guidelines and that the written judgment reflects the district court’s true intent
in sentencing. Accordingly, the judgment of the district court is AFFIRMED in
its entirety.




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