(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1The defendant states that his true name is David Diaz, not
John David Diaz or David John Diaz.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8464
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVIS JOHN DIAZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
A 92 CR 49 01
(June 28, 1993 )
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
On February 21, 1992, officers executing a warrant to arrest
David1 Diaz for parole violations discovered 2.3 grams of cocaine

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2
in a bag under the passenger seat of his car. The bag also
contained identification papers belonging to Diaz' passenger,
Theresa Gallardo (Theresa). After being advised of her rights,
Theresa signed a consent to search the apartment where she and Diaz
lived. During the search, agents discovered the gun on which Count
III is based. Later that day, Theresa signed a statement that said
that the gun and the cocaine belonged to Diaz, and that she had not
known that the cocaine was in the bag. Diaz was charged with
possession of a controlled substance and being a felon in
possession of a firearm.
Theresa married Diaz on March 10, 1992. She subsequently
recanted her statement and gave Diaz' attorney a sworn statement
that the gun and the drugs were hers. At Diaz' preliminary
detention hearing, Theresa testified that the gun and drugs
belonged to her. The magistrate judge immediately advised Theresa
of her rights and stopped the proceedings until she had an
opportunity to confer with counsel. Theresa appeared at a
continuation of the hearing represented by counsel. She testified
that the gun belonged to her, but she invoked either the Fifth
Amendment or spousal privilege to refuse to answer almost all other
questions.
The Government subsequently issued a superseding indictment
charging Diaz and Theresa with conspiracy to possess and possession
with intent to distribute cocaine. The superseding indictment also
included the firearms charge against Diaz. The firearms charge was
severed for trial, and Diaz later pleaded guilty to that count.

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3
Shortly before Diaz' trial on the drug charges, Theresa pleaded
guilty to misdemeanor possession of a controlled substance pursuant
to a plea agreement that required her to testify against Diaz if
called to do so. At Diaz' trial, Theresa testified that the gun
and the cocaine belonged to Diaz. The jury found Diaz guilty on
the drug charges.
The probation officer determined that Diaz was a career
offender and that his offense level was 32 and his guideline
imprisonment range was 210-262 months, subject to statutory maximum
sentences of 20 years for Counts I and II and 10 years for Count
III. At the sentencing hearing, Diaz' attorney requested that Diaz
be given a two-point reduction for acceptance of responsibility on
Count III. The district court granted the reduction for acceptance
of responsibility on Count III only. The transcript of the hearing
indicates that the court, the attorneys, and the probation officer
were all somewhat confused about the effect that the reduction
would have on Diaz' sentence. The district court orally sentenced
Diaz to concurrent terms of 240 months on Counts I and II and 120
months on Count III. The written judgment issued later that day
stated that Diaz was sentenced to concurrent terms of 210 months on
Counts I and II. Citing Fed. R. Crim. P. 35, the judgment noted
that the 210 month terms of imprisonment reflected a corrected
sentence because "[d]uring the sentencing hearing, the original
term of imprisonment was imposed as a result of arithmetical error
within the determined guideline range."
The Government filed a timely Rule 35 motion to correct the

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2Diaz does not suggest that the search was invalid.
4
sentence. Fed. R. Crim. P. 35(c). The district court granted the
motion and re-sentenced Diaz to concurrent terms of 240 months on
Counts I and II. The court explained that it had not intended that
the grant of acceptance of responsibility on Count III reduce Diaz'
overall offense level from 32 to 30. The court withdrew the two-
level reduction for acceptance of responsibility on Count III and
re-sentenced Diaz to the statutory maximum term of 240 months on
Counts I and II.
OPINION
Diaz argues that the district court erred by failing to advise
Theresa that she could invoke a spousal privilege against
testifying. Even though Theresa and Diaz were not married when she
signed the consent to search the apartment and made the first
statement, Diaz also suggests that perhaps the spousal privilege
should extend to these documents because Theresa may have been his
common-law wife.2 The Court reviews these claims for plain error
because Diaz did not raise them at trial. Fed. R. Crim. P. 52(b).
Under this standard, the Court will not reverse unless it finds
error so fundamental that it caused a miscarriage of justice.
United States v. Hernandez-Palacios, 838 F.2d 1346, 1350-51 (5th
Cir. 1988).
Absent proof at trial of a common-law marriage, the Court does
not extend a testimonial privilege to "situations in which the
parties are merely living together." United States v. Snyder, 707
F.2d 139, 147 (5th Cir. 1983). Diaz introduced no proof of a

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5
common-law marriage at trial. This issue is without merit.
Only the witness-spouse has the right to invoke a privilege
not to testify. No authority has been found that suggests that a
district court has an affirmative duty to advise a witness-spouse
of this right. Assuming, arguendo, that such a duty exists, this
case still presents no reversible error. Theresa testified on
three occasions after she married Diaz. At Diaz' first detention
hearing, she testified that the gun and cocaine belonged to her.
The privilege not to incriminate one's spouse is irrelevant to such
exculpatory testimony. Theresa's testimony at the second detention
hearing also did not incriminate Diaz. Represented by counsel, she
testified that the gun belonged to her and invoked the spousal
privilege and the Fifth Amendment to refuse to answer other
questions. At trial, Theresa testified against Diaz pursuant to a
plea agreement in which the Government agreed to drop two counts of
felony drug charges pending against her. Theresa was represented
by counsel when she entered into the plea agreement, and her
testimony at Diaz' trial pursuant to the agreement was obviously in
her best interest. Diaz has not demonstrated that the district
court committed plain error by failing to advise Theresa of her
right to invoke a spousal privilege not to testify against him.
See Hernandez-Palacios, 838 F.2d at 1350-51.
Diaz suggests that the district court was without authority to
correct his sentence under Fed. R. Crim. P. Rule 35, and he urges
that this Court should reimpose the 210-month sentence stated in
the original written judgment.

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6
Rule 35(c) provides that within seven days after imposing
sentence, the district court may correct a sentence that was
"imposed as a result of arithmetical, technical, or other clear
error." Fed. R. Crim. P. 35(c). The commentary to Rule 35
characterizes the district court's Rule 35(c) authority as "very
narrow" and states that it "extend[s] only to those cases in which
an obvious error or mistake has occurred in the sentence, that is,
errors which would almost certainly result in a remand of the case
. . . for further action under Rule 35(a)." Fed. R. Crim. P. 35
advisory committee's note. In relevant part, Rule 35(a) provides
that, on remand, a district court shall correct a sentence that is
determined on appeal "to have been imposed in violation of law" or
"as a result of an incorrect application of the sentencing
guidelines." Fed. R. Crim. P. 35(a).
The transcript of the sentencing hearing makes it clear that
the district court never intended to grant Diaz a reduction for
acceptance of responsibility on Counts I and II and that the court
intended to sentence him to concurrent terms of 240 months on those
counts. See United States v. McAfee, 832 F.2d 944, 946 (5th Cir.
1987) (an oral pronouncement of sentence with clear provisions
controls a contrary, silent, or ambiguous written judgment).
Had the district court not corrected the judgment, this Court
would "almost certainly" have remanded the case for resentencing
because the 210 month sentence did not correctly reflect the law
and it resulted from an incorrect application of the sentencing
guidelines. United States v. Lara-Velasquez, 919 F.2d 946, 953-54

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and n.9 (5th Cir. 1990). Diaz was not entitled to the reduction
for acceptance of responsibility on Count III. U.S.S.G. § 3E1.1(a)
and comment. (n.1(a)); United States v. Shipley, 963 F.2d 56, 59
(5th Cir.), cert. denied, 113 S. Ct. 348 (1992) (citation omitted)
(a defendant is not entitled to a reduction for acceptance of
responsibility unless he accepts responsibility for all relevant
criminal conduct).
The correction of the sentencing error was within the
authority of the district court because the sentence in the
original written judgment reflected an "obvious error or mistake"
that "would almost certainly [have resulted] in a remand of the
case." Fed. R. Crim. P. 35 advisory committee's note.
AFFIRMED.

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