Opinion
99 CR 1142 (SAS).
March 13, 2007
Defendant (Pro Se)., Yonny Mercedes Federal Correctional Institution Elkton, Lisbon, Ohio.
For the Government:, Michael M. Rosensaft Assistant United States Attorney New York, New York.
MEMORANDUM OPINION AND ORDER
Defendant Yonny Mercedes, proceeding pro se, has moved for clarification of his sentence pursuant to Federal Rule of Criminal Procedure 36 ("Rule 36"). The Government responded to and opposed defendant's motion. Mercedes then filed a reply to the Government's opposition. At the request of the Court, the Government submitted a supplemental response which included the Sentencing Monitoring Computation Data calculated by the Bureau of Prisons ("BOP").
See Motion to Clarify Sentence Pursuant to Rule 36, Fed.R.Crim.P., dated August 26, 2006 ("Def. Mot.").
See 12/20/06 Letter from AUSA Michael M. Rosensaft ("Gov't Opp.").
See Defendant's Reply to Government's Opposition to His Motion to Clarify Sentence, dated January 3, 2007 ("Reply").
See 2/28/07 Letter from AUSA Michael M. Rosensaft ("Gov't Supp.").
In sum, defendant asks that the sentence imposed by this Court on January 23, 2001 be reduced by twenty-one months, to take into account the time he previously spent in state custody on related charges. Defendant's request is two-pronged: (1) first, he asks that this Court order the BOP to recompute his sentence and credits; and (2) alternatively, he asks this Court to re-sentence him in accordance with United States Sentencing Guideline ("U.S.S.G.") § 5G1.3(b). For the following reasons, defendant's motion is denied.
See Def. Mot. at 3.
See id. at 3-4.
I. BACKGROUND
On January 23, 2001, defendant was sentenced to 121 months for conspiracy to distribute crack cocaine. Defendant was arrested for this offense in April 1999, by both federal and state law enforcement authorities. However, as I explained at his sentencing, defendant had previously been arrested on unrelated state charges:
See Judgment in a Criminal Case ("J C"), Ex. 2 to Gov't Opp.
See 1/23/01 Sentencing Transcript ("Tr.") at 6.
Mr. Mercedes has a previous conviction for the criminal possession of a controlled substance in the third degree. He was arrested on this charge in December 1998, but was not sentenced until 1999 when he was sentenced to one to three years in prison. The sentence took place in August '99, which was after he had been arrested in this case, which was April 1999. . . . [H]e was arrested in April 1999 on this offense, but at that time he was charged in both state and Federal Court. The state court sentenced him to three years to life on the second charge, which I assume is running concurrently with the first sentence.
Id. at 5-6. This sequence of events comports with defendant's understanding. See Def. Mot. at 2 ("Sometime in December of 1998, the defendant was arrested by the New York State law enforcement authorities on drug related charges. He was again arrested on April 28, 1999, by New York authorities and this time along with the federal authorities as well. . . . On August 11, 1999, the state sentenced him to 1-to-3 years imprisonment culminating from charge one, and 3-to-life imprisonment on the second charge, both running concurrently with each other.").
On January 23, 2001, this Court sentenced defendant on the federal charge to run concurrently with the undischarged portion of his state sentence pursuant to U.S.S.G. § 5G1.3(b).
See Def. Mot. at 12. See also J C at 2 ("The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total of 121 months, to run concurrently with any undischarged state sentence.").
Defendant was brought into federal custody from state custody for the above proceedings through a writ of habeas corpus ad prosequendum on or about August 8, 2000. On April 24, 2002, defendant's state sentence ended, at which point defendant was paroled from state to federal custody. As calculated by the BOP, defendant's federal sentence began on January 23, 2001. Defendant's projected statutory release date, taking into account total good time credit earned and projected, is November 28, 2009. The full term expiration date for defendant's sentence is February 22, 2011.
See Gov't Supp. at 1.
See id. at 2.
See Sentencing Monitoring Computation Data, Ex. B to Gov't Supp., at 2.
See id.
See id.
II. DISCUSSION
"A defendant convicted of a federal crime has a right under 18 U.S.C. § 3585(b) to receive credit for certain time spent in official detention before his sentence begins." According to the Supreme Court, however, it is the Attorney General, through the BOP, who computes the amount of credit a defendant receives after the is sentenced, Moreover, "§ 3585(b) does not authorize a district court to compute the credit at sentencing."
United States v. Wilson, 503 U.S. 329, 330 (1992). Title 18 U.S.C. § 3585(b) provides:
(b) Credit for prior custody. — 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 —
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for winch the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
See Wilson, 503 U.S. at 333.
Id. at 334. See also United States v. Barrera-Saucedo, 385 F.3d 533, 536 (5th Cir. 2004) ("There is no statutory authority for district courts to award credit against federal sentences for time spent in state custody.").
As noted by the Government, `when a defendant is `borrowed' under a writ of habeas corpus ad prosequendum, he is not entitled to receive credit under 18 U.S.C. [3585] `in connection with the [federal] offense' because he is technically serving time on his state sentence while in federal custody." Because Mercedes received credit for his state sentence while he was physically in federal custody, he is not entitled to any credit under section 3585. In any event, this Court cannot order the BOP to provide credit against a federal sentence based on prior state incarceration.
Gov't Supp. at 1-2 (quoting Vignera v. Attorney General of the United States, 455 F.2d 637, 638 (5th Cir. 1972) (quotation marks and citation omitted, alteration in original)).
See United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (holding that a district court lacks authority under section 3585(b) to credit a defendant's federal sentence for time that has already been credited toward a state sentence).
See United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997) ("After a defendant is sentenced, it falls to BOP, not the district judge, to determine when a sentence is deemed to `commence,' see 18 U.S.C. § 3585(a); whether the defendant should receive credit for time spent in custody before the sentence `commenced,' see id. § 3585(b); and whether the defendant should be awarded credit for `good time,' see id. § 3624(b).").
Finally, if a defendant disputes the BOP's determination of credit, he may seek judicial review of the decision by filing a habeas corpus petition under 28 U.S.C. § 2241, after exhausting all administrative remedies. However, that petition must be filed in the district where the defendant is incarcerated. Because Mercedes is incarcerated in Ohio, this Court has no jurisdiction over any section 2241 petition he may bring in the future.
See Rosario v. United States, No. 02 Civ. 3360, 2004 WL 439386, at *4 (S.D.N.Y. Mar. 9, 2004).
See United States v. Mares, 868 F.2d 151, 151-52 (5th Cir. 1989).
B. U.S.S.G. § 5G1.3(b)
Section 5G1.3(b) of the Sentencing Guidelines states that if "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 sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment." Moreover, Application Note 2 provides for an adjustment to the federal sentence where the BOP will not otherwise credit the defendant with the time served on an undischarged state sentence.
See United States v. Rivers, 329 F.3d 119, 121 n. 1 (2d Cir. 2003).
Application Note 2 provides the following example of such an adjustment:
The defendant is convicted of a federal offense charging the sale of 30 grams of cocaine. Under § 1B1.3 (Relevant Conduct), the defendant is held accountable for the sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state offense and has served six months on that sentence at the time of sentencing on the instant federal offense. The guideline range applicable to the defendant is 10-16 months (Chapter Two offense level of 14 for sale of 45 grams of cocaine; 2-level reduction for acceptance of responsibility; final offense level of 12; Criminal History Category I). The court determines that a sentence of 13 months provides the appropriate total punishment. Because the defendant has already served six months on the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run concurrently with the three months remaining on the defendant's state sentence, achieves this result. For clarity, the court should note on the Judgment in a Criminal Case Order that the sentence imposed is not a departure from the guideline range because the defendant has been credited for guideline purposes under § 5G1.3(b) with six months served in state custody that will not be credited to the federal sentence under 18 U.S.C. § 3585(b).
U.S.S.G. § 5G1.3(b), Application Note 2, United States Sentencing Commission Guidelines Manual (2001).
Thus, the adjustment under section 5G1.3(b) is not a departure from the Guidelines range, nor is it a credit in the technical sense although "the effect of an adjustment is similar to that of a credit."
Under § 5G1.3(b), if convictions arise from the same course of conduct, district courts may reduce the later sentence to account for the amount of time already served, on the prior, undischarged sentence, thus enabling the sentences to run concurrently and terminate at the same time. The purpose of § 5G1.3(b) is to ensure that petitioner is properly credited for the time served for the related crime.
Rivers, 329 F.3d at 122.
Rosario, 2004 WL 439386, at *6.
However, for subsection (b) to apply, "the prior conduct must `have been fully taken into account in the determination of the offense level.'" This is not the case here. Although the second state charge may have been fully taken into account in determining the offense level for Mercedes's federal conspiracy conviction, the first state charge resulted from an unrelated state drug conviction for possession of a controlled substance. Accordingly, this Court never intended to give Mercedes an adjustment for the twenty-one months he previously spent in state custody. Thus, there is no discrepancy between the J C and this Court's verbal pronouncement of Mercedes's sentence. Nor is there any need to re-sentence Mercedes or otherwise amend the J C so that it conforms with the oral sentence pronounced by this Court.
Rivers, 329 F.3d at 122 n. 2 (quoting U.S.S.G. § 5G1.3(b).
See United States v. Brown, 232 F.3d 44, 49 (2d Cir. 2000) (affirming the district court's decision not to apply subsection (b) where defendant's undischarged state sentence was for an unrelated drug conviction that was "not fully taken into account").
Admittedly, the Court misspoke when it relied on subsection (b) of section 5G1.3 to impose a sentence fully concurrent with the undischarged portion of defendant's state sentence. I should have cited subsection (c) which provides for concurrent, partially concurrent or consecutive sentences in cases that do not fall under subsections (a) or (b). See United States v. Arroyo, 324 F. Supp. 2d 472, 474 (S.D.N.Y. 2004) ("The record is clear that Arroyo's state offense was not considered in the determination of his offense level for federal sentencing purposes, nor does Arroyo so allege. Thus, this case is governed by the `catch-all' provision of subsection (c), to which Application Note 2 does not apply.").
Within this Circuit, it is the oral sentence which generally controls. See United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995).
C. Rule 36
Mercedes goes to great lengths to convince the Court that Rule 36 provides it with the limited authority to correct errors other than clerical errors at any time. In pressing this argument, Mercedes ignores the following Second Circuit procedure.
See Reply at 2.
Rule 36 authorizes a district judge, at any time, to amend the written judgment so that it conforms with the oral sentence pronounced by the court. What Rule 36 does not permit, however, is amendment of the oral sentence itself. See, e.g., United States v. Guevremont, 829 F.2d 423, 426 (3d Cir. 1987) (holding "a clerical error must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature") (internal quotation marks omitted); United States v. Jones, 608 F.2d 386, 389 (9th Cir. 1979) ("Rule 36 was intended to allow correction of clerical errors, not to allow reassessment of the merits of an earlier decision after the time for reconsideration or appeal ha[s] elapsed."). As the government points out, Rule 36 is not a vehicle for the vindication of the court's unexpressed sentencing expectations, or for the correction of "errors made by the court itself." United States v. Daddino, 5 F.3d 262, 264 (7th Cir. 1993).
Werber, 51 F.3d at 347. See id. at 349 ("We hold that Rule 36 of the Federal Rules of Criminal Procedure provides no jurisdiction to correct an alleged error committed by the judge at sentencing, regardless of whether that correction is designed to delicat an unstated assumption of the sentencing court.)
In any event, this Court need not decide which procedural mechanism is appropriate to re-sentence Mercedes given that he is not entitled to be re-sentenced.
The Werber court suggested that the sentencing court would have jurisdiction under 28 U.S.C. § 2255 to the extent that a defendant claims error in his original sentencing proceeding. See id. at 349 n. 17 ("On remand, the district court would have the authority to permit defendants to amend their Rule 36 motions to become § 2255 petitions."). Here, there is no need to consider such an amendment for two reasons. First, and foremost, Mercedes's motion is completely without merit and, second, a motion under section 2255 would be time-barred under the applicable one-year limitations period.
III. CONCLUSION
For the foregoing reasons, defendant's motion to clarify his sentence is denied. The Clerk of the Court is directed to close this motion [Document #158].
SO ORDERED: