United States v. Michael E. Wickman ( 1992 )

PER CURIAM.

Michael Wickman appeals the district court’s¹ refusal to credit the 214 days that Wickman spent under pre-trial house arrest against the twenty seven month sentence he received after pleading guilty to one count of wire fraud. We affirm.

When originally submitted to a panel of this court, Wickman’s appeal presented two issues: whether the district court in sentencing Wickman had concurrent jurisdiction with the U.S. Bureau of Prisons to determine this sentence credit issue, and if so, whether Wickman’s period of house arrest was “time he has spent in official detention” for which he “shall be given credit” under 18 U.S.C. § 3585(b). The district court held that the Bureau of Prisons has exclusive jurisdiction to determine sentence credit issues and therefore did not reach the “official detention” question.

Following submission to the panel, this appeal was resubmitted to the court en banc for consideration along with other cases raising both jurisdiction and detention issues. The Supreme Court then granted certiorari in a case presenting the jurisdiction question, United States v. Wilson, 916 F.2d 1115 (6th Cir.1990), cert. granted, — U.S. —, 112 S.Ct. 48, 116 L.Ed.2d 26 (1991), a circumstance that is likely to delay this court’s final decisions in the pending en banc cases that turn on that issue. Wickman then advised the court that he would be eligible for release in February 1992 if successful in this appeal and therefore requested prompt disposition. In response, the government confirmed that the appeal would become moot if not promptly resolved and advised that Wickman has now fully (and unsuccessfully) exhausted his administrative remedies with the Bureau of Prisons. Thus, the government does not oppose our now reaching the merits of the “official detention” question.

Because of these time considerations, the court en bane heard oral argument in this case on January 6, 1992, along with Moreland v. United States, 932 F.2d 690 (8th Cir.1991), another case that involves only detention issues. After carefully considering the briefs and arguments of the parties, and the views expressed in Chief Judge Lay’s dissenting opinion, we have concluded that the house arrest restrictions that were placed upon Wickman as conditions of his pre-trial release did not constitute “official detention” within the meaning of § 3585(b). See Villaume v. United States Department of Justice, 804 F.2d 498 (8th Cir.1986), cert. denied 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 514 (1987). Therefore, he is not entitled, as a matter of law, to sentence credit for the time spent under those restrictions.

The judgment of the district court is affirmed.

1 . THE HONORABLE LYLE E. STROM, Chief Judge of the United States District Court for the District of Nebraska.