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U.S. District Courts Have No Authority To Grant Or Deny Credit Toward Sentence
The court of appeals for the Second circuit held that district courts do not have the authority to order the Federal Bureau of Prisons (BOP) to either grant or deny credit or to disregard the BOP's sentence calculation.
A federal prisoner, Peter Thomas Whaley, was convicted of a drug offense and carrying a firearm during the commission of a drug offense. He plead guilty and was sentenced to 77 months for the underlying offense, a consecutive 5-year term for the firearm offense, and a 3-year term of supervised release.
After serving his entire sentence for the underlying drug offense and 508 days for the firearm offense, Whaley's conviction on the firearm offense was vacated under Bailey v. United States, 516 US 137 (1995). Having fully served his sentence for the drug offense, he was released and began serving his 3-year term of supervised release. He was found guilty of having violated the conditions of his supervised release after serving about one year under supervision and sentenced to a 6-month term.
The BOP determined, pursuant to its Program Statement (policy) 5880.28 (Sentence Computation Manual), that 6 months (180 days) of the 508 days that Whaley had served in custody for his vacated firearm conviction should be credited against his six month sentence for violating his supervised release.
The BOP notified the court of its action and at the court's direction released Whaley. The government moved to modify the sentence, pursuant to Fed.R.Crim.Pro. 35(c), to take into account the 508 days that Whaley had spent in custody on his firearm conviction because United States Sentencing Guideline § 7B1.3(e) says a supervised release violation term "shall increase a term of imprisonment ... by the amount of time in official detention that will be credited toward service of the term of imprisonment under 18 U.S.C. § 3585(b)."
The district court denied the Rule 35 motion and rejected the contention that Whaley was entitled to sentencing credit for the 508 days already served. The court held that the § 3585(b)(1) provision did not apply because the offense for which Whaley's 6-month sentence was imposed was the violation of supervised release offense and not the underlying drug offense that gave rise to the supervision. See: United States v Whaley, 5 F.Supp. 110,112-13 (E.D.N.Y.1998).
The appellate court vacated the district court's order on the premise that the Attorney General, through the BOP, possessed the sole authority to make credit determinations pursuant to 18 U.S.C. § 3585(b), and the district courts do not have authority to order the BOP to either grant or deny credit or disregard the BOP's calculations citing to United States v Wilson, 503 US 329,333 (1992) as authority. However, the court held the district court erred as a matter of law in failing to apply U.S.S.G. § 7B1(e) and interpreting § 3585(b)(1) as applying to the offense of violating supervised release rather than as applying to the underlying offense, thus granting Whaley credit of the 6 months already served.
Apparently the government wanted a remand for resentencing on the original 6-month term to increase the sentence, claiming the original sentencing was illegal, but the court found it had no jurisdiction to order resentencing. The court could only review a judgment brought before it on direct appeal.
Whaley was released by the district court on a stay pending appeal and the court of appeals extended the stay. Whaley never had to do any prison time on his supervised release revocation. See: United States v Whaley, 148 F.3d 305 (2nd Cir.1998).
A federal prisoner, Peter Thomas Whaley, was convicted of a drug offense and carrying a firearm during the commission of a drug offense. He plead guilty and was sentenced to 77 months for the underlying offense, a consecutive 5-year term for the firearm offense, and a 3-year term of supervised release.
After serving his entire sentence for the underlying drug offense and 508 days for the firearm offense, Whaley's conviction on the firearm offense was vacated under Bailey v. United States, 516 US 137 (1995). Having fully served his sentence for the drug offense, he was released and began serving his 3-year term of supervised release. He was found guilty of having violated the conditions of his supervised release after serving about one year under supervision and sentenced to a 6-month term.
The BOP determined, pursuant to its Program Statement (policy) 5880.28 (Sentence Computation Manual), that 6 months (180 days) of the 508 days that Whaley had served in custody for his vacated firearm conviction should be credited against his six month sentence for violating his supervised release.
The BOP notified the court of its action and at the court's direction released Whaley. The government moved to modify the sentence, pursuant to Fed.R.Crim.Pro. 35(c), to take into account the 508 days that Whaley had spent in custody on his firearm conviction because United States Sentencing Guideline § 7B1.3(e) says a supervised release violation term "shall increase a term of imprisonment ... by the amount of time in official detention that will be credited toward service of the term of imprisonment under 18 U.S.C. § 3585(b)."
The district court denied the Rule 35 motion and rejected the contention that Whaley was entitled to sentencing credit for the 508 days already served. The court held that the § 3585(b)(1) provision did not apply because the offense for which Whaley's 6-month sentence was imposed was the violation of supervised release offense and not the underlying drug offense that gave rise to the supervision. See: United States v Whaley, 5 F.Supp. 110,112-13 (E.D.N.Y.1998).
The appellate court vacated the district court's order on the premise that the Attorney General, through the BOP, possessed the sole authority to make credit determinations pursuant to 18 U.S.C. § 3585(b), and the district courts do not have authority to order the BOP to either grant or deny credit or disregard the BOP's calculations citing to United States v Wilson, 503 US 329,333 (1992) as authority. However, the court held the district court erred as a matter of law in failing to apply U.S.S.G. § 7B1(e) and interpreting § 3585(b)(1) as applying to the offense of violating supervised release rather than as applying to the underlying offense, thus granting Whaley credit of the 6 months already served.
Apparently the government wanted a remand for resentencing on the original 6-month term to increase the sentence, claiming the original sentencing was illegal, but the court found it had no jurisdiction to order resentencing. The court could only review a judgment brought before it on direct appeal.
Whaley was released by the district court on a stay pending appeal and the court of appeals extended the stay. Whaley never had to do any prison time on his supervised release revocation. See: United States v Whaley, 148 F.3d 305 (2nd Cir.1998).
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Related legal case
United States v. Whaley
| Year | 1998 |
|---|---|
| Cite | 148 F.3d 305 (2nd Cir. 1998) |
| Level | Court of Appeals |
United States v. Whaley, 148 F.3d 205 (2d Cir. 07/10/1998)
[1] U.S. Court of Appeals, Second Circuit
[2] Docket No. 98-1238
[4] July 10, 1998
[5] UNITED STATES OF AMERICA, APPELLEE,
v.
PETER TIMOTHY WHALEY, DEFENDANT-APPELLANT.
[6] Edward S. Zas, (Henriette D. Hoffman on the brief), The Legal Aid Society Federal Defender Division Appeals Bureau, New York, NY for Appellant. Jonathan Mothner, (Zachary W. Carter, Emily Berger on the brief), United States Attorneys Office for the Eastern District of New York, Brooklyn, NY for Appellee.
[7] Before: Oakes, Walker, Circuit Judges and Carman, Chief Judge. *fn1
[8] The opinion of the court was delivered by: Per Curiam
[9] Argued June 8, 1998
[10] Peter Timothy Whaley appeals from an order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge), entered on May 1, 1998 ("the May 1 order"), directing him to report to the Bureau of Prisons ("BOP") to serve a six-month term of imprisonment for violating the conditions of his supervised release.
[11] Vacate.
[12] BACKGROUND
[13] Peter Timothy Whaley appeals from an order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge), entered on May 1, 1998 ("the May 1 order"), directing him to report to the Bureau of Prisons ("BOP") to serve a six-month term of imprisonment for violating the conditions of his supervised release.
[14] In 1989, Whaley was convicted, following a plea of guilty, of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 and of using or carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Whaley was sentenced to 77 months' imprisonment for the narcotics offense, a consecutive five-year sentence for the firearms conviction, and a three-year term of supervised release. On May 9, 1997, after serving his entire sentence for the narcotics conviction and 508 days for the firearm conviction, Whaley's conviction for the firearm count was vacated under Bailey v. United States, 516 U.S. 137 (1995). Having fully served his sentence for the narcotics conviction, Whaley was released from prison and began serving his three-year term of supervised release on the narcotics offense.
[15] On March 19, 1998, in the district court, Whaley admitted to violating his supervised release by leaving the district without permission of the probation office. On April 8, 1998, the district court sentenced Whaley to six months' imprisonment, and on April 15, 1998, Whaley surrendered to the BOP to serve his sentence.
[16] On April 17, 1998, the BOP determined, pursuant to the U.S. Department of Justice Program Statement 5880.28, Sentence Computation Manual, (February 14, 1997), that six months of the 508 days that Whaley had served in custody for his vacated firearms conviction should be credited against his six-month sentence for violating the terms of his supervised release. The BOP contacted the district court about its intended action and at the district court's direction released Whaley.
[17] The government then moved to modify the district court's sentence, pursuant to Fed. R. Crim. P. 35(c), to take into account the 508 days that Whaley spent in custody on his vacated firearms conviction, as required under United States Sentencing Guidelines § 7B1.3(e) which states that:
[18] [w]here the court revokes probation or supervised release and imposes a term of imprisonment, it shall increase the term of imprisonment ... by the amount of time in official detention that will be credited toward service of the term of imprisonment under 18 U.S.C. § 3585(b).
[19] On May 1, 1998, by memorandum and order, the district court denied the government's Rule 35 motion and rejected the contention that Whaley was entitled to sentencing credit for the 508 days already served. The district court held that § 3585(b)(1), which provides that 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," did not apply because "the offense for which [Whaley's] six-month sentence was imposed [was] the violation of [his] supervised release, not the underlying drug offense that gave rise to the supervision." United States v. Whaley, -- F. Supp.--, 1998 WL 262456, at *2 (E.D.N.Y. May 1, 1998). The district court directed Whaley to report to the BOP to serve his sentence. Whaley appeals from this May 1 order. Although the district court denied bail pending appeal, Whaley obtained a temporary stay from the district court as well as two stays from this court and therefore Whaley was not in custody during the pendency of his appeal.
[20] DISCUSSION
[21] As the government concedes, the district court erred in issuing the May 1 order. The Attorney General, through the BOP, possesses the sole authority to make credit determinations pursuant to 18 U.S.C. § 3585(b); the district courts do not have authority to order the BOP to either grant or deny credit or to disregard the BOP's calculations. See United States v. Wilson, 503 U.S. 329, 333 (1992); United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997). Although prisoners may seek judicial review of the BOP's sentencing determinations after exhausting their administrative remedies, the district court is without jurisdiction to compute sentencing credit if a prisoner does not challenge his sentence and has not sought administrative review. See Wilson, 503 U.S. at 335. Because the district court lacked jurisdiction, we vacate the May 1 order.
[22] The government argues, pursuant to United States v. Burd, 86 F.3d 285, 288-89 (2d Cir. 1996), that because the district court was required to consider U.S.S.G. § 7B1.3(e), Whaley's original sentence was illegal and we should vacate and remand for resentencing de novo. We agree that the district court erred as a matter of law in failing to apply U.S.S.G. § 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. See United States v. Meeks, 25 F.3d 1117, 1121-22 (2d Cir. 1994) (punishment for violating the terms of supervised release is punishment for the original offense); United States v. Parriett, 974 F.2d 523, 525-27 (4th Cir. 1992) (same). Nevertheless, we are precluded from remanding for resentencing because we lack jurisdiction over Whaley's sentence. This court may only review a judgment that is "lawfully brought before it for review." 28 U.S.C. § 2106. The government never appealed the April 8, 1998 sentence, although it had ample time to do so following the April 17 revelation that the BOP was releasing Whaley based on credit from his earlier incarceration. Nor did it cross-appeal from the district court's May 1 order. Therefore, Whaley's sentence is not properly before this court.
[23] In sum, this case presents a sequence of errors that leaves us with no alternative but to let Whaley's sentence, together with the BOP's credit for six months of time previously served, stand. It is evident that a mechanism must be put into place to alert the district Judge at any sentencing for a violation of supervised release to the existence of applicable prison credits and the need to comply with U.S.S.G. § 7B1.3(e). We remain perplexed as to why the government never appealed the erroneous sentence imposed by the district court.
[24] CONCLUSION
[25] For the foregoing reasons, the judgment of the district court's May 1 order is vacated.
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Opinion Footnotes
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[26] 1 The Honorable Gregory W. Carman, Chief Judge of the United States Court of International Trade, sitting by designation.
19980710
[1] U.S. Court of Appeals, Second Circuit
[2] Docket No. 98-1238
[4] July 10, 1998
[5] UNITED STATES OF AMERICA, APPELLEE,
v.
PETER TIMOTHY WHALEY, DEFENDANT-APPELLANT.
[6] Edward S. Zas, (Henriette D. Hoffman on the brief), The Legal Aid Society Federal Defender Division Appeals Bureau, New York, NY for Appellant. Jonathan Mothner, (Zachary W. Carter, Emily Berger on the brief), United States Attorneys Office for the Eastern District of New York, Brooklyn, NY for Appellee.
[7] Before: Oakes, Walker, Circuit Judges and Carman, Chief Judge. *fn1
[8] The opinion of the court was delivered by: Per Curiam
[9] Argued June 8, 1998
[10] Peter Timothy Whaley appeals from an order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge), entered on May 1, 1998 ("the May 1 order"), directing him to report to the Bureau of Prisons ("BOP") to serve a six-month term of imprisonment for violating the conditions of his supervised release.
[11] Vacate.
[12] BACKGROUND
[13] Peter Timothy Whaley appeals from an order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge), entered on May 1, 1998 ("the May 1 order"), directing him to report to the Bureau of Prisons ("BOP") to serve a six-month term of imprisonment for violating the conditions of his supervised release.
[14] In 1989, Whaley was convicted, following a plea of guilty, of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 and of using or carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Whaley was sentenced to 77 months' imprisonment for the narcotics offense, a consecutive five-year sentence for the firearms conviction, and a three-year term of supervised release. On May 9, 1997, after serving his entire sentence for the narcotics conviction and 508 days for the firearm conviction, Whaley's conviction for the firearm count was vacated under Bailey v. United States, 516 U.S. 137 (1995). Having fully served his sentence for the narcotics conviction, Whaley was released from prison and began serving his three-year term of supervised release on the narcotics offense.
[15] On March 19, 1998, in the district court, Whaley admitted to violating his supervised release by leaving the district without permission of the probation office. On April 8, 1998, the district court sentenced Whaley to six months' imprisonment, and on April 15, 1998, Whaley surrendered to the BOP to serve his sentence.
[16] On April 17, 1998, the BOP determined, pursuant to the U.S. Department of Justice Program Statement 5880.28, Sentence Computation Manual, (February 14, 1997), that six months of the 508 days that Whaley had served in custody for his vacated firearms conviction should be credited against his six-month sentence for violating the terms of his supervised release. The BOP contacted the district court about its intended action and at the district court's direction released Whaley.
[17] The government then moved to modify the district court's sentence, pursuant to Fed. R. Crim. P. 35(c), to take into account the 508 days that Whaley spent in custody on his vacated firearms conviction, as required under United States Sentencing Guidelines § 7B1.3(e) which states that:
[18] [w]here the court revokes probation or supervised release and imposes a term of imprisonment, it shall increase the term of imprisonment ... by the amount of time in official detention that will be credited toward service of the term of imprisonment under 18 U.S.C. § 3585(b).
[19] On May 1, 1998, by memorandum and order, the district court denied the government's Rule 35 motion and rejected the contention that Whaley was entitled to sentencing credit for the 508 days already served. The district court held that § 3585(b)(1), which provides that 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," did not apply because "the offense for which [Whaley's] six-month sentence was imposed [was] the violation of [his] supervised release, not the underlying drug offense that gave rise to the supervision." United States v. Whaley, -- F. Supp.--, 1998 WL 262456, at *2 (E.D.N.Y. May 1, 1998). The district court directed Whaley to report to the BOP to serve his sentence. Whaley appeals from this May 1 order. Although the district court denied bail pending appeal, Whaley obtained a temporary stay from the district court as well as two stays from this court and therefore Whaley was not in custody during the pendency of his appeal.
[20] DISCUSSION
[21] As the government concedes, the district court erred in issuing the May 1 order. The Attorney General, through the BOP, possesses the sole authority to make credit determinations pursuant to 18 U.S.C. § 3585(b); the district courts do not have authority to order the BOP to either grant or deny credit or to disregard the BOP's calculations. See United States v. Wilson, 503 U.S. 329, 333 (1992); United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997). Although prisoners may seek judicial review of the BOP's sentencing determinations after exhausting their administrative remedies, the district court is without jurisdiction to compute sentencing credit if a prisoner does not challenge his sentence and has not sought administrative review. See Wilson, 503 U.S. at 335. Because the district court lacked jurisdiction, we vacate the May 1 order.
[22] The government argues, pursuant to United States v. Burd, 86 F.3d 285, 288-89 (2d Cir. 1996), that because the district court was required to consider U.S.S.G. § 7B1.3(e), Whaley's original sentence was illegal and we should vacate and remand for resentencing de novo. We agree that the district court erred as a matter of law in failing to apply U.S.S.G. § 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. See United States v. Meeks, 25 F.3d 1117, 1121-22 (2d Cir. 1994) (punishment for violating the terms of supervised release is punishment for the original offense); United States v. Parriett, 974 F.2d 523, 525-27 (4th Cir. 1992) (same). Nevertheless, we are precluded from remanding for resentencing because we lack jurisdiction over Whaley's sentence. This court may only review a judgment that is "lawfully brought before it for review." 28 U.S.C. § 2106. The government never appealed the April 8, 1998 sentence, although it had ample time to do so following the April 17 revelation that the BOP was releasing Whaley based on credit from his earlier incarceration. Nor did it cross-appeal from the district court's May 1 order. Therefore, Whaley's sentence is not properly before this court.
[23] In sum, this case presents a sequence of errors that leaves us with no alternative but to let Whaley's sentence, together with the BOP's credit for six months of time previously served, stand. It is evident that a mechanism must be put into place to alert the district Judge at any sentencing for a violation of supervised release to the existence of applicable prison credits and the need to comply with U.S.S.G. § 7B1.3(e). We remain perplexed as to why the government never appealed the erroneous sentence imposed by the district court.
[24] CONCLUSION
[25] For the foregoing reasons, the judgment of the district court's May 1 order is vacated.
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Opinion Footnotes
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[26] 1 The Honorable Gregory W. Carman, Chief Judge of the United States Court of International Trade, sitting by designation.
19980710