§600 Custody Credits
7th Circuit holds court cannot give credit for time served, but can make recommendation. (550)(600) While in detention for a federal offense, defendant tried to obtain witnesses to testify falsely that he had not committed the offense. As a result, a grand jury returned a superseding indictment charging him with conspiracy to obstruct justice. Defendant pleaded guilty to the underlying offense and the obstruction count. At sentencing, the court recommended to the Bureau of Prisons that defendant not receive credit for time spent in custody before sentencing because he tried to “subvert” the proceedings against him. The Seventh Circuit held that under 18 U.S.C. § 3585(b), a district court has no authority to give credit for time served, but nevertheless acted within its discretion by recommending that defendant not receive credit for time served. U.S. v. Walker, __ F.3d __ (7th Cir. Mar. 11. 2019) No. 18-2825.
5th Circuit says credit for time served is calculated by Bureau of Prisons, not court. (600) Defendant violated his supervised release by committing a state crime. The district court sentenced him to ten months with credit for time in federal custody but not time in state custody for the offense that led to his supervised release revocation. Nevertheless, the Bureau of Prisons gave defendant credit for time in state custody and released him. The district court disagreed, and held the Bureau of Prisons in contempt. The Fifth Circuit reversed the contempt order, finding that the Bureau is not bound by the district court’s instruction to give a defendant credit. Under applicable statutes the Bureau of Prisons calculates credit for time served, not the courts. In re United States Bureau of Prisons, __ F.3d __ (5th Cir. Mar. 14, 2019) No. 18-50512.
Supreme Court upholds BOP method of calculating good time credit. (600) Under 18 U.S.C. § 3624(b)(1), a federal prisoner may receive “up to 54 days at the end of each year” in good time credit. The Bureau of Prisons awards a prisoner good time credit at the end of each year of imprisonment. When the amount of time remaining on the prisoner’s sentence is less than the time remaining, BOP subtracts the accumulated good time credit from the defendant’s sentence. For the remaining time in the prisoner’s term, BOP prorates the amount of good time, with the result that a defendant sentenced to 10 years’ imprisonment could receive a maximum reduction in sentence of about 470 days. In a decision by Justice Breyer, the Supreme Court upheld the BOP’s method of calculating good-time credit, and rejected petitioner’s claim that BOP should calculate the amount of good time simply by multiplying the number of years in the sentence by the number of years to which the defendant was sentenced. Justice Kennedy wrote a dissent, which Justices Stevens and Ginsburg joined. Barber v. Thomas, 560 U.S. 474, 130 S.Ct. 2499 (2010).
Supreme Court holds BOP may categorically deny early release to prisoners who used a firearm. (600) Under 18 U.S.C. § 3621(e)(2)(B), a federal prisoner convicted of a nonviolent offense who successfully completes a substance abuse treatment program “may” have his sentence reduced by the Bureau of Prisons (BOP). After a 1995 regulation was challenged in the courts, the BOP issued a 1997 regulation categorically excluding from early release any prisoner who possessed a firearm in connection with his offense. In a 6-3 opinion written by Justice Ginsburg, the Supreme Court held that Congress’s use of the permissive “may” in the statute gave the BOP discretion to categorically deny early release to certain kinds of prisoners. The majority held that the BOP could rely on preconviction conduct, and could make categorical exclusions rather than case-by-case assessments of each prisoner. The rule of lenity did not apply. Justice Stevens dissented, joined by Chief Justice Rehnquist and Justice Kennedy. Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714 (2001).
Supreme Court vacates 9th Circuit’s “good conduct” credit for pretrial detention in county jail. (600) In MacFarlane v. Walter, 179 F.3d 1131 (9th Cir. 1999), Judge Reinhardt, joined by Judges Skopil and Graber, held that it was a violation of equal protection to give prisoners detained pretrial in county jail less “good conduct” credit than prisoners who were able to make bail and therefore not go to prison until after sentencing. In Washington State, this means that a prisoner who cannot make bail can earn less than half as much “good conduct” credit as those who serve all of their time in state prison. The panel ordered the case to be remanded with instructions to credit the prisoners with the amount of “good conduct” credit that they would have received if they had served all their time in state prison. On May 15, 2000, the Supreme Court granted certiorari and summarily vacated the Ninth Circuit’s opinion, without comment. Lehman v. MacFarlane, 529 U.S. 1006, 120 S.Ct. 1959 (2000).
Supreme Court says canceling prisoner’s early release credits violated ex post facto clause. (600) In 1983 and thereafter, Florida enacted a series of statutes authorizing prisoners to be awarded early release credits when the prisons reached certain levels of overcrowding. A 1992 statute canceled such credits for certain classes of offenders after they had been awarded—indeed after the prisoners had been released from custody. In an opinion written by Justice Stevens, the Supreme Court held that canceling the early release credits violated the ex post facto clause. The court distinguished its opinion in California Department of Corrections v. Morales, 115 S.Ct. 1597 (1995) on the ground that the 1992 Florida statute “did more than simply remove a mechanism that created an opportunity for early release.” Rather, “it made ineligible for early release a class of prisoners who were previously eligible—including some, like petitioner, who had actually been released.” Justices Thomas and Scalia concurred in part and concurred in the judgment. Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891 (1997).
Supreme Court denies custody credit for time spent on bail in community treatment center. (600) Under 18 U.S.C. § 3685(b), a defendant must be given credit for time spent in “official detention” before the sentence commences. In this case, defendant was released on bail pending sentencing and ordered confined in a community treatment center without authorization to leave unless accompanied by a Government special agent. In an 8-1 opinion written by Chief Justice Rehnquist, the Supreme Court held that, notwithstanding the “jail-type” conditions of defendant’s release on bail, his time in the community treatment center was not “official detention” and therefore he was not entitled to credit against his sentence. The opinion reversed the Third Circuit and overruled the Ninth Circuit’s contrary opinion in Mills v. Taylor, 967 F.2d 1397, 1400 (9th Cir. 1992). Justice Ginsburg concurred, but noted that the court did not address whether defendant’s decision to seek release on bail was intelligently made. Justice Stevens dissented. Reno v. Koray, 515 U.S. 50, 115 S.Ct. 2021 (1995).
Supreme Court holds that Attorney General, not the sentencing court, computes custody credits. (600) In rewriting the Custody Credits statute, 18 U.S.C. section 3568, and changing it to its present form in section 3585(b), Congress left out the formal reference to the Attorney General. Nevertheless, in a 7-2 decision written by Justice Thomas, the Supreme Court held that “the Attorney General must continue to compute the credit under section 3585(b) as he did under the former section 3568.” The court noted that at the time of sentencing, the district court often will not know how much credit the defendant will be entitled to. Thus, in light of the sentencing court’s inability to compute the credit, the Attorney General must continue to make the calculation even though section 3585(b) no longer mentions him. Justices Stevens and White dissented. U.S. v. Wilson, 503 U.S. 329, 112 S.Ct. 1351 (1992).
1st Circuit excludes state time served in deciding whether § 5G1.3 sentence is upward departure. (600) The district court sentenced defendant to 240 months, concurrent with his state sentence. Defendant argued that by failing to give him credit for the 48 months he had already served on the state offense, his 240 month federal sentence represented an upward departure from his guideline range of 210 to 262 months. The Second Circuit held that time served in state custody prior to the federal sentence should not be included under § 5G1.3(c) when deciding whether a sentence is outside the applicable guideline range. The Sentencing Commission carefully distinguished a “sentence for the instant offense” from the “total punishment”. Moreover, a criminal history departure would have been justified, since defendant had 23 criminal history points, and committed two bank robberies within one month of his release from a 15-year sentence. U.S. v. Parkinson, 44 F.3d 6 (1st Cir. 1994).
1st Circuit refuses to grant credit for time served in home confinement. (600) After sentencing defendant to a 30-month term of imprisonment, the district court granted defendant’s motion to extend the period for self-surrender from February 18 to June 1, to enable defendant to undergo necessary surgery and rehabilitation. As a condition of postponing the self-surrender date, defendant volunteered to remain in home confinement (other than physical therapy appointments) until the new surrender date. The 1st Circuit affirmed the district court’s refusal to grant defendant credit for time served in home confinement. Contrary to the government’s contention, a district court does have authority to order credit for time served. However, home confinement does not constitute “official detention” for which credit for time served is authorized under 18 U.S.C. section 3585(b). While a defendant’s movement may be severely curtailed by home confinement, “it cannot seriously be doubted that confinement to the comfort of one’s own home is not the functional equivalent of incarceration in either a practical or a psychological sense.” U.S. v. Zackular, 945 F.2d 423 (1st Cir. 1991).
2nd Circuit says delay in transferring alien to federal custody is grounds for downward departure. (600) Defendant illegally entered the country after having been deported. Before his federal conviction and after being sentenced on an unrelated state crime, he was confined for eight months in state jail on an INS detainer while awaiting transfer to federal custody. The district court applied the eight months served on the detainer toward defendant’s federal sentence by deeming that sentence to have begun when the INS placed the detainer on defendant. The court also granted defendant a one-level downward departure on the basis of his stipulated deportation. On appeal, the parties agreed that the district court erred when it deemed defendant’s sentence to have begun at the time the INS lodged its detainer. The Second Circuit vacated defendant’s sentence to allow the district court to revisit its departure decision. The time during which an alien is incarcerated solely due to the government’s delay in transferring him to federal custody and for which the alien does not receive credit provides a valid ground for departure. The court’s decision not to depart for the uncredited time served was reviewable on appeal because the court’s mistaken belief that it could directly credit defendant’s sentence may have affected its departure decision. The case was remanded to allow the district court to reconsider its departure decision. However, since defendant was no longer in the country, this limited resentencing should not take place until such time as he returned and was again before the court. U.S. v. Montez-Gaviria, 163 F.3d 697 (2d Cir. 1998).
2nd Circuit holds that court lacked authority to backdate commencement of sentence. (600) Defendant pled guilty to illegally reentering the U.S. after deportation following an aggravated felony conviction. The court imposed a 63-month sentence, but ordered that it be deemed to have commenced 18 months earlier to give defendant credit for part of the time he had served on an unrelated state criminal charge. The Second Circuit held the court lacked authority to backdate the commencement of the sentence to grant a sentencing credit. Section 3585(a) provides that a sentence begins when the defendant enters custody at, the official detention facility where his sentence is to be served. To the extent the court sought to make the current prison sentence run concurrently with the state prison sentence, the court did not have that option because by the time of sentencing, defendant’s state prison term had been fully discharged. Finally, the court had no authority to grant defendant sentencing credit for time he spent in federal custody because credit determinations are to be made in the first instance by the Bureau of Prisons, not by the district court at sentencing. U.S. v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998).
2nd Circuit rejects departure to achieve concurrent sentences where other sentence was vacated. (600) Defendant was convicted of fraud and sentenced to 47 months. He then filed a 28 U.S.C. § 2255 motion, claiming that the district court erroneously believed that the Bureau of Prisons would credit a substantial portion of pre-sentence federal detention to his federal sentence, so that his federal sentence would effectively run concurrently with a California sentence for offenses taken into account in calculating his federal sentence. The BOP had properly refused to credit defendant’s presentence federal detention to the federal sentence because it had already been credited to the California sentence, and § 3585(b) bars double-counting. The district court granted defendant’s motion, and resentenced him to time served. The Second Circuit reversed. Prior to resentencing on the 2255 motion, the California court had vacated its four-year sentence and resentenced defendant to probation. This rendered inconsequential the district court’s misunderstanding of § 3585(b) at the original sentencing, and left the court with no proper rationale for its downward departure. Even if a court may depart downward under § 5K2.0 to achieve a sentence concurrent with a discharged state sentence, this was not possible at the time of the resentencing, because the California court had vacated his original four-year sentence and resentenced him to probation. Werber v. U.S., 149 F.3d 172 (2d Cir. 1998).
2nd Circuit holds court lacked authority to order BOP to grant or deny sentencing credit. (600) The Bureau of Prisons (BOP) has sole authority to determine credit for time served under § 3585(b), and district courts have no authority to order the BOP to either grant or deny credit. In this case, defendant’s firearm conviction was vacated, and he was released from prison to serve a three-year term of supervised release on a drug count. He then violated his supervised release, and the district court sentenced him to six months’ imprisonment. However, the Bureau of Prisons (BOP) immediately released him, giving him six months credit for the time he spent in custody on his vacated firearms conviction. The government then moved under Rule 35(c) to take into account § 7B1.3(e), which says that if the court revokes supervised release and imposes a new term of imprisonment, it shall increase the term of imprisonment by the amount of time that will be credited toward the term of imprisonment under §3585(b)(1). The district court ruled that §3585(b)(1) did not apply, but directed defendant to report to the BOP to serve his six-month sentence because the offense for which it was imposed was the violation of his supervised release, not the underlying drug offense. The Second Circuit reversed this attempt to overrule the Bureau of Prisons. The district court also erred failing to apply § 7B1.3(e) and in interpreting § 3585(b) (1) as applying to the offense of violating supervised release rather than as applying to the underlying offense. However, the court lacked jurisdiction over defendant’s original sentence, which the government never appealed. U.S. v. Whaley, 148 F.3d 205 (2d Cir. 1998).
2nd Circuit says defendant need not be told he gets no credit for home detention as condition of bail. (600) In Reno v. Koray, 515 U.S. 50 (1995), the Supreme Court ruled that a federal prisoner is not entitled to credit against a sentence for time spent in non-jail confinement as a condition of release on bail. The concurring opinion of Justice Ginsburg raised the possibility that due process might require notice to the defendant that such confinement will not be credited against his sentence. The Second Circuit rejected this suggestion, holding that due process does not require notice that release conditioned on home confinement will not be credited in the later sentence. There is no relinquishment of any significant right when a defendant elects bail. Cucciniello v. Keller, 137 F.3d 721 (2d Cir. 1998).
2nd Circuit says sentences cannot be aggregated where one has already been completed. (600) Defendant was convicted of failing to surrender to begin serving a 90-day sentence for misdemeanor bank theft. Defendant asked the magistrate judge to rule that his sentence for failure to appear should be aggregated with his previous sentence for bank theft. Aggregating the two sentences would have enabled defendant to earn credit toward service of his sentence for satisfactory behavior under 18 U.S.C. § 3624. The Second Circuit held that the two sentences could not be “aggregated” because the first sentence had expired when the second was imposed. Aggregation of sentences is permitted only if multiple terms of imprisonment are imposed at the same time or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment. U.S. v. Leaphart, 98 F.3d 41 (2d Cir. 1996).
2nd Circuit says defendant must exhaust administrative remedies before asking for custody credit. (600) Defendant pled guilty to being a felon in possession of a firearm. He argued that he should have received credit for time spent in federal custody before sentence was imposed. The Second Circuit held that credit for prior custody under 18 U.S.C. § 3585(b) is granted by the Attorney General through the Bureau of Prisons after a defendant is sentenced, not by a district court at the time of sentencing. Because defendant had not exhausted his administrative remedies, he was not entitled to judicial relief. U.S. v. Keller, 58 F.3d 884 (2d Cir. 1995), abrogation on other grounds recognized by U.S. v. Brothers, 316 F.3d 120 (2d Cir. 2003).
2nd Circuit says loss of credit when defendant was in INS custody may justify departure. (600) Upon defendant’s release on bail, she was taken into INS custody. Defendant then asked that her bail be revoked, but the revocation took two weeks, and she lost sentence credit for that time. The 2nd Circuit held that defendant’s loss of sentence credit was an atypical circumstance not adequately considered by the sentencing commission, and was therefore a permissible ground for departure. U.S. v. Restrepo, 999 F.2d 640 (2nd Cir.), cert. denied, 114 S.Ct. 405 (1993) did not bar a departure. Unlike Restrepo, defendant did not seek a departure because she was subject to additional post-imprisonment civil confinement as a consequence of her alien status. Rather, she argued that bureaucratic confusion caused her to seek bail when it was not to her advantage to do so. Because the record was ambiguous as to whether the court understood it had authority to depart, remand was necessary. U.S. v. Ogbondah, 16 F.3d 498 (2nd Cir. 1994).
2nd Circuit rejects credit for time on bail pending sentence, even though restricted to residence under electronic monitoring. (600) The 2nd Circuit found no error in the district court’s refusal to grant defendant credit for the time he spent on bail pending sentencing, even though defendant was confined to his uncle’s apartment and under electric monitoring. This pre-sentence confinement was not tantamount to official detention. The court did not believe that in passing the Comprehensive Crime Control Act of 1984, Congress intended to alter the federal court holdings that defendant is not entitled to sentencing credit for time spent while released on bail pending trial or appeal. The denial of credit did not violate equal protection, even though under guideline section 5C1.1, a defendant sentenced to home detention is given credit for each day in home detention. U.S. v. Edwards, 960 F.2d 278 (2nd Cir. 1992), overruled on other grounds, U.S. v. Wilson, 503 U.S. 329, 112 S.Ct. 1351 (1992).
3rd Circuit denies custody credit where it was not clear that alien was to be criminally prosecuted. (600) Defendant argued that the district court erred in denying his request for a variance to account for the time he spent in ICE custody awaiting indictment for illegal reentry. Under 18 U.S.C. § 3585(b), “a defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences.” The definition of “official detention” does not include time spent in the custody of the INS pending a final determination of deportability, or pending the civil deportation process. The district court declined to formally grant the variance, finding that the Record of Sworn Statement did not make certain that defendant would be prosecuted for illegal reentry. The Third Circuit affirmed, ruling that the district court’s finding that defendant was not in “official detention” during this time was not clearly erroneous. There was no record from the government to indicate that a definitive decision regarding criminal prosecution was made. Moreover, the district court did give some consideration to defendant’s argument because it sentenced him at the bottom of the guidelines range. U.S. v. Lopez, 650 F.3d 952 (3d Cir. 2011).
3rd Circuit says sentencing court had authority to grant credit for time in state custody on related charge. (600) A state court sentenced defendant to five years’ imprisonment for a firearms charge. Ten months later, a federal court sentenced him to 115 months’ for charges arising from the same firearm possession. Invoking note 2 to § 5G1.3(b), defendant sought credit for the entire time he had spent in state prison before his federal sentencing. The court ruled that it had no authority to do so because only the Bureau of Prisons (BOP) could give credit for the time he was incarcerated before imposition of sentence. The Third Circuit held that the district court erred in deciding that only the BOP has the authority to grant sentencing credit in this situation. If the court had applied note 2, it could have granted a sentence adjustment of ten months, the period between defendant’s state sentencing and his federal sentencing. This period of imprisonment would not have been credited to the federal sentence by the BOP, because it represented time that defendant was already serving on his state sentence. In United States v. Wilson, 503 U.S. 329 (1992), the Supreme Court held that only the BOP has the authority under 18 U.S.C. § 3585(b) to award sentencing credit. However, Wilson did not deal with federal and state sentences arising from the same criminal episode. Note 2 does not conflict with § 3583(b). A district court can only award credit when the BOP will not. U.S. v. Dorsey, 166 F.3d 558 (3d Cir. 1999).
3rd Circuit holds defendant must first seek credit for pretrial detention from Attorney General. (600) The district court denied defendant’s motion for credit for time served under house arrest pending his appearance to enter a plea. The 3rd Circuit found that the issue of whether there was proper credit for the prior custody was not ripe. The Attorney General has the power to grant credit for pretrial custody in the first instance. A district court has no jurisdiction to grant credit for prior custody until a defendant exhausts his administrative remedies. U.S. v. Brann, 990 F.2d 98 (3rd Cir. 1993).
4th Circuit considers good time credit in deciding whether sentence exceeds life expectancy. (600) Defendant used an explosive to commit murder. The arson statute, 18 U.S.C. § 844(i), provides that where death results, the sentence shall be for any term of years, or death, or life imprisonment, as provided in 18 U.S.C. § 34. The Fourth Circuit agreed that the pre‑1994 version of § 34 in effect when defendant was sentenced barred the district court from imposing a sentence that exceeded defendant’s life expectancy, in the absence of a jury recommendation. However, the 38‑year sentence imposed did not exceed defendant’s 33.8 year life expectancy, if good‑time credits were considered. With good‑time, defendant would serve 33.1 years. To bar consideration of such credits would reward a defendant who says he is going to be a troublemaker in prison. U.S. v. Gullett, 75 F.3d 941 (4th Cir. 1996).
5th Circuit refuses to grant credit for time spent in official detention to reduce a term of probation. (600) Defendant argued that the time he served in prison prior to his sentencing should be credited towards the community confinement portion of the three year sentence of probation he eventually received. The 5th Circuit rejected this argument because the statute governing credit for time served, 18 U.S.C. section 3585(b), only allows credit for presentence official detention to be applied to a term of imprisonment, not a term of probation. Under the Supreme Court’s recent decision in U.S. v. Wilson, 112 S.Ct. 1351 (1992), a necessary condition to obtaining a section 3585(b) credit is that the offender must first exhaust his administrative remedies with the Bureau of Prisons. However, defendant was not committed to the custody of the Bureau of Prisons after sentencing and his sentence of probation is not supervised by the Bureau of Prisons. Thus, he cannot exhaust his administrative remedies before it. This scheme does not violate equal protection. U.S. v. Dowling, 962 F.2d 390 (5th Cir. 1992).
6th Circuit says sentencing credit question not ripe for review until Bureau of Prisons has ruled. (600) Defendant argued that the trial court did not give him sentencing credit for the ten months he was released on a personal recognizance bond. The Sixth Circuit said the issue was not ripe for review because the Bureau of Prisons had not ruled on defendant’s request for credit. U.S. v. Cobleigh, 75 F.3d 242 (6th Cir. 1996).
6th Circuit refuses to order federal sentence to run from date defendant began serving state sentence. (600) Defendant asserted that because both his federal and state sentences involved the same underlying conduct, his federal sentence should have been imposed nunc pro tunc from the date he began serving his state sentence. He relied on a 1992 amendment to § 5G1.3 and an accompanying application note that require an “adjustment” for sentences based on the same underlying conduct. The 6th Circuit refused to require the federal sentence to run nunc pro tunc from the date defendant began serving his state sentence. Defendant was properly sentenced under the 1988 guidelines, since these were the guidelines in effect at the time of sentencing. The 1992 amendment to § 5G1.3 was not a clarification, but a substantive change. Under the 1988 guidelines, the district judge retained full discretion to impose a consecutive sentence. Instead, the judge ran defendant’s state and federal sentences concurrently. The court did not abuse its discretion in refusing to impose the federal sentence nunc pro tunc. U.S. v. Milton, 27 F.3d 203 (6th Cir. 1994).
6th Circuit holds that use of wrong guideline range in giving credit for custody was harmless. (600) Defendant’s structuring offense originally had a guideline range of 46 to 57 months. The criminal history score was based, in part, on a 1989 firearm conviction, which was on appeal at the time of sentencing. Three months after sentencing, the firearm conviction was reversed, and the 6th Circuit remanded the structuring case for resentencing on unrelated grounds. The district court decided to give defendant “some credit” for the 11 months he spent in prison on his firearm conviction prior to his structuring conviction. So it took 11 months off the original 57-month sentence, arriving at a 46-month sentence. Defendant argued that the district court should have started from the new range of 41 to 51 months, instead of the old range of 46 to 57 months. The 6th Circuit found no error. While the district court may have technically erred in formulating his sentence by using the wrong guideline range, the court stated that it would give defendant “some” credit for the time served. It never stated that it would give him a full 11 months for the time served. U.S. v. Akrawi, 982 F.2d 970 (6th Cir. 1993).
7th Circuit remands to allow credit for defendant’s pretrial detention. (600) Defendant was sentenced on crack charges to 262 months. The appellate court remanded for resentencing under the Fair Sentencing Act in accordance with Dorsey v. U.S., 132 S.Ct. 2321 (2012). After resentencing, defendant argued that the district court committed procedural error when it failed to exercise its discretion to adjust his sentence downward to account for the time defendant spent in pretrial custody after the Bureau of Prisons (BOP) declined to credit him for that time. At the time of the 2011 sentencing, the BOP had not yet determined how it would treat the period of pre-trial detention, when defendant was finishing a sentence imposed by the state for conduct that could be considered related to the offense of conviction in federal court. The parties agreed that the court misapprehended its discretion to adjust defendant’s sentence to account for the eight months he was held in pretrial custody. The court made clear that it would have sentenced defendant differently if it had known the BOP would take this approach. The Seventh Circuit ruled that a remand was warranted for the limited purposes of allowing the district court to adjust defendant’s sentence to account for his eight-month pretrial detention. U.S. v. Whitlow, 740 F.3d 433 (7th Cir. 2014).
7th Circuit allows court to credit time served to make federal sentence fully concurrent to state sentence. (600) Defendant pled guilty to being a felon in possession of a firearm and received a 15-year mandatory minimum sentence. At the time he was sentenced, defendant had served about nine months on an unrelated state sentence. The district court imposed defendant’s federal sentence to run concurrently with the remainder of that state sentence, but did not credit the nine months he had already served, believing that § 5G1.3(c) did not give it authority to impose his federal sentence “fully” concurrently with his state sentence. The Seventh Circuit held that the district court had discretion to adjust defendant’s sentence to credit time he served on the unrelated state term. Although § 5G1.3(c) does not expressly authorize a downward adjustment of a sentence to take into account a period already served on an undischarged term of imprisonment, its failure to do so does not restrict that discretion after Booker. The § 924(e)(1) mandatory minimum to which defendant was subject also did not preclude the sentence adjustment. The mandatory minimum requirement is satisfied so long as a defendant’s total period of incarceration equals or exceeds the statutory minimum. U.S. v. Campbell, 617 F.3d 958 (7th Cir. 2010).
7th Circuit holds that court should have reduced sentence rather than ordered BOP to grant credit. (600) Defendant broke into a home and stole a handgun. A state court sentenced him to 20 years in prison for the residential burglary. He then pled guilty in federal court to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). By the time the district court sentenced defendant, he had already served 34 months on the undischarged state sentence. Because defendant’s burglary conviction was “fully taken into account” in the offense level calculation, the district court found that USSG § 5G1.3(b) required concurrent sentences. Further, Note 2 required the court to reduce his federal sentence by the 34 months he had already served on the undischarged state sentence. However, instead of sentencing defendant to 154 months, the court sentenced defendant to 188 months and attempted to order the Bureau of Prisons (BOP) to give defendant a 34-month credit against that term. The Seventh Circuit held that the district court had no authority to order the BOP to give defendant the sentencing credit, since that authority rests exclusively with the BOP. Section 3585(b) actually forbids the BOP from giving credit for presentence custody when that credit has been applied against another sentence. Rather, Note 2 to § 5G1.3 required the sentencing court to reduce by 34 months his 188-month guideline sentence and impose a net sentence of 154 months. U.S. v. Ross, 219 F.3d 592 (7th Cir. 2000).
7th Circuit holds that state home detention is not a term of imprisonment. (600) Defendant stole jewelry from old and infirm clients for whom she performed home nursing services. Wisconsin sentenced defendant to 14 months in prison, followed by home detention. Federal prosecutors, believing the sentence was too light, also charged her. Under § 5G1.3(b), a court must give credit for an undischarged term of imprisonment attributable to an offense fully taken into account in determining the offense level for the instant offense. The guidelines called for a 46 month sentence. The district court gave defendant credit for the Wisconsin incarceration, and imposed a 32-month sentence. The Seventh Circuit affirmed, holding that defendant’s home detention was not a term of imprisonment for which she should have received sentencing credit. The meaning of imprisonment is a question of federal law, and does not depend on the label states attach to their sanctions. “Imprisonment” is used throughout the guidelines to denote time in a penal institution. Home detention differs from imprisonment—it is not imprisonment, but a substitute for imprisonment. U.S. v. Phipps, 68 F.3d 159 (7th Cir. 1995).
7th Circuit has no jurisdiction to review award of custody credit. (600) Defendant violated his supervised release by committing a theft. On June 7, he was arrested on retail theft charges. He pled guilty and was sentenced in state court. On November 29, defendant was released from state prison and transferred to federal custody. His supervised release was revoked and he was sentenced to 24 months’ imprisonment. Defendant argued that he should have received credit for time served from June 7, the date of his state arrest and placement on federal detainer, instead of merely from November 29. The Seventh Circuit held that it had no jurisdiction over this issue, since it is the Attorney General, and not the sentencing court, that computes the credit due under 18 U.S.C. § 3585(b). U.S. v. McGee, 60 F.3d 1266 (7th Cir. 1995).
7th Circuit cannot review refusal to depart to give credit for time served on related offense. (600) Defendant sought credit for a 12-month federal sentence and a two-month state sentence because the underlying conduct was part of the instant conspiracy and was taken into account in defendant’s base offense level. Section 5G1.3 requires concurrent sentences for such offenses, but defendant had completed his sentences and therefore had no “undischarged term of imprisonment.” Note 2 to § 5G1.3 states that in such situations, the court should adjust the instant sentence to account for any sentence already served. The district court declined to depart downward and grant defendant the credit, because he had received a lower sentence than he should have for the earlier offense. The Seventh Circuit held that it lacked discretion to review the court’s refusal to depart under § 5G1.3. But it encouraged the court to revisit this issue on remand. The mistake in Kansas did not justify denying the departure, since any additional sentence in Kansas would have been added to his credit in this case. U.S. v. Blackwell, 49 F.3d 1232 (7th Cir. 1995).
7th Circuit lacks jurisdiction to consider credit for time defendant assisted government. (600) Defendant argued that the district court erred by failing to consider whether he should receive credit for his time spent in assisting the government. The 7th Circuit held that it did not have jurisdiction to consider the argument. Only the Attorney General, through the Bureau of Prisons, has authority to determine when to give a defendant credit against a sentence for time served. The appellate court also ruled it had no jurisdiction to review the district court’s failure to depart on these grounds. U.S. v. Jones, 34 F.3d 495 (7th Cir. 1994).
7th Circuit says court should credit federal sentence for time already served in state prison for same offense. (600) Defendant’s drug sentence was enhanced under § 3C1.2 for recklessly endangering a police officer during defendant’s flight from arrest. Defendant challenged the enhancement since he was already serving a four-year sentence in state prison for the same offense. The government conceded that the district court may have erred in failing to credit defendant’s federal sentence for time already served in state prison for the same offense under § 5G1.3(b). The 7th Circuit agreed that the district court erroneously failed to make the adjustments required by § 5G1.3(b) and note 2. Section 5G1.3(b) required that defendant’s federal sentence run concurrently to his state sentence, and required the court to adjust the federal sentence for time already served. U.S. v. Bell, 28 F.3d 615 (7th Cir. 1994).
7th Circuit says defendant not entitled to substantial assistance departure for time served in work release center. (600) Defendant argued that he should have received custody credit for time he served in a work release center pending sentencing. He acknowledged that the only way he could received such credit was through a downward departure for substantial assistance to authorities. However, he believed he deserved such a departure because the transfer was for health reasons; if he were gravely ill or dead he would have been unable to testify against a co-conspirator. The 7th Circuit held that defendant waived this “creative” argument by failing to raise it below. Moreover, defendant did not provide substantial assistance by being detained at the work release center rather than the county jail. There was no evidence that defendant’s health problems were so serious that he would have been too ill to testify against his co-conspirator if he had been detained at the county jail during the entire presentence period. U.S. v. DeMaio, 28 F.3d 588 (7th Cir. 1994).
7th Circuit upholds district court’s refusal to award good time credit. (600) The 7th Circuit upheld the district court’s refusal to award good time credit against defendant’s federal sentence for time he spent in state custody. The federal good time statute, 18 U.S.C. section 3642, makes it clear that it is the Bureau of Prisons, not the court, that determines whether a federal prisoner should receive good time credit. U.S. v. Evans, 1 F.3d 654 (7th Cir. 1993).
7th Circuit rules that defendant must seek sentencing credit under 18 U.S.C. 3585 from Attorney General. (600) Defendant contended that the district judge erred in not giving him credit for time served prior to sentencing pursuant to 18 U.S.C. section 3585(b). The 7th Circuit ruled that defendant must first seek the section 3585 credit from the Attorney General, and the district court has jurisdiction only to review the Attorney General’s decision pursuant to 28 U.S.C. section 2241. A previous provision, repealed when section 3585(b) was enacted, gave the responsibility for making these decisions to the Attorney General. In enacting section 3585, Congress did not intend to relieve the Attorney General of this responsibility. U.S. v. Koller, 956 F.2d 1408 (7th Cir. 1992).
8th Circuit departs down to give credit for time served on expired sentence. (600) Defendant, a senior partner in a large law firm, made $4 million in the stock market using inside information. He used the profits to conceal previous embezzlements and conversions of clients’ trust funds. Defendant was convicted of various securities fraud offenses. At sentencing, the district court gave him credit for 23 of the 30 months he served in state prison for state law convictions arising from his theft of the client trust funds. Defendant had already served his state sentence in full at the time the district court sentenced him. The Eighth Circuit upheld the departure. The conduct underlying the state law convictions was “inextricably intertwined” with the federal convictions. Nothing in the guidelines forbids a departure when the defendant has already served a state sentence for relevant conduct. The inclusion of unexpired sentences without providing for expired sentences in § 5G1.3 indicates that the Sentencing Commission may not have considered this. Nothing in the 1987 guidelines suggests the Commission rejected the idea of giving credit for expired sentences. In fact, the commentary to the 1987 version of § 5G1.3 states that departure is warranted when independent prosecutions produce anomalous results that circumvent or defeat the intent of the guidelines. U.S. v. O’Hagan, 139 F.3d 641 (8th Cir. 1998).
8th Circuit upholds custody credit where parties did not support contradictory assertions and record was “deplorable.” (600) In sentencing defendant on the instant drug charges, the district court gave defendant credit for presentence custody beginning February 15, 1994. He had previously been in state jail on unrelated charges until he was released to the U.S. Marshal for trial in federal court. The Eighth Circuit affirmed the award of custody credit, since the parties did not identify any portion of the record to support their contradictory assertions concerning the duration of defendant’s state sentence. The record was in a “deplorable” state, and “utterly devoid” of the materials necessary to resolve the issues raised on appeal. Therefore, the appellate court was unable to find that the district court clearly erred in awarding the custody credit. U.S. v. Torres-Diaz, 60 F.3d 445 (8th Cir. 1995).
8th Circuit holds time served under concurrent sentences may be considered time “imprisoned” under § 924(e)(1). (600) Defendant robbed a restaurant using a firearm. He was convicted in state court of robbery charges; and was convicted in federal court of firearms charges. Because of his three prior violent felonies, he was subject to a mandatory minimum 15-year sentence under 18 U.S.C. § 924(e)(1). It was agreed that defendant’s state and federal sentence should be concurrent under § 5G1.3(b). Defendant argued that he was entitled to a sentence reduction for the full 14 1/2 months he spent in state custody prior to his federal conviction under application note 2 to § 5G1.3. The district court agreed as to the time defendant had served in state prison but concluded that it was without authority to impose a sentence of less than the 15-year minimum. The 8th Circuit reversed, holding that time previously served under concurrent sentences may be considered time “imprisoned” under § 924(e)(1) if the guidelines so provide. Therefore, the district court erred in stating that it had no discretion under § 5G1.3(b) to reduce defendant’s mandatory minimum sentence for the time he served in state prison as a result of the same course of conduct. U.S. v. Kiefer, 20 F.3d 874 (8th Cir. 1994).
8th Circuit remands for clarification as to why BOP denied defendant credit for time served. (600) On June 23, 1989, defendant was sentenced to 10 years in Iowa state prison. He was then transferred to federal custody, and sentenced by the district court on October 39, 1989. He contended that the Bureau of Prisons (BOP) erred in refusing to credit his time in federal custody against his federal sentence. The parties agreed that if this time was credited against his Iowa sentence, defendant was not entitled to credit on his federal sentence. The 8th Circuit remanded for the district court to seek clarification as to why the BOP denied defendant credit for the period between June 23 to October 30. Neary v. U.S., 998 F.2d 563 (8th Cir. 1993).
8th Circuit, en banc, rules that presentence time spent in halfway house is not “official detention.” (600) Disagreeing with the 9th Circuit, and agreeing with the 1st, 2nd, 4th, 5th, and 10th Circuits, the en banc 8th Circuit held that the time defendant spent in a halfway house prior to trial and sentencing did not constitute “official detention” under 18 U.S.C. section 3585(b). Thus, he could not receive custody credits for the time spent in the halfway house. The court found the statutory language ambiguous, and observed that the Bureau of Prisons reasonably resolved this ambiguity by differentiating between residential community centers and jail-like facilities based on the amount of restraint used at the facility. Judge Loken concurred. Senior Judge Heaney, joined by Chief Judge Lay and Judges McMillian, Arnold, and Gibson dissented, believing that the degree of confinement and restraint was sufficient in this case to constitute official detention. U.S. v. Moreland, 968 F.2d 655 (8th Cir. 1992) (en banc).
8th Circuit denies credit for time spent under pretrial house arrest. (600) The 8th Circuit held that defendant was not entitled to credit for time he spent under pretrial house arrest. House arrest restrictions placed on a defendant as a condition of pretrial release do not constitute official detention within the meaning of 18 U.S.C. section 3585(b). Moreover, under the recent Supreme Court decision in U.S. v. Wilson, 112 S.Ct 1351 (1992), the Attorney General, rather than the district court must determine credit for pretrial confinement. U.S. v. Blumberg, 961 F.2d 787 (8th Cir. 1992).
8th Circuit, en banc, holds that house arrest does not constitute “official detention.” (600) The 8th Circuit, en banc, upheld the denial of credit for time defendant spent under pre-trial house arrest. Defendant’s house arrest restrictions did not constitute “official detention” within the meaning of 18 U.S.C. section 3585(b). Chief Judge Lay, joined by Judge McMillian, dissented, believing that detention in one’s home does constitute official detention under section 3585(b). U.S. v. Wickman, 955 F.2d 592 (8th Cir. 1992) (en banc).
8th Circuit holds that federal law on “good time” credits and concurrent sentencing applies to Indian offenses. (600) The incorporation of state law in the Indian Major Crimes Act does not mean that federal courts must follow “every last nuance of the sentence that would be imposed in state court.” Thus the 8th Circuit held that since the prisoner was a federal prisoner, the conditions of his confinement and release on parole should be controlled by federal correctional policies. To hold otherwise would be to have two classes of prisoners serving in the federal prisons: Assimilative Crimes Act prisoners and all other federal prisoners. The court found that this would be disruptive, and was not required under federal law. U.S. v. Norquay, 905 F.2d 1157 (8th Cir. 1990).
9th Circuit rejects claim that Commission’s calculation of good time credit differs from BOP’s. (600) At sentencing, defendant sought a variance from his Guidelines range based on the Bureau of Prisons’ calculation of good time credits based on time served. Defendant argued that sentences set by the Sentencing Commission rested on the premise that good time was calculated based on the sentence imposed. The Ninth Circuit rejected this contention, finding that there was insufficient evidence that the Commission used a different means to calculate good time credit than the BOP. U.S. v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011).
9th Circuit says federal prisoner not entitled to good time credit for state sentence. (600) Defendant was convicted of burglary in state court and sentenced to 10 years in prison. After he began serving his state sentence, he was convicted in federal court of possession of a firearm by a convicted felon based on a gun he was carrying during the burglary. At sentencing on the firearms offense, the district court decreased defendant’s sentence by nine months to 94 months because he was serving a state sentence on a related crime. The court imposed the federal sentence to run concurrently with defendant’s state sentence. When defendant began serving his federal sentence, the Bureau of Prisons calculated the good time credit he would receive based only on the 94-month sentence imposed by the federal court; the BOP did not give defendant good time credit for the time spent in state custody before he began serving his federal sentence. The Ninth Circuit held that because defendant was not serving his federal sentence while in state custody, the BOP had no authority to grant him good time credit for that sentence. Schleining v. Thomas, 642 F.3d 1242 (9th Cir. 2011).
9th Circuit finds habeas petition challenging sentence calculation moot after prisoner’s release. (600) Under 18 U.S.C. § 3621(e)(2)(B), the Bureau of Prisons has authority to grant a reduction of one year in the sentence of a defendant convicted of a nonviolent felony who successfully completes a residential drug abuse treatment program. Defendant filed a habeas petition challenging the BOP’s decision that possession of a firearm by a convicted felon was a violent offense. In an unrelated case, the Ninth Circuit rejected the BOP’s rule, finding that possession of a firearm was not a violent felony. When the Ninth Circuit issued its opinion, defendant had seven months remaining on his sentence, and the BOP released him from incarceration. The district court then dismissed his habeas petition as moot. The Ninth Circuit agreed that the case was moot, finding that defendant’s desire for a ruling on the legality of his incarceration for the five months before the Ninth Circuit found the BOP rule invalid was insufficient to avoid mootness. Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010).
9th Circuit says failure to give defendant credit for undischarged sentence is plain error. (600) The Guidelines, § 5G1.3(b)(1), provide that a sentence should be adjusted to take into account a period of imprisonment served on an undischarged sentence if the undischarged sentence was imposed for an offense that constitutes relevant conduct for the offense of conviction. At defendant’s sentencing, the district court failed to give defendant credit for time spent on an undischarged state sentence that satisfied § 5G1.3(b) (1). The Ninth Circuit held that the district court committed plain error by failing to give the defendant the credit required by § 5G1.3(b)(1), even though the Guidelines are now advisory. U.S. v. Armstead, 552 F.3d 769 (9th Cir. 2008).
9th Circuit says BOP’s violation of APA in good-time regulation did not require change in policy. (600) A federal statute, 18 U.S.C. § 3624, provides that a federal prisoner may receive good-time credit of up to 54 days a year at the end of each year of the prisoner’s term of imprisonment. Since 1988, the Bureau of Prisons has interpreted the statute to require good-time credit based on the time served by the prisoner, not based on the sentence imposed. Notwithstanding Ninth Circuit decisions upholding that approach, petitioner challenged the BOP’s interpretation on the ground that BOP had violated the Administrative Procedures Act when it promulgated the regulation containing its interpretation by failing to articulate a rational basis for its interpretation. The BOP conceded that it violated the APA by failing to articulate in the administrative record its rationale for its interpretation of the good-time statute. The Ninth Circuit held that the appropriate remedy for the APA violation was simply to follow the interpretation promulgated by BOP in a program statement issued before it promulgated the regulation. Because that program statement contained the same interpretation of the statute as the regulation, petitioner was not entitled to relief. Tablada v. Thomas, 533 F.3d 800 (9th Cir. 2008).
9th Circuit holds that court lacks authority to grant credit for time served. (600) After being convicted of assault, defendant was sentenced to a two-year term of probation, during the first six months of which he was required to serve weekend jail time. Defendant violated his probation conditions, and the district court revoked his probation and sentenced him to four months in custody. The court refused to give defendant credit for the ten days of weekend time he had spent in jail before he violated his probation conditions. The Ninth Circuit affirmed, holding that the district court lacked authority at sentencing to grant defendant credit for his weekend time served. Instead, the court held, the initial determination whether to grant credit for time served belongs to the Attorney General. U.S. v. Peters, 470 F.3d 907 (9th Cir. 2006).
9th Circuit holds that juveniles must receive credit for time spent in pretrial detention. (600) Under 18 U.S.C. §3585(b), a defendant must be given credit on his sentence for time spent in pretrial detention for the offense of conviction. The Bureau of Prisons does not interpret this statute to apply to juveniles sentenced under the Federal Juvenile Delinquency Act and therefore does not give juveniles credit on their sentences for time spent in detention prior to sentencing. The Ninth Circuit held that juveniles must receive credit for time spent in detention prior to the imposition of sentence. Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006).
9th Circuit holds that Bureau of Prisons did not err in refusing to designate state prison for service of federal sentence. (600) While in Oregon state custody, defendant asked that the Oregon Department of Corrections request that the federal Bureau of Prisons designate an Oregon state facility for service of defendant’s outstanding federal sentence so that the sentences could be served concurrently. The Oregon authorities made the request. Relying on a BOP Program Statement, the BOP declined the request, finding no indication that the federal court that sentenced defendant intended his federal sentence to run concurrently with his state sentence. The Ninth Circuit affirmed, holding that the BOP had not abused its discretion in denying the request and that the BOP Program Statement did not violate the doctrine of dual sovereignty, principles of comity and federalism, or the Full Faith and Credit Clause of the Constitution. Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002).
9th Circuit bars restitution claim on habeas even if posed as ineffective assistance or joined with claims seeking release. (600) In U.S. v. Kramer, 195 F.3d 1129 (9th Cir. 1999), the court held that a federal prisoner could not bring a motion under 28 U.S.C. § 2255 to challenge a restitution order because § 2255 was limited to claims in which the defendant seeks relief from custody. The Ninth Circuit held that Kramer bars consideration of a restitution claim in a § 2255 proceeding even if defendant raises other claims that seek his release from custody. Likewise, the court held, a defendant cannot challenge a restitution order by claiming that his counsel was ineffective in not challenging the original imposition of the order. U.S. v. Thiele, 314 F.3d 399 (9th Cir. 2002).
9th Circuit reaffirms BOP’s discretion to deny early release to prisoners who possessed a dangerous weapon. (600) Prison officials determined that petitioner was not eligible for early release under 18 U.S.C. § 3621(e)(2)(B), because he had received a two-level enhancement under USSG § 2D1.1 for carrying a gun during his drug offense. The district court granted his habeas petition, but before his appeal was heard, the Ninth Circuit, in Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000), upheld the Bureau of Prisons’ discretion to exclude prisoners such as petitioner from eligibility for early release, as an exercise of the BOP’s discretion under 18 U.S.C. § 3621. At the time, the circuits were split over the validity of the BOP’s 1997 program statement and regulation. However, the Supreme Court later resolved the split in Lopez v. Davis, 531 U.S. 230 (2001), agreeing with Bowen. Nevertheless, in this appeal, the petitioner argued that the 1997 interim regulation was promulgated without an adequate time for notice and comment, in violation of the APA. Judge Graber, joined by Judges T.G. Nelson and Rawlinson, found it unnecessary to address this issue, because even if the interim regulations were invalid, the program statement, which predated the amended rule, remained viable, and provided an adequate basis for the Bureau of Prisons’ decision to exclude petitioner from the program. Grassi v. Hood, 251 F.3d 1218 (9th Cir. 2001).
9th Circuit says district court may not give defendant credit for time in state custody. (600) Defendant’s conviction for Hobbs Act robbery and other charges rested on conduct that formed the basis for a state conviction that had been reversed. At his federal sentencing, he sought credit for time he spent in state custody for the reversed conviction. The Ninth Circuit held that the Attorney General, not the district court, was responsible for calculating defendant’s sentence credits for time served on the prior state offense and thus that the district court did not err in refusing to give defendant the credit. U.S. v. Pizzichiello, 272 F.3d 1232 (9th Cir. 2001).
9th Circuit upholds Bureau of Prisons’ method of calculating good-time credit for one-year sentences. (600) Federal law, 18 U.S.C. § 3624(b)(1), allows a prisoner to receive up to 54 days of good-time credit “at the end of each year,” and the Bureau of Prisons normally calculates each defendant’s good-time credits at the end of each year. For defendants serving sentences of only a year and a day, however, the Bureau prorates good-time credit during the year by awarding 0.148 day of credit for each day of good behavior. The Ninth Circuit upheld this approach as consistent with § 3624(b)(1). It rejected defendant’s contention that the Bureau should award good-time credit based on the sentence imposed, and not the sentence served. Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001).
9th Circuit says Koray applies retroactively to deny custody credit for time on bail in drug program. (600) In Reno v. Koray, 515 U.S. 50, 52 (1995), the Supreme Court held that a defendant could not receive custody credit under 18 U.S.C. § 3585(b) for time spent in a community treatment center as a condition of release on bail. In the present case, petitioner sought custody credit for time spent before June 5, 1995, when Koray was decided, arguing that Koray should not be applied retroactively to him. The district court agreed, relying on the three-factor test in U.S. v. Robinson, 958 F.2d 268, 271 (9th Cir. 1992). On appeal, the Ninth Circuit disagreed, holding that the three-factor test had been discredited by Griffith v. Kentucky, 479 U.S. 314 (1987) and Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). Under Griffith and Harper, a decision announcing a new constitutional rule of law is to be applied retroactively to all criminal cases pending on direct review, without exception. Nor did retroactive application violate Teague v. Lane, 489 U.S. 288 (1989) or Bouie v. City of Columbia, 378 U.S. 347 (1964). Teague does not apply to new interpretations of federal substantive law, and Koray did not enlarge the scope of defendant’s criminal liability, so Bouie does not apply. U.S. v. Newman, 203 F.3d 700 (9th Cir. 2000).
9th Circuit allows BOP to exclude firearms offenders from drug program, but not retroactively. (600) In 18 U.S.C. § 3621(b), Congress directed the Bureau of Prisons to provide substance abuse treatment to prisoners, and authorized it to reduce the sentences of prisoners convicted of “nonviolent offenses” by up to one year. At first, the Bureau interpreted the statute to prevent a reduction for defendants who were convicted of possession, carrying or use of a firearm. However, the Ninth Circuit rejected this interpretation of the meaning of “nonviolent offense.” See Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997). The Bureau acceded to that interpretation, but then exercised its discretion under the statute to refuse early release to prisoners convicted of such firearms offenses. In a per curiam decision, the Ninth Circuit deferred to the Bureau’s interpretation of the statute to allow it to exercise discretion to categorically refuse to reduce the sentence of armed felons. Thus, the Bureau’s discretion was validly exercised. However, the court held that the Bureau’s new exercise of its discretion could not be applied retroactively to inmates who had already been notified that they were eligible for early release. See Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997). Judge Fernandez dissented from the ruling forbidding retroactive application. Judge Thomas dissented from the holding that the bureau could categorically exclude prisoners expressly declared eligible by Congress, noting that he joined the Tenth and Eleventh Circuits in this view. Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000).
9th Circuit denies credit to aliens for completing prison drug treatment program. (600) Petitioners sought custody credit under 18 U.S.C. § 3621(e)(2)(B) for completing a drug treatment program in prison. The Bureau of Prisons found they were ineligible for a sentence reduction because (1) a BOP regulation conditioned sentence reduction on the completion of a community based treatment program for which they were ineligible because of their immigration status, and (2) a BOP interim rule categorically excluded prisoners with detainers from sentence-reduction eligibility. The Ninth Circuit found that the regulation and the interim rule were properly promulgated pursuant to the statute and did not violate the Equal Protection Clause, even though they operated to the disadvantage of aliens. McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999).
9th Circuit holds defendant released on federal bail was not entitled to custody credit for state arrest. (600) After pleading guilty plea in federal court to selling crack cocaine, defendant was released on his own recognizance pending sentencing. State officials then arrested him and charged him with murder. He was returned to federal court on a writ of habeas corpus ad prosequendum and sentenced to 70 months in federal prison. However, he did not go into federal custody, but was returned to state court where he was convicted of manslaughter and sentenced to 115 months in state prison. He sought to be returned to federal custody so that his two sentences would run concurrently. The Bureau of Prisons refused, but agreed to designate his state prison as the place for service of his federal sentence if the district judge agreed. The district judge refused on the ground that this would render the 70-month federal sentence a nullity, and that permitting defendant to “trade” his concurrent federal sentence for the 115-month state manslaughter sentences “would be unconscionable.” On appeal, the Ninth Circuit affirmed, holding that the federal government relinquished primary jurisdiction when it released defendant on his own recognizance. The later writ of habeas corpus ad prosequendum did not transfer custody to federal court. The district court did not have the power to sentence him to the custody of the Federal Bureau of Prisons as long as the primary custody remained with the state. Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998).
9th Circuit, en banc, says Koon permits downward departure where delay prevented concurrent sentences. (600) Overruling U.S. v. Huss, 7 F.3d 1444 (9th Cir. 1993) and U.S. v. Daggao, 28 F.3d 985 (9th Cir. 1994), the en banc Ninth Circuit upheld the district court’s decision to depart downward based on the fact that the delay in indicting and sentencing defendant caused him to lose the opportunity to serve a greater portion of his state sentence concurrently with his federal sentence. The court said that the absolute bar to downward departure pronounced in Huss and Daggao was no longer appropriate in light of the Supreme Court’s intervening decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). After Koon, courts can no longer categorically forbid departure unless the Commission has expressly forbidden the consideration of that factor as a categorical matter. Judge Trott dissented, joined by Judges Brunetti, O’Scannlain and Kleinfeld. U.S. v. Sanchez-Rodriguez,161 F.3d 556 (9th Cir. 1998) (en banc).
9th Circuit upholds denial of sentence reduction for completing drug treatment program. (600) Under 18 U.S.C. § 3621(e) (2)(B), the Bureau of Prisons may reduce the sentence of a prisoner convicted of a nonviolent offense by up to one year, if the prisoner successfully competes a designated drug treatment program. In this case, although the petitioner had begun a drug treatment program, the Bureau of Prisons notified him that he was not eligible for a sentence reduction because of his prior conviction for armed robbery. After completing the program, the prisoner sought a reduction and appealed to the Ninth Circuit. The Ninth Circuit held that he was not eligible for early release under the plain terms of the statute when he entered the treatment program. The later regulation at 28 C.F.R. § 550.58 merely confirmed the prisoner’s ineligibility. It did not retroactively impair any right or expectation that he might have legitimately held. The court distinguished the decision in Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997) which prohibited the Bureau of Prisons from retroactively imposing new eligibility criteria on prisoners who were convicted of unarmed bank robbery. Furguiel v. Benov, 155 F.3d 1046 (9th Cir. 1998).
9th Circuit holds nunc pro tunc sentence did not violate double jeopardy. (600) Nunc pro tunc signifies “now for then, or in other words, a thing is done now, which shall have the same legal force and effect as if done at the time when it ought to have been done.” Black’s Law Dictionary, 964 (5th Ed. 1979). In the present case, the Bureau of Prisons informed the district court that defendant’s release date for his new sentences ¾ calculated as if he had been originally sentenced to 41 rather than 46 months ¾ was February 15, 1997. At resentencing, defendant was already serving a consecutive 60-month sentence imposed on revocation of probation. Consequently, imposing the sentences nunc pro tunc did not disturb defendant’s “legitimate expectation that his [new] sentence was final.” Accordingly, the Ninth Circuit held that nunc pro tunc sentences did not violate double jeopardy. U.S. v. Allen (98-30002), 153 F.3d 1037 (9th Cir. 1998).
9th Circuit finds Bureau of Prisons properly credited defendant with time served on his first sentence. (600) This habeas petitioner claimed that the district court erred in concluding that he was not entitled to credit on the consecutive sentence he was ordered to serve for a parole violation for the time he spent in custody prior to the remand for resentencing on his most recent conviction. The Ninth Circuit affirmed, concluding that petitioner had not demonstrated that he was entitled to such credit. The time he served in federal prison camp up to the date on which his sentence was vacated, plus the time he served until resentencing, was credited toward his first sentence pursuant to Bureau of Prisons policy. Consequently, he was not entitled to have this time credited toward his second sentence. See 28 U.S.C. § 3585(b) (disallowing double crediting). In addition, because petitioner had been resentenced since the filing of his § 2241 petition, the possibility of his being falsely imprisoned while awaiting resentencing on his first sentence was foreclosed. Allen v. Crabtree, 153 F.3d 1030 (9th Cir. 1998).
9th Circuit denies pre-guidelines prisoner credit for completing drug abuse program. (600) Effective in 1994, 18 U.S.C. § 3621(e)(2)(B) allowed the Bureau of Prisons to reduce the sentences of prisoners convicted of nonviolent offenses who completed a residential substance abuse treatment program. However, in adopting regulations under this statute, the Bureau of Prisons excluded inmates who are eligible for parole, i.e., pre-guidelines prisoners. These prisoners are referred to the Parole Commission to decide whether to advance their parole date based on completion of the substance abuse program. The Ninth Circuit upheld treating pre-guidelines prisoners differently, holding that this was the intention of Congress under the statute. Accordingly, petitioner had no right to custody credit for completing the substance abuse program. Delancy v. Crabtree, 131 F.3d 780 (9th Cir. 1997).
9th Circuit denies reduction for drug program to inmate with prior violent crime conviction. (600) Under 18 U.S.C. § 3621(e) (2)(B), a prisoner who is convicted of a nonviolent offense and completes a required drug treatment program may be eligible for a one-year sentence reduction. However, the Bureau of Prisons adopted a regulation in 28 C.F.R. § 550.58, making inmates ineligible if they have a prior conviction for homicide, forcible rape, robbery or aggravated assault. Four inmates challenged the regulation as being in conflict with the statute. The Ninth Circuit found no conflict, noting that the statute gives the Bureau broad discretion to grant or deny the one-year reduction. Nor did the Bureau’s use of a categorical rule amount to an abdication of its discretion. As stated in Yang v. INS, 70 F.3d 932, 936 (9th Cir.), cert. denied, 117 S.Ct. 83 (1996), “an agency to whom Congress grants discretion may elect between rule making and ad hoc adjudication to carry out its mandate.” Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997).
9th Circuit holds Bureau of Prisons cannot retroactively change eligibility for sentence reductions. (600) The Bureau of Prisons initially determined that prisoners who were convicted of unarmed bank robbery were statutorily eligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B), which authorizes it to grant a sentence reduction of up to one year to prisoners convicted of “nonviolent offenses” who complete a substance abuse treatment program. Before the appellants had completed the treatment program, the Bureau altered its interpretation of “nonviolent offenses” and informed them that they were no longer eligible for a sentence reduction because they had been convicted of a crime of violence. The district court agreed with the Bureau of Prisons, but on appeal, The Ninth Circuit reversed, holding that the Bureau of Prisons could not apply its new interpretation of § 3621(e)(2)(B) retroactively. The Bureau could apply its new interpretation “only to prisoners who had neither entered the substance abuse treatment program nor received favorable eligibility determinations as of the date of its issuance. On remand, the Bureau must treat the appellants as statutorily eligible and decide, within its discretion, whether to grant the reduction. Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997).
9th Circuit holds bureau of Prisons must treat felon firearm possession as a nonviolent offense. (600) The Violent Crime Control and Law Enforcement Act of 1994, amended 18 U.S.C. § 3621(e)(2)(B), to provide that the Bureau of Prisons may grant as much as one year in sentence reduction to prisoners “convicted of a nonviolent offense” who successfully complete drug and alcohol treatment programs. In this case, the Bureau refused to grant petitioner a sentence reduction, because he had been convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and Bureau of Prisons regulations interpreted this crime as a “crime of violence.” On appeal, the Ninth Circuit relied on the decision in Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996), to hold that the Bureau of Prisons could not reasonably interpret “crime of violence” in a way that conflicted with the well-established definition of this term in the Ninth Circuit. “In sum, the [Bureau of Prisons] may not interpret the term ‘nonviolent offense’ to exclude the offense of felon in possession of a firearm.” Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997).
9th Circuit says offense was “non-violent” despite possession of firearm. (600) Under 18 U.S.C. § 3621(e)(2)(B), a prisoner “convicted of a non-violent offense” may have his sentence reduced for participating in a substance abuse treatment program in prison. In this case, defendant completed the program but was denied a reduction, because his sentence had been enhanced under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon in a drug offense. The Ninth Circuit held that defendant was entitled to the credit because the enhancement was not a “conviction.” Under U.S. v. Cantu, 12 F.3d 1506, 1513 (1993) mere possession of a firearm by a felon is not a crime of violence for purposes of eligibility for a downward departure under § 5K2.13. Moreover, the Commission itself stated in § 4B1.2, application note 2, that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon. Finally, in Taylor v. U.S., 495 U.S. 575 (1990), the Supreme Court required the trial court to look only to the fact of conviction and the statutory definition of the prior offense in deciding whether a prior burglary constituted a “conviction of a violent felony.” Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996).
9th Circuit denies credit for time spent in state custody. (600) While defendant was serving his state court sentence, he was brought to federal court on a writ of habeas corpus ad prosequendum, where his federal probation was revoked and he was committed to the custody of the Attorney General. Instead of keeping him in federal custody however, the marshal returned defendant to state custody to complete his state sentence. On completion of his state sentence, defendant argued that he should be given credit for time served in state prison because the marshal should have retained him in federal custody rather than returning him to the state. Judges Canby, Sneed and Fernandez rejected the argument, holding that the marshal properly returned defendant to state custody because the district court’s order did not require immediate federal commitment. Therefore defendant was not entitled to credit toward his federal sentence. Clark v. Floyd, 80 F.3d 371 (9th Cir. 1996).
9th Circuit gives defendant custody credit for time he spent while erroneously released. (600) Defendant was convicted of federal drug offenses and released on bond pending appeal. While on bond, he was arrested in Montana on state charges of manufacturing methamphetamine and was convicted and sentenced to forty years in state prison. When he was released on parole six years later, state authorities failed to inform the U.S. marshal of his release and it was three years before the marshals took him into federal custody to begin serving his federal sentence. The Ninth Circuit held that defendant was entitled to credit toward his federal sentence from the date he was erroneously released from the Montana prison until the date he was actually taken into federal custody. The majority relied on Smith v. Swope, 91 F.2d 260 (9th Cir. 1937) which held that a defendant is entitled to credit because otherwise, “a prisoner sentenced for one year might thus be required to wait forty under the shadow of his unserved sentence before it pleases the marshal to incarcerate him.” Judge Fernandez dissented, arguing that the marshal was not negligent and defendant was not confused about whether he should have been serving his federal sentence. Clark v. Floyd, 80 F.3d 371 (9th Cir. 1996).
9th Circuit overrules cases allowing credit for time spent in community treatment center. (600) Under 18 U.S.C. § 3568 (repealed 1987) and its successor, 18 U.S.C. § 3585, a defendant is entitled to credit for time spent in custody before he is sentenced. Prior Ninth Circuit cases held that this includes time spent in a community treatment center as a condition of pretrial release or probation. Mills v. Taylor, 967 F.2d 1397 (9th Cir. 1992); Grady v. Crabtree, 958 F.2d874 (9th Cir. 1992); Brown v. Rison, 895 F.2d 533 (9th Cir. 1990). Thereafter however, in Reno v. Koray, 515 U.S. 50 (1995) the Supreme Court held that time spent by a federal prisoner in a community treatment center as a condition of pretrial release does not constitute time spent in “official detention” within the meaning of 18 U.S.C. § 3585(b). Although the present case involved the predecessor statute, the Ninth Circuit found no meaningful distinction between the two statutes, and also held that the reasoning in Koray “applies equally well to conditions of probation and conditions of pre-trial release. Accordingly, Mills, Grady and Brown are no longer good law. Tanner v. Sivley, 76 F.3d 302 (9th Cir. 1996).
9th Circuit gives no credit for time served on federal writ which had already been credited toward state sentence. (600) The Ninth Circuit rejected defendant’s argument that the 476 days he spent in custody pursuant to a federal writ should have been credited toward his federal sentence. That time was credited toward his state sentence. Because the federal sentence was ordered to run consecutively to the state sentence, the 476 days had in fact already been created toward defendant’s total time of incarceration. U.S. v. VonWillie, 59 F.3d 922 (9th Cir. 1995).
9th Circuit says 5G1.3 permits sentence below mandatory minimum for Armed Career Criminal. (600) Defendant was convicted in state court of armed robbery with a handgun. Thereafter, he was convicted in federal court of being a felon in possession of a firearm (the handgun), and was found to be an armed career criminal under 18 U.S.C. § 924(e), which carries a 180-month mandatory minimum sentence. His guideline sentence of 188 months included four levels for using the firearm in the state robbery. Defendant sought to have his sentence reduced for the 12 months he had already served on the state robbery, citing USSG 5G1.3(b), which requires such a reduction where “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense.” The Ninth Circuit rejected the district court’s conclusion that any credit was up to the Bureau of Prisons, holding that the sentence reduction was appropriate, even though this meant that defendant’s actual sentence would fall below the statutory mandatory minimum. U.S. v. Drake, 49 F.3d 1438 (9th Cir. 1995).
9th Circuit denies downward departure for pretrial detention in parent’s house. (600) As a condition of pretrial release, defendant was required to stay in his parent’s house except Monday through Friday from 8 AM to 5 PM when he could attend a local community college. At sentencing, defendant sought a downward departure for the approximately 8 months he was detained in-house. The district court found no authority to depart on this basis, and on appeal, the 9th Circuit affirmed. Under U.S. v. Wilson, 503 U.S. 329 (1992), the court may not give credit for time served, as this is solely up to the Bureau of Prisons. It follows therefore that the district court may not depart downward on this basis. The court said it was bound by its decision in U.S. v. Huss, 7 F.3d 1444, 1448-49 (9th Cir. 1993) which found no authority to depart downward for time spent in state custody. The court also noted that in Fraley v. U.S. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993) the court upheld the Bureau of Prison’s denial of credit for time spent under house arrest before trial. Judge Reinhardt dissented. U.S. v. Daggao, 28 F.3d 985 (9th Cir. 1994), overruled on other grounds by U.S. v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998).
9th Circuit finds no equal protection violation in denying custody credit for pretrial home detention. (600) Defendant argued that denying credit for pretrial home detention with electronic monitoring would deny her equal protection of the laws, because people with minimum sentences of not more than six months may serve their term of imprisonment in home confinement. Defendant argued that if they “receive credit” for one day of sentence by serving one day of house arrest, then so should she. Agreeing with the 2nd and 10th Circuits, the 9th Circuit found no equal protection violation, because “presentence residents are not being punished; they are conditionally released to the halfway house to protect the community and assure their presence at trial and sentencing.” Defendant was therefore not similarly situated to post-sentenced prisoners, and denying her credit for her seven-month house arrest did not violate equal protection. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993).
9th Circuit says time spent in home confinement before sentencing does not qualify for custody credit. (600) Agreeing with every circuit that has addressed the question, the 9th Circuit held that home confinement combined with electronic monitoring does not constitute “official detention” under 18 U.S.C. section 3585(b). Fraley v. U.S. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993).
9th Circuit finds Bureau of Prisons controls calculation of credits for transferred prisoner. (600) Defendant was a prisoner who transferred from the United Kingdom to serve her foreign sentence pursuant to 18 U.S.C. §4100 et seq. After the Parole Commission acted pursuant to 18 U.S.C. §4106A and set a release date, defendant appealed, arguing that the Parole Commission failed to account for good time credit earned while she was incarcerated in England and which may be earned in the United States. The Ninth Circuit found it had no jurisdiction to consider the appeal because the Bureau of Prisons is responsible for making the good time credit for U.S. prisoners in the first instance. The general import of §4105 is that transferring prisoners should be treated similarly to U.S. prisoners. In so holding, the Ninth Circuit joined the Tenth Circuit in Trevino-Casares v. U.S. Parole Commission, 992 F.2d 1068 (10th Cir. 1993) and disagreed with the Fifth Circuit in Cannon v. U.S. Department of Justice, 973 F.2d 1190 (5th Cir. 1992), cert denied 508 U.S. 915 (1993) which held the Parole Commission is obliged to consider earned foreign credit in making its release determination. Ajala v. U.S. Parole Commission, 997 F.2d 651 (9th Cir. 1993).
9th Circuit rejects custody credit for time spent on bail under residence restriction. (600) Defendant asked the warden to credit him with time he had spent on pretrial release on bail. After exhausting his administrative remedies he filed a habeas petition. On appeal, the 9th Circuit held that the time he spent on bail did not constitute time “spent in official detention” within the meaning of 18 U.S.C. section 3585(b). The bail conditions restricted him from traveling outside of the Eastern and Northern Districts of California and required him to be at his brothers or his own house from 10:00 p.m. to 6:00 a.m. and not to be absent from the designated residence for over 24 hours. The 9th Circuit noted that time on probation does not qualify for credit, and the conditions of the bond in this case did not even approach imprisonment. Lahey v. Floyd, 992 F.2d 234 (9th Cir. 1993).
9th Circuit authorizes 1-to-1 departure for time served on home detention. (600) At the original sentencing the district court departed downward to probation with 6 months home detention. The government appealed, and on remand, the court imposed the same sentence, giving as one of the reasons, that it would be “a travesty of justice” to put the defendant in prison after she had completed 6 months of home detention. The 9th Circuit agreed that this was a proper basis for departure, but remanded for an explanation of the extent of departure. The court noted that departing from defendant’s guideline sentence by exactly six months “would leave her with a lighter punishment than congress authorized, though not unacceptably lighter.” (Emphasis added). When home detention is an appropriate punishment . . . the Guidelines approve of crediting home detention time for prison time on a one-for-one basis.” See U.S.S.G. section 5C1.1(e)(3). Thus, on remanded, the district court “may depart downward by up to six months to take into account her home detention.” U.S. v. Miller, 991 F.2d 552 (9th Cir. 1993).
9th Circuit warns that state judge cannot require state sentence to be concurrent with federal. (600) While awaiting a self-surrender to serve a 5-year federal prison term, defendant was arrested and charged by state authorities. His plea agreement in state court provided that he would receive a term concurrent with his federal sentence. However, after the state sentenced him to a 7-year concurrent prison term, the federal authorities declined to accept him into federal prison until he completed his state sentence. He served the state sentence, and when he was accepted into federal custody, he was denied credit for the 3 years and 7 months he had served in state custody. Under 18 U.S.C. section 3568, in effect at the time of sentencing, the court had no authority to credit defendant with the time spent in state prison. The state judge had no authority to commit defendant to state prison to await transportation to the federal prison. As a result, defendant’s federal sentence did not begin until he was received at the federal prison. A concurring opinion cautioned lawyers and state sentencing judges to avoid the unjust result required in this case. Del Guzzi v. U.S., 980 F.2d 1269 (9th Cir. 1992).
9th Circuit reaffirms that district court cannot grant credit for time spent in custody. (600) Pursuant to 18 U.S.C.. section 3585(b), defendant requested credit for 88 days he spent under house arrest in Italy. The district court denied the request. On appeal, the 9th Circuit noted that under U.S. v. Wilson 503 U.S. 329 (1992), district courts no longer have jurisdiction to grant credit for time spent in custody. The Attorney General now has the power to grant credit. Defendants must exhaust their administrative remedies in seeking credit for time in custody The district court’s denial of the defendant’s request for credit was affirmed. U.S. v. Checchini, 967 F.2d 348 (9th Cir. 1992).
9th Circuit holds that District of Columbia statute did not impliedly repeal good time forfeiture statute. (600) Petitioner argued that the Good Time Credits Act of 1986, now codified at D.C. Code Ann. sections 24-428 through 434 impliedly repealed an older D.C. statute, D.C. Code § 24-206(a) which required forfeiture of street time credit on revocation of parole. The 9th Circuit disagreed, holding that repeals by implication are not favored, and the older section could be read as a still valid exception to the general rule in the new statute requiring crediting time on parole against prisoner’s sentences. Tyler v. U.S., 929 F.2d 451 (9th Cir. 1991).
9th Circuit finds no right to credit for time served in state prison on state charges. (600) Petitioner argued that the federal detainer prevented him from making bail on his state charges. The 9th Circuit held that he was entitled to credit for the time he otherwise would have been out on bail if (1) the federal detainer had been “the sole reason for the denial of bail,” and (2) the state failed to credit his state sentence for that time. Here the defendant was already serving his state sentence by the time the detainer was lodged. Therefore even if he was denied bail, the federal detainer could not have been the sole reason for that denial. Moreover, there is no statutory provision that accords a prisoner credit against a federal sentence for time served in a state prison on a state charge. Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991).
9th Circuit finds no basis for granting credit for pretrial “probation.” (600) Defendant argued that he should be given credit for “probation” served during pretrial release and during release pending appeal. The 9th Circuit found “no basis in law or in fact” for this argument. 18 U.S.C. § 3568 grants credit for time served in pretrial custody, but there is no authority for granting credit for time served on pretrial probation. Moreover federal case law “overwhelmingly rejects the notion of credit for release on bond pending trial or appeal.” A defendant released on bond pending appeal is not entitled to credit for time served in “custody” within the meaning of 18 U.S.C. § 3568. Finally, defendant failed to present any evidence that he was in fact “on probation” during this period. U.S. v. Freeman, 922 F.2d 1393 (9th Cir. 1991).
9th Circuit holds that issuance of parole violator warrant tolls the running of federal sentence. (600) While defendant was on parole Washington officials arrested him for violating the laws of that state. As a result, a federal parole violator warrant was issued and lodged as a detainer. After serving his state sentence he was released to federal authorities and the federal warrant was executed. Petitioner argued that his federal sentence expired while he was serving his state sentence in Washington. The 9th Circuit rejected the argument holding that “the issuance of the parole violator warrant tolled the running of his federal sentence.” See 28 C.F.R. § 2.44(d). Anderson v. U.S., 898 F.2d 751 (9th Cir. 1990).
9th Circuit holds that “good conduct” provisions of Sentencing Reform Act apply even though the offense was committed during the period when the Ninth Circuit held the guidelines unconstitutional. (600) Prior to November 1, 1987, federal law provided for a system of meritorious and work-related good time credits, see 18 U.S.C. sections 4162 and 4163. The Sentencing Reform Act repealed those provisions and reduced the number of good time credits available, see 18 U.S.C. § 3624(b), Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). The defendant argued that the new good time provisions should not apply to him because he pled guilty after the Ninth Circuit held the Sentencing Reform Act unconstitutional in Gubiensio. Reiterating the decision in U.S. v. Kane, 876 F.2d 734, 736 (9th Cir. 1989), the 9th Circuit held that the Supreme Court’s Mistretta decision, which overruled Gubiensio, was retroactive. Accordingly, the “good time” credits enacted as part of the Sentencing Reform Act were effective November 1, 1987, and applied to the defendant. U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).
9th Circuit holds that prisoner is entitled to credit for time spent in community treatment center. (600) Petitioner argued that under 18 U.S.C. § 3568, he was entitled to receive credit against his sentence for time spent in a community treatment center. The 9th Circuit agreed, ruling that it was not reasonable for the Bureau of Prisons to rule that petitioner’s 306 days of enforced and supervised residence were not “days spent in custody in connection with the offense or acts for which sentence was imposed.” Judges Wallace dissented, noting that petitioner’s residence at the center, “while imposing significant restrictions,” was a condition of his bail, and imposed “substantially less” restraint than jail. Brown v. Rison, 895 F.2d 533 (9th Cir. 1990).
9th Circuit rules good time credits earned earlier may not be credited to parole violator’s new term. (600) Petitioner argued that when he violated his parole and was returned to prison he was entitled to have all previously-earned good-time credits applied to his sentence. The 9th Circuit rejected the argument, holding that “good time credits no longer exist after parole or mandatory release.” “Upon being resentenced as a parole violator, an inmate begins a new term upon which he is entitled to credit for only such good time as he earns during the period of his incarceration as a parole violator.” Boniface v. Carlson, 881 F.2d 669 (9th Cir. 1989).
9th Circuit holds a claim for credit for time served cannot be raised in a 2255 motion. (600) The Ninth Circuit held that a claim under 18 U.S.C. § 3568 for credit against a federal sentence for time spent in state custody prior to sentencing cannot be raised under 28 U.S.C. § 2255. Such a claim challenges the Attorney General’s execution of sentence rather than the district court’s imposition. A § 2255 petition can test only the propriety of the sentence imposed, not the manner of execution. Accordingly, the court declined to consider the contention. U.S. v. Espinoza, 866 F.2d 1067 (9th Cir. 1989).
9th Circuit holds that state prisoner in custody solely because of federal detainer may be entitled to credit against his federal sentence. (600) A prisoner in state custody who cannot secure his release on bail because of a federal detainer is entitled to credit against his federal sentence for the time he would otherwise be out free on bail. To secure this credit, however, the prisoner must establish not only that the federal detainer was the sole reason for the denial of bail, but also that the state did not credit his state sentence for that time. Since Florida gave the prisoner credit on his state sentence for the time he was denied release on bail, he was not entitled to that credit here. Boniface v. Carlson, 856 F.2d 1434 (9th Cir. 1988).
9th Circuit holds that petitioner’s inability to post state bail and thereby to be transferred to federal custody did not violate equal protection. (600) Petitioner pointed out that if he had been financially able to post bail on the state charges, he would have been transferred to federal custody where he would have obtained the benefit of serving concurrent federal and state time. He argued that this violated equal protection, citing a Second Circuit Case. The 9th Circuit rejected the argument, noting that the Second Circuit case has only been applied where there is a potential for “dead time”, i.e., where the prisoner would get no credit in either jurisdiction. Smith v. U.S. Parole Commission, 850 F.2d 500 (9th Cir. 1988).
9th Circuit holds that federal parole violator was not entitled to credit for time in state custody despite state court’s “concurrent” sentence. (600) The state court ordered petitioner’s state sentence to run concurrently with any federal sentence. However, the federal Parole Board declined to take custody of him on its parole violation warrant until the state relinquished complete jurisdiction of him. Since the federal government has no duty to take anyone into custody, the 9th Circuit held that petitioner was not entitled to credit on his federal sentence for time served in state custody. Smith v. U.S. Parole Commission, 850 F.2d 500 (9th Cir. 1988).
9th Circuit holds that “good time” credits reduce only the period of incarceration, not the sentence itself. (600) In revoking parole, the Commission ordered the forfeiture of appellant’s good time credits. The Court of Appeals held this was proper, but noted that since appellant had already received the benefit of the good time credits by being released on early parole, those credits have “no effect today” on whether his time on parole should be shortened. They “cannot now reduce the time remaining on his federal sentence to be served in parole status.” Raines v. U.S. Parole Commission, 829 F.2d 840 (9th Cir. 1987).
9th Circuit upholds no credit for time in state custody even after appellant received federal parole. (600) The district judge ordered appellant’s state and federal sentences to be served concurrently. While still serving his state sentence, he received federal parole, but remained in custody on the state charge for another year before release on state parole. When his parole was later revoked, he argued that the one year period was time in “federal custody” for which he deserved credit. Despite this argument’s “intuitive appeal”, it was rejected on the ground that no statutory provision accords a prisoner credit against a federal sentence for time served on a state charge. Raines v. U.S. Parole Commission, 829 F.2d 840 (9th Cir. 1987).
9th Circuit holds that federal prisoner was not entitled to credit for time served in state prison on concurrent sentence. (600) After his federal conviction, defendant was transferred to state court and sentenced to state prison. The state court ordered his state sentence to be served concurrently with his federal sentence. However, the state prison authorities failed to transfer him to federal custody in order to accomplish this. The prisoner argued that the time spent in state prison should be credited against his federal sentence. On rehearing, the 9th Circuit held that “this court lacks jurisdiction to grant such relief.” Shabazz v. Carroll, 814 F.2d 1321 (9th Cir. 1987), amended 833 F.2d 149 (9th Cir. 1987).
9th Circuit holds that upon revocation of probation, it is the Attorney General, not the court, who gives credit for time served. (600) Defendant was originally sentenced to five years, with execution suspended for all but six months. When his probation was later revoked, he argued that the judge could only sentence him to 4-1/2 years, since he had already served six months. The 9th Circuit rejected the argument, noting that it is the responsibility of the Attorney General, the Department of Justice and the Bureau of Prisons, not the courts, to compute sentences and give credit for time served. U.S. v. Berry, 814 F.2d 1406 (9th Cir. 1987).
9th Circuit finds credit for time served in state custody. (600) Under Parole Commission regulations, time in state custody is applied for “purposes of satisfaction of the reparole guidelines”, but this does not affect the “computation of the expiration date of the violator term.” Thus petitioner was eligible for parole in much less time than the guidelines indicated. Bowen v. U.S. Parole Commission, 805 F.2d 885 (9th Cir. 1986).
9th Circuit holds that notice to parole violator that he might not be given credit for “street time” was sufficient for due process. (600) Relying on Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir. 1984), the parolee argued that the parole commission failed to give him adequate notice that he might not be given credit for the time while he was on parole, if his parole was revoked. Judges Farris, Beezer, and Brunetti rejected the argument, ruling that the parolee was notified in writing that “[i]f revocation is ordered, the Commission will also determine whether to reparole you or to require service of all or part of your violator term.” This was sufficient to satisfy due process. Bowen v. U.S. Parole Commission, 805 F.2d 885 (9th Cir. 1986).
9th Circuit holds petitioner not entitled to credit for time served in state custody. (600) The fact that the parole commission revoked defendant’s federal parole while he was serving a state sentence does not entitled him to credit on his federal sentence. The parole revocation operated only as a detainer, and he did not begin his federal sentence until he was released from confinement by the State. Berg v. U.S. Parole Commission, 735 F.2d 378 (9th Cir. 1984).
9th Circuit holds petitioner not entitled to credit for time served in state custody. (600) The fact that the Parole Commission revoked defendant’s federal parole while he was serving a state sentence does not entitle him to credit on his federal sentence. The parole revocation operated only as a detainer, and he did not begin his federal sentence until he was released from confinement by the State. Berg v. U.S. Parole Commission, 735 F.2d 378 (9th Cir. 1984).
10th Circuit holds that defendant was entitled to credit for time spent in state custody. (600) 18 U.S.C. § 3585(b)(2) requires a defendant to be given credit for time spent in custody “as a result of any other charge for which defendant was arrested after the commission of the offense for which the sentence was imposed, that has not been credited against another sentence.” Here the defendant was arrested on state charges after the commission of his federal offense, and the state charges were later dismissed. Thus he was entitled to credit for the time he spent in state custody. The case was remanded to determine when he was arrested by the state and to credit his federal sentence for the time spent in state custody. U.S. v. Richardson, 901 F.2d 867 (10th Cir. 1990).
11th Circuit holds that home confinement does not constitute official detention. (600) For 487 days before trial defendant was conditionally released to home confinement, where he was forced to obey in-home curfew from 8:00 p.m. to 6:00 a.m. The Eleventh Circuit held his home confinement was not a form of “official detention” under 18 U.S.C. § 3585(b). The Supreme Court’s recent decision in Reno v. Koray, 515 U.S. 50 (1995) held that confinement in a community treatment center pending sentencing, under conditions much more restrictive than those imposed here, did not constitute official detention. The denial of sentencing credit did not violate equal protection, even though persons who serve home confinement under § 5C1.1 do receive such credit. The two sets of defendants are not similarly situated. Individuals who serve home confinement under § 5C1.1 have been convicted, sentenced, and placed in the custody of the Bureau of Prisons prior to home confinement. Defendant was not in the custody of the BOP during the period of his home confinement. Rodriguez v. Lamer, 60 F.3d 745 (11th Cir. 1995).
11th Circuit denies credit for time in halfway house as condition of release before and after sentencing. (600) After his arrest on drug charges, defendant was released on bond to the custody of a halfway house. While there, he was subject to the same conditions as other residents, including convicts serving their sentences. After pleading guilty, defendant was transferred to a “safe house,” until he was required to surrender into custody. The Eleventh Circuit held that defendant was not entitled to sentence credit for the time he spent in the halfway house and the safe house. The Bureau of Prisons, which administers sentence credits, has reasonably determined that release on bond, despite conditions, is not creditable toward a sentence. Since defendant was on release when he was in the halfway and safe houses, he was not entitled to credit. This did not violate equal protection even though convicts serving their sentences at the halfway house received such credit. Dawson v. Scott, 50 F.3d 884 (11th Cir. 1995).
California District court says 2255 motion cannot be used to challenge credit for time served. (600) Defendant complained that the Bureau of Prisons shorted him approximately a month of credit for time served. The district court for the Eastern District of California ruled that this was not a proper claim under 28 U.S.C. § 2255 because it challenged the Attorney General’s execution of the sentence and not the district court’s imposition of sentence. The court relied on U.S. v. Espinoza, 866 F.2d 1067, 1070-71 (9th Cir. 1988), which rejected a “credit for time served” claim brought under § 2255. U.S. v. Aespuro, 938 F.Supp. 623 (ED CA 1996).
District Court holds California murderer has equal protection right to same custody credits as other prisoners. (600) In 1987, the California Attorney General issued an advisory opinion ruling that state prisoners convicted under California Penal Code section 190 (murder) were ineligible for custody credits that were available to other state prisoners. This ruling was upheld by the California courts. In re Monigold, 205 Cal.App.3d 1224 (1988); In re Oluwa, 207 Cal.App.3d 439, 446-47 (1989). District Judge Thelton Henderson held that this violated the Equal Protection Clause. Noting that habitual offenders who had committed murder were eligible for the custody credits, the court ruled that “allowing the hardened first degree murderer to earn . . . credits while denying them to his callow counterpart, is irrational.” The court granted the writ of habeas corpus, and directed the state to credit the petitioner with appropriate worktime credits. Brodheim v. Rowland, 783 F.Supp. 1245 (N.D. Cal. 1991), affirmed in part, vacated in part, 993 F.2d 716 (9th Cir. 1993).
California District Court denies custody credit for time spent in pretrial home confinement. (600) As a condition of his bond, defendant was “confined to his residence, except for court appearances, visits to his lawyer to assist in his defense, or such other absences as might be approved at least 24 hours in advance by Pretrial Services.” To assure his compliance, defendant was required to wear an ankle bracelet which was electronically connected to a privately operated monitoring center. Defendant argued that the conditions of his release on bond were tantamount to incarceration, entitling him to 34 days credit for time served, under 18 U.S.C. § 3568. District Judge Wilson rejected the argument. The court distinguished Brown v. Rison, 895 F.2d 533 (9th Cir. 1990) which held that a petitioner who was required to spend each evening and night in a community treatment center was entitled to credit for time served in custody. U.S. v. Browning, 761 F.Supp. 681 (C.D. Cal. 1991).
Kansas District Court holds it need not give credit for time served upon revocation of supervised release. (600) In a case involving the revocation of a term of supervised release, the Kansas District Court concluded that the determination of whether to give a defendant credit for time already served under the primary term of incarceration was a matter within the discretion of the district court. However, the total length of imprisonment imposed for the primary offense and supervised release violation is subject to the absolute limits set forth in 18 U.S.C. § 3583(e)(3). U.S. v. Medrano-Gonzalez, 751 F.Supp. 931 (D. Kansas. 1990).
Article tells defense lawyers how to secure a favorable federal prison for the defendant. (600) Defense attorneys Alan Ellis and Samuel Shummon, co-authors of the Federal Prison Guidebook, explain the policies of the Federal Bureau of Prisons for designating and placing prisoners after conviction. They describe the process of “scoring” the defendant to determine the appropriate security level, and emphasize the advantages of voluntary self-surrender to the designated institution. Inmates who are found to have “public safety factors” (PSF) will be designated to more secure institutions. The authors also emphasize the importance of ensuring that inaccurate information in the presentence report is corrected because “virtually all correctional designations and other correctional decisions” are based on it. The authors suggest it is not a good idea to downplay a defendant’s substance abuse problems because statutory law now provides for reduction of a sentence up to one year for a non-violent inmate who has successfully completed a residential drug treatment program in a BOP facility. 18 U.S.C. § 3621(e)(2). The inmate, however, will generally not qualify for the program unless the presentence report documents a history of substance or alcohol dependency or abuse. Alan Ellis, Samuel A. Shummon, and Sharon Han, Federal Prison Designation and Placement: An Update, A.B.A. Criminal Justice (Summer 2000) 46-50.
No automatic “good time” for violent prisoners. (600) Under 18 U.S.C. § 3624, federal prisoners automatically earn 54 days of good time per year, unless the Bureau of Prisons determines otherwise. The Violent Crime Control Act of 1994, in § 20404, amends § 3624 to provide that a prisoner convicted of a crime of violence can receive good time credits only if the Bureau of Prisons affirmatively finds that “the prisoner has displayed exemplary compliance with such institutionary disciplinary regulations.”