Opinion
05 CR 432 (NRB).
December 27, 2006
MEMORANDUM AND ORDER
The defendant has filed a motion to return him to "the custody of the United States Federal Bureau of Prisons." The procedural history relevant to this motion follows. Almonte-Batista was sentenced to 43 months in custody on April 26, 2006 following his plea of guilty to the crime of illegal re-entry. Sometime thereafter, the defendant was returned to state custody, his place of primary jurisdiction, where he was sentenced by Justice Brenda Soloff to a sentence of 3 years to 6 years on a drug offense. Justice Soloff directed that his state sentence should run concurrently with his federal sentence and recommended that his time "be served in federal custody as much as possible." See Uniform Sentence Commitment, dated July 10, 2006, and annexed as Ex. A to defendant's motion. Defendant has apparently remained in state custody following his sentence by Judge Soloff and by this motion seeks to be returned to federal custody.
As noted earlier, Almonte-Batista was writted into this jurisdiction for the purpose of prosecution; primary jurisdiction lies with the state court. Moreover, even if the federal system was Almonte-Batista's primary custodian, the Second Circuit has made it clear that once sentence has been imposed, it "falls to the BOP to determine a defendant's place of confinement. See 18 U.S.C. § 3621(b)." United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997).
Accordingly, Almonte-Batista's motion to forthwith return him into the custody of the United States Bureau of Prisons is denied.