United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1079
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Michael L. Buck, *
*
Defendant - Appellant. *
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Submitted: September 23, 2011
Filed: November 16, 2011
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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BYE, Circuit Judge.
Michael Buck pleaded guilty to one count of knowingly recruiting, harboring,
transporting, providing, and obtaining a named female victim and others for labor and
services in violation of 18 U.S.C. §§ 1590 and 1594. On appeal, Buck contends: (1)
the district court1 erred in denying his motion to withdraw his plea; (2) in the
alternative, the court should have appointed counsel for the hearing on his motion to
withdraw his plea; and (3) the court’s written judgment conflicted with its oral
pronouncement on whether Buck was sentenced consecutively. We affirm.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
I
This case arises out of a commercial sex trafficking operation in Kansas City,
Missouri, and Independence, Missouri. Under the operation, Michael Buck forced
female victims to engage in sex acts by threatening them with physical harm. By way
of a telephone service, Buck would sell the services of the women in strip clubs,
motels, apartments, and houses to his customer base. Buck was charged in a seven-
count indictment with commercial sex trafficking, attempted commercial sex
trafficking, attempted production of child pornography, and document servitude. A
few weeks later, one additional count of attempted commercial sex trafficking and
one count of witness tampering were added in a superseding indictment.
Originally, the court appointed Assistant Federal Public Defender Robert
Kuchar to represent Buck. However, pursuant to Buck’s request, on April 7, 2009,
the court appointed Susan Hunt after Kuchar withdrew his representation. Despite
Hunt’s appointment, Buck once again became unhappy with his counsel, and he
moved to appoint new counsel, or, in the alternative, to represent himself, which the
magistrate judge considered in a pre-trial conference on May 4, 2010. Following the
magistrate judge’s denial of Buck’s motion, and its admonishment to Buck regarding
the perils of proceeding pro se, Hunt continued on as counsel for the remainder of the
conference. However, the magistrate judge offered to contact Buck a few days later
to determine whether he still wished to waive his right to counsel. Two days later,
Buck indicated he intended to plead guilty, but even if the case proceeded to trial, he
would continue to be represented by Hunt.
On May 12, 2010, Buck pleaded guilty to a one-count information charging
him with knowingly recruiting, harboring, transporting, providing, and obtaining a
named female victim and others for labor and services in violation of 18 U.S.C.
§§ 1590 and 1594. At the hearing, the district court asked Buck a series of questions
confirming his desire to waive certain rights and plead guilty. For instance, Buck
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acknowledged he understood he was waiving his right to be charged by indictment
in the course of pleading to the information. Buck also indicated he was satisfied
with Hunt’s representation and stated, “[s]he’s done everything to the best of her
ability that I can tell you.” On at least two more instances, Buck indicated he had no
complaints and was fully satisfied with Hunt’s representation. Turning to the plea
agreement, Buck stated he had received no promises other than those in the
agreement causing him to plead, and no one had attempted to force him to plead
guilty. Buck also confirmed he understood he would be unable to withdraw his guilty
plea if he were sentenced to a term of imprisonment of fifteen years or less, as stated
in the plea agreement. After the extensive plea colloquy, the district court accepted
Buck’s guilty plea as being made knowingly and voluntarily.
On October 21, 2010, Buck filed a pro se motion to withdraw his guilty plea.
Buck alleged Hunt had “worked in tandem” with the government attorney to threaten
and force him to plead guilty. In an accompanying affidavit, Buck alleged the
government told him he should plead guilty or he would be given life imprisonment
because the trial judge “does what the prosecutor wants.” Buck accused Hunt of
telling him to take the government’s plea deal because there was no way he could
win. Buck also stated Hunt indicated he would not receive more than a five-year
sentence, despite the agreed-upon cap of fifteen years. According to Buck, Hunt
stated the government attorney never goes to trial, and he would be offered such a
good deal “that [he] would be a fool not to take it.” Buck also alleged he was not
provided with certain discovery at the time he entered his plea, and certain matters he
requested to be investigated had not been pursued. In light of the above, Buck
desired to withdraw his guilty plea and be appointed new counsel.
On October 25, 2010, the magistrate judge conducted another hearing on
Buck’s request to proceed pro se. At the hearing, Buck professed his innocence and
discussed the conflict he was presented at the time of his plea. The government
denied Buck’s allegations and described the context of the plea meeting between it
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and Buck. Hunt also described the meetings, noting the government had told Buck
he would not win at trial, and the government had stated Buck would get a sentence
of life imprisonment if he went to trial. However, Hunt denied Buck’s allegations
concerning the fairness of the trial judge. Hunt also indicated she told Buck she did
not think he would get a life sentence, but that he would get a substantially higher
sentence than fifteen years if he did not take the plea deal. Ultimately, Hunt indicated
Buck wanted to go along with the final deal. In sealed proceedings near the end of
the hearing, Buck indicated he wanted to represent himself because his counsel had
refused to file a motion to withdraw his guilty plea for lack of a good faith basis.
After taking the matter under advisement, the magistrate judge deferred further
proceedings until November 2, 2010. At that time, the magistrate judge again advised
Buck of the disadvantages of self-representation, but ultimately granted his request
to represent himself after a thorough colloquy, with Hunt continuing on as stand-by
counsel.
A few weeks later, the district court denied Buck’s motion to withdraw his plea
after hearing extensive testimony on each of his allegations. The court found Buck
was never told he would get a life sentence if he did not plead guilty, or that he could
not have a fair trial. The court further found Hunt adequately counseled him in
relation to the plea deal, and none of her remarks forced Buck to plead guilty. The
court also concluded Buck was provided with the discovery he complained of not
receiving, and any information he claimed was not specifically investigated “was not
worth investigating.” In sum, the court stated, “I find that Ms. Hunt was not biased
towards you, and that she was not prejudiced towards you, that she in fact did capably
and adequately represent you to the point where you elected to proceed on your own
behalf.” Referring to Buck’s representations at the plea hearing of his desire and
willingness to enter a plea, the court denied Buck’s motion to withdraw his plea.
The court proceeded to the sentencing phase of the hearing, during which Hunt
returned to represent Buck. A key provision of the plea agreement discussed by the
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parties was whether Buck’s sentence would be reduced by a sufficient amount to give
him credit for the time he already served in state custody. In compliance with its plea
obligation, the government recommended Buck receive a concurrent sentence to the
sentence he was serving at the time, with credit given for time-served in state custody.
However, the government acknowledged this provision of the plea agreement was not
binding on the court. In the end, the court sentenced Buck to fifteen years of
imprisonment. Despite the recommendation from both parties to run the sentence
concurrently, the court stated, “I reject the recommendation that the sentence run
consecutively to the defendant’s imprisonment under previous state or federal
sentence.”
On December 14, 2010, a separate hearing was held on the issue of restitution.
Buck again requested the appointment of new counsel, and indicated he had looked
into the possibility of filing a suit against Hunt. After the court informed Buck he
could be represented by Hunt or proceed pro se, Buck chose the latter. The court
again advised Buck of the disadvantages of self-representation, noting:
I can tell you that it’s been my observation that Ms. Hunt has done an
admiral [sic] job of representing you in spite of the difficulties that you
have presented in the case. She, in spite of all of that, has maintained a
professional demeanor, and I have seen no evidence of anything other
than the utmost professional conduct and effort presented by Ms. Hunt
on your behalf in this case.
Restitution Tr. at 6. After hearing evidence, the court sentenced Buck to pay
$386,440 in restitution, plus interest. Later that day, the court issued its written
judgment, sentencing Buck to fifteen years of imprisonment. The judgment stated,
“[t]he term of imprisonment imposed by this judgment shall run consecutively to the
defendant’s imprisonment under any previous state or federal sentence. Any
comment by the court to the contrary or otherwise inconsistent with consecutive
sentences was a misstatement and in error.” Buck appeals.
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II
Buck first challenges the district court’s denial of his motion to withdraw his
guilty plea, which we review for an abuse of discretion. United States v. Cruz, 643
F.3d 639, 641 (8th Cir. 2011). “After a guilty plea is accepted but before sentencing,
a defendant may withdraw the plea if he establishes a fair and just reason for
requesting the withdrawal.” United States v. Heid, 651 F.3d 850, 853 (8th Cir. 2011)
(internal quotation marks and citation omitted). “While the standard is liberal, the
defendant has no automatic right to withdraw a plea.” Id. (internal quotation marks
and citation omitted).
Buck contends the court abused its discretion because he was actually innocent
of the charges against him, he entered a guilty plea only because of threats by his
counsel and the government, and his counsel was not prepared for trial. Taken
together, these complaints called into question the voluntariness of the plea,
according to Buck. Ultimately, Buck argues his relationship with counsel became so
irreparably strained that she could no longer represent him effectively.
“Defense counsel’s performance can serve as the requisite ‘fair and just reason’
for withdrawal only if the defendant demonstrates both that his attorney’s
performance was deficient and that he was prejudiced by it.” Cruz, 643 F.3d at 642
(internal quotation marks and citation omitted). “To establish deficient performance,
‘the defendant must show that counsel’s representation fell below an objective
standard of reasonableness.’” Id. (quoting Strickland v. Washington, 466 U.S. 668,
687-88 (1984)). “To show prejudice, the defendant must prove that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Id. (internal quotation marks and citation
omitted).
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We conclude the district court did not abuse its discretion in denying Buck’s
motion to withdraw his plea. First, the record demonstrates Hunt was an effective
advocate who fulfilled her obligations by pursuing Buck’s claims and conducting
investigations where appropriate. Hunt discussed with Buck the charges against him
and assessed the options he maintained with respect to pleading or going to trial. See
United States v. Murphy, 572 F.3d 563, 568 (8th Cir. 2009) (“It is undisputed [the
defendant’s] lawyer had access to the complete discovery file and discussed with [the
defendant] the charges against him and the evidence in the case. [The defendant] fails
to explain how his own lack of access to any specific discovery documents affected
his decision to plead guilty or prejudiced him in any way.”). Buck alleges Hunt failed
to pursue various leads which may have established his innocence, but these alleged
leads lacked any substance, at least in the sense that Hunt’s failure to investigate
further was not objectively unreasonable. See Cruz, 643 F.3d at 642 (concluding the
defendant’s allegations of his attorney’s deficient performance in failing to bring up
“lies” of the government were “unsupported by evidence or amount to minor
discrepancies, and counsel’s failure to pursue them at the suppression hearing was not
objectively unreasonable”). Similarly, Buck’s assertion he was forced into pleading
guilty by Hunt and the government “working in tandem” is also foreclosed by the
record. These allegations are similar to those we addressed in Cruz:
Cruz’s claim that his attorney pressured him into pleading guilty is also
unsupported by the record. Cruz testified at the plea hearing that no one
made any threats or promises, or tried to coerce him into pleading guilty.
At the hearing on his motion to withdraw, Cruz stated that his attorney
advised him to plead guilty because he had little chance of success at
trial, but in the end it was Cruz’s decision to plead guilty. This attorney
also testified at the hearing and stated that he did not threaten or coerce
Cruz, and that he had discussed the case and potential outcomes in detail
with Cruz prior to the plea hearing. The magistrate judge also
thoroughly explained the consequences of a guilty plea to Cruz at the
change of plea hearing. Many defendants face difficult choices about
whether to plead guilty or proceed to trial, and the potential
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consequences of the different options are relevant to making that choice.
An attorney’s assessment of the likely outcome at a trial is one
significant factor in a defendant’s informed decisionmaking process. It
does not amount to coercion that renders a plea involuntary.
Id. at 643. Like Cruz, the district court did not abuse its discretion in denying Buck’s
motion based on Buck’s allegations regarding Hunt’s deficient performance.
Moreover, although Buck’s dissatisfaction with his attorney may be considered
in determining whether he established a fair and just reason for withdrawing his plea,
it is not dispositive because it did not negate the voluntariness of his guilty plea.
United States v. Bastian, 603 F.3d 460, 464 (8th Cir. 2010). “When a defendant has
entered a knowing and voluntary plea of guilty at a hearing at which he
acknowledged committing the crime, the occasion for setting aside a guilty plea
should seldom arise.” United States v. Alvarado, 615 F.3d 916, 920 (8th Cir. 2010)
(internal quotation marks and citation omitted). At the change of plea hearing, Buck
confirmed several times he was satisfied with Hunt’s performance, stating, “[s]he’s
done everything to the best of her ability that I can tell you.” Buck also stated he
received no other promises forcing him to plead guilty. These sworn statements
directly contradict his current assertions. See United States v. Pacheco, 641 F.3d 970,
975 (8th Cir. 2011) (concluding the defendant provided no support for her claim she
was forced to plead guilty based on her contrary representations at her plea hearing
wherein she stated she was “fully satisfied” with her attorney’s representation);
United States v. De Oliveira, 623 F.3d 593, 597 (8th Cir. 2010) (finding no error in
the district court’s denial of the defendant’s motion to withdraw his plea where the
defendant admitted under oath his guilty pleas were voluntary, he was satisfied with
counsel’s representation, and the record did not show his counsel was deficient).
Buck’s prior sworn statements also belie his arguments with regard to the
prospective sentence he faced. Namely, whether Hunt represented to him he would
receive no more than a five-year sentence, he was fully advised in the plea agreement
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and during the change of plea hearing of the possible fifteen-year term he faced. See
United States v. Davis, 583 F.3d 1081, 1092 (8th Cir. 2009) (“Even if [the
defendant’s] allegations regarding the advice of his attorney were accepted as true,
[the defendant’s] plea agreement accurately described the procedure and requirements
for obtaining a reduction for acceptance of responsibility.”).
Finally, Buck’s claims of innocence are unsupported by any evidence. “A
conclusory assertion of innocence simply does not satisfy his burden of showing a
fair and just reason for permitting a withdrawal of what he had solemnly made under
oath.” Cruz, 643 F.3d at 643 (internal quotation marks and citation omitted). Under
the circumstances, Buck failed to show a fair and just reason for withdrawing his
guilty plea, and therefore the district court did not abuse its discretion in denying his
motion.
III
In the alternative, Buck argues he should be appointed counsel for a new
hearing on his motion to withdraw his plea because he was denied the right to counsel
during the hearing. Buck contends he made clear he did not want to represent himself
at the hearing, but the court failed to conduct a hearing on his request for counsel, and
his lack of counsel was prejudicial. For instance, he points to his inadvertent waiver
of his attorney-client privilege at the hearing, and his inability to have an attorney
conduct certain investigations he sought. Buck argues he represented himself only
because his counsel would not file a motion to withdraw his plea and his pro se
motion could only be considered if he waived his right to counsel. Under these
circumstances, Buck claims his waiver was not knowing and voluntary.
“We review denial of a request for new counsel for abuse of discretion.”
United States v. Anderson, 570 F.3d 1025, 1031 (8th Cir. 2009) (internal quotation
marks and citation omitted). “Appointment of new counsel is warranted only when
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the defendant demonstrates justifiable dissatisfaction with his appointed attorney.”
United States v. Barrow, 287 F.3d 733, 737 (8th Cir. 2002). “[J]ustifiable
dissatisfaction necessitating new counsel can arise from an irreconcilable conflict
between the defendant and the attorney, a complete breakdown in their
communications, or an actual conflict of interest resulting from continued
representation.” United States v. Rodriguez, 612 F.3d 1049, 1054 (8th Cir. 2010).
“Given the importance of the attorney-client relationship, the court must conduct an
adequate inquiry into the nature and extent of an alleged breakdown in attorney-client
communications.” United States v. Taylor, 652 F.3d 905, 908 (8th Cir. 2011)
(internal quotation marks and citation omitted).
We conclude the district court did not abuse its discretion by not appointing
new counsel for Buck in the withdrawal hearing. At the outset, we note Buck’s
contention is largely undercut by his direct statements at the withdrawal hearing:
THE COURT: And, Mr. Buck, you have previously indicated and in a
hearing before [the magistrate judge] were given the opportunity to
represent yourself on your motion to withdraw your guilty plea. Is it
still your desire to represent yourself on that matter, Mr. Buck?
THE DEFENDANT: Yes, sir.
Sent. Tr. at 3. Buck affirmatively represented he wished to represent himself during
the hearing, contrary to his current claims of wanting substitute counsel.
Even if Buck made a request for substitute counsel in his earlier written
motion, we conclude the court did not abuse its discretion in denying the request. “A
criminal defendant does not have the absolute right to counsel of his own choosing.”
United States v. Espino, 317 F.3d 788, 798 (8th Cir. 2003). Rather, “[t]he focus of
the justifiable dissatisfaction inquiry is the adequacy of counsel in the adversarial
process, not the accused’s relationship with his attorney.” Barrow, 287 F.3d at 738.
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“Justifiable dissatisfaction includes an irreconcilable conflict or a complete
breakdown in communication . . . [b]ut it does not include a defendant’s frustration
with counsel who does not share defendant’s tactical options but continues to provide
zealous representation.” Id.
As discussed above, the record fails to demonstrate Hunt was deficient in her
representation, much less a total breakdown in communication between Hunt and
Buck. To be sure, while Buck and Hunt maintained some differences on strategic
matters such as investigating certain leads, the record does not show a complete
breakdown in communication or an irreconcilable conflict. See Anderson, 570 F.3d
at 1032 (“[W]e conclude that the district court conducted an adequate inquiry into the
facts underlying [the defendant’s] complaints . . . , and did not abuse its discretion in
denying [counsel’s] ex parte motion because [the defendant] failed to show that there
was a total communication breakdown rather than an unwillingness on [the
defendant’s] part to communicate with [counsel].”) (internal citation omitted); United
States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992) (“Although [the defendant] and
his attorney differed on trial tactics and strategy, and expressed frustration with each
other, the record does not reflect an irreconcilable conflict or complete breakdown in
communication between them.”).
Given Hunt’s effective representation, the district court could require Buck to
choose between her representation and proceeding pro se. See Swinney, 970 F.2d at
498 (“[T]he district court may properly require the defendant to choose either to
proceed pro se, with or without the help of standby counsel, or to utilize the full
assistance of counsel, who would present the defendant’s defense.”). Buck was
provided with numerous opportunities to consider the pros and cons of self-
representation, and the magistrate judge and the district court repeatedly advised him
of the perils of self-representation. See United States v. Mentzos, 462 F.3d 830, 838
(8th Cir. 2006) (concluding the defendant’s decision to proceed pro se was knowing
and voluntary where the court provided the defendant with numerous opportunities
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to obtain representation, encouraged him to do so, and warned him against
representing himself); United States v. Exson, 328 F.3d 456, 460-61 (8th Cir. 2003)
(concluding the district court did not abuse its discretion in declining substitute
counsel where the court “allowed [the defendant] several opportunities to present his
concerns about his attorney” and the defendant’s allegations were inadequate to
support the appointment of new counsel). Accordingly, Buck’s “decision to represent
himself was not rendered involuntary simply because the court required him to choose
between qualified counsel and self-representation.” Mentzos, 462 F.3d at 839; see
also Taylor, 652 F.3d at 909 (concluding the district court, after properly cautioning
the defendant about the perils of self-representation, could require the defendant to
choose between proceeding pro se or proceeding with prepared counsel).
Finally, at most, the record shows Buck wanted to proceed pro se for the sole
purpose of filing his motion to withdraw his guilty plea. Indeed, after his motion was
denied, Buck again retained Hunt’s representation during sentencing, which shows
no irreconcilable conflict. During the hearing on the motion to withdraw, Buck was
able to present all of his arguments underlying his motion to withdraw his guilty plea,
and the district court conducted an exhaustive examination into each of these claims.
See Taylor, 652 F.3d at 908 (“It is clear from this record that the district court made
a careful and thorough inquiry into [the defendant’s] repeated claims of justifiable
dissatisfaction with appointed counsel [] before denying [the defendant’s] requests
for substitute counsel.”). Under these circumstances, we conclude the district court
conducted an adequate inquiry into the facts underlying Buck’s complaints and did
not abuse its discretion in denying his motion.
IV
Buck last argues the district court’s written judgment and oral pronouncement
conflict. In the plea agreement, the government stated it would recommend Buck’s
sentence be reduced “by the amount of time already served in state custody from the
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date of the first appearance in this federal case.” During the sentencing hearing, the
court inquired into the time-served credit in the plea agreement, and the government
stated it “recommend[ed] to the Court pursuant to paragraph 10(f) on page 7 of the
plea agreement that [Buck’s sentence] run concurrently.” Sent Tr. at 123. When the
court imposed Buck’s sentence, it stated, “I reject the recommendation that the
sentence run consecutively to the defendant’s imprisonment under previous state or
federal sentence.” Id. at 127. According to Buck, this statement means the court
accepted the recommendation that the sentence run concurrently. However, the
court’s written judgment stated, “[t]he term of imprisonment imposed by this
judgment shall run consecutively to the defendant’s imprisonment under any previous
state or federal sentence. Any comment by the court to the contrary or otherwise
inconsistent with consecutive sentences was a misstatement and in error.”
Buck argues the written judgment conflicts with the oral pronouncement, and
the court’s attempt to correct a substantive error in the oral pronouncement via the
written judgment was impermissible. To the extent there was ambiguity in the court’s
statement, Buck contends it must be construed favorably in his favor. Therefore,
under the oral pronouncement, Buck contends he is entitled to a concurrent sentence.
“As the government concedes, when an oral sentence and the written judgment
conflict, the oral sentence controls.” United States v. Mayo, 642 F.3d 628, 633 (8th
Cir. 2011). “There is no dispute that ambiguities in the sentence pronouncement are
to be construed in favor of the defendant.” Holloway v. United States, 960 F.2d
1348, 1358 (8th Cir. 1992). But in determining whether ambiguity exists, “[t]he
sentence pronouncement must be read carefully to discern the sentencing judge’s
intent.” Id. at 1359. “We look to both the written record and the hearing record if the
reasons provided are not irreconcilable.” United States v. Haversat, 22 F.3d 790, 794
n.2 (8th Cir. 1994). “If the actual verbal judgment is ambiguous, the intent of the
sentencing court may be construed from the entire sentencing pronouncement.”
United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994).
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In considering the record here, it becomes clear the court simply misspoke
during its oral pronouncement. Neither party recommended a consecutive sentence,
and thus the court could not have “rejected” a non-existent recommendation.
Moreover, any ambiguity in the pronouncement was further clarified by the written
judgment, which noted the prior statement regarding a consecutive sentence was in
error. Accordingly, rather than conflict with the oral pronouncement, “[t]he written
reasons appear to simply supplement the oral ruling.” Haversat, 22 F.3d at 794.
In the end, “[m]ere impreciseness of language will not negate the court’s
obvious intent.” Tramp, 30 F.3d at 1037 (internal quotation marks and citation
omitted). Here, “the intent easily discerned from a careful reading of the
pronouncement is consistent with the judgment and order of commitment entered by
the sentencing judge.” Holloway, 960 F.2d at 1359. Therefore, we reject Buck’s
argument to apply a concurrent sentence.
V
For the foregoing reasons, we affirm the district court.
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