USCA1 Opinion

                                [NOT FOR PUBLICATION]










                                 ___________________


          No. 92-1310

            


                                 JUAN CAMILO MONTOYA,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge. 
                                        _____________

                                 ___________________



                                  __________________

                                  __________________

               Juan Camilo Montoya on brief pro se.
               ___________________
               Lincoln  C.  Almond,  United  States Attorney,  Margaret  E.
               ___________________                             ____________
          Curran, Assistant U.S. Attorney, James H. Leavey, Assistant  U.S.
          ______                           _______________
          Attorney, and Ira Belkin, Assistant U.S. Attorney.

















                 Per Curiam.   We have reviewed  the parties' briefs  and
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            the record on appeal.   We agree with the  magistrate judge's

            conclusion  with  respect  to  appellant's  claim  of  newly-

            discovered evidence.

                 We also  agree that  appellant's claim that  his federal

            sentence  should be  construed as  concurrent with  his state

            sentence and that he  should be credited with time  served on

            his state sentence is meritless.

                      It  is a  firmly established  and settled
                      principle of federal criminal law that an
                      orally pronounced  sentence controls over
                      a judgment and  commitment order when the
                      two conflict.  This rule is recognized in
                      virtually every circuit.

            United States  v.  Villano, 816  F.2d 1448,  1450 (10th  Cir.
            _____________      _______

            1987)  (en  banc)  (citation  omitted).    Assuming,  without

            deciding, that the orally pronounced sentence on November 30,

            1989  conflicted with the written order of commitment of that

            date, the district  court, in any event,  clearly stated that

            "credit  [was] to  be given for  all federal  time heretofore

            served."   This was  a sufficient  indication of  the court's

            intent  that   the   term  of   imprisonment   imposed   upon

            resentencing remain  (as indisputably stated  in the original

            sentence) consecutive.

                 Finally, we summarily reject appellant's contention that

            the  district  court failed  to make  an independent  de novo

            determination,  as required by  28 U.S.C.    636(b)(1).  That

            provision expressly  permits the district court,  as was done


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            here, to accept the  findings or recommendations made  by the

            magistrate.   It does  not require, as  appellant appears  to

            suggest,  that  the  district  court  make  its  own  express

            findings.

                 We affirm the district  court order accepting the report
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            and recommendations of the magistrate judge.

                 Affirmed.
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