United States v. White

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1721
UNITED STATES OF AMERICA,
Appellee,
v.
ALVIN WHITE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
George J. West, on brief, for appellant.
Donald C. Lockhart and Kenneth P. Madden, Assistant United
States Attorneys, with whom Craig N. Moore, Acting United States
Attorney, on brief, for appellee.
April 6, 2004
Per Curiam. Defendant-appellant Alvin White ("White")
appeals the district court's denial of his request to credit the
time he served at a Rhode Island prison towards his federal
sentence. We affirm.
I.
White was stopped by Rhode Island police officers for a
motor vehicle violation on May 9, 2002. He was taken into state
custody, where it was discovered that a bench warrant on an
unrelated charge had been issued for White in New York. Beginning
on May 10, 2002, White was held at the Adult Correctional
Institution ("ACI") in Rhode Island. On August 29, 2002, White was
released from state custody to the custody of the Immigration and
Naturalization Service ("INS"), but he remained at ACI.
White, a citizen of Jamaica, had been incarcerated in New
York state. He was deported on August 14, 1995. Without
authorization from the Attorney General, White reentered the United
States sometime in 2000.
White was indicted for illegal reentry in violation of 18
U.S.C. §§ 1326(a) and (b)(2) on October 30, 2002. In due course,
White entered a plea of guilty to the charges. At the sentencing
hearing, the district judge asked White whether there were any
motions for downward departure. Counsel stated he would not pursue
any such motion, but did request that the court recognize that
White had been in detention prior to the sentencing and that he
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should be credited for time served at ACI. The district court,
after hearing from the Probation Officer, declined that request
because he did not have the authority to credit White for time
served.
II.
The issue is not whether White should receive credit for
the time spent at ACI before he was transferred to the custody of
the INS, but whether the district court had the power to credit the
time. It did not. It is settled law that under 18 U.S.C.
§ 3585(b), discretion to credit time served is vested in the
Attorney General, through the Bureau of Prisons ("BOP"), and not in
the sentencing court. See United States v. Wilson, 503 U.S. 329,
331-36 (1992) (holding that under § 3585(b) the BOP has the
responsibility of computing the amount of credit a defendant
receives after defendant begins serving a sentence); United States
v. Morales-Madera, 352 F.3d 1, 15 (1st Cir. 2003) ("defendants who
seek credit for discharged sentences must ordinarily apply to the
Attorney General, through the Bureau of Prisons, under 18 U.S.C.
§ 3585(b)").
To the extent that White now seeks to argue his appeal as
a denial of a motion for downward departure, we believe it is
unavailing. We have yet to determine the issue of whether credit
for time served is the proper subject of a motion for downward
departure. See Morales-Madeira, 352 F.3d at 15.
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Assuming arguendo that one could make a legitimate motion
for downward departure based on the lack of credit for time served,
White made no such motion here. While White's counsel made a
"request" for the crediting, in the very same breath he indicated
that he would not pursue any motions for downward departure. Given
that a downward departure was never asked for by White, it cannot
be the case that the district court erred in failing to grant such
a departure sua sponte. United States v. Field, 39 F.3d 15, 21
(1st Cir. 1994), cert. denied, 514 U.S. 1088 (1995).
III.
For the reasons stated above, the judgment of the
district court is affirmed.
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