United States v. Gary Tagbering

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-4070
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Gary F. Tagbering, also known as *
Richard W. Gaines, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 19, 1997
Filed: June 25, 1997
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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
Gary F. Tagbering pleaded guilty to a drug-trafficking offense and to using
firearms in relation to drug-trafficking offenses. The district court1 sentenced him to
sixty months in prison on the drug offense, a consecutive sixty-month term on the
firearms offense, and three years of supervised release. After the Supreme Court’s
decision in Bailey v. United States, 116 S. Ct. 501 (1995), the district court granted
Tagbering’s motion to vacate the firearms conviction, and he was released from prison
1
The HONORABLE FERNANDO J. GAITAN, JR., United States District Judge
for the Western District of Missouri.
to begin his three-years of supervised release on the drug-trafficking offense. Three
months later, the district court revoked supervised release and sentenced Tagbering to
two years in prison for violating supervised release conditions. Tagbering then moved
the district court to credit his revocation sentence with 108 days that he served in prison
on the vacated firearms conviction after he had completed serving the drug-trafficking
portion of his initial sentence. The district court denied that motion, and Tagbering
appeals. We affirm.
Tagbering argues that the revocation sentence is directly related to his original
conviction and therefore the 108 days should be credited “in the interest of fairness.”
However, a prisoner has no constitutional right to credit for prison time served on a
prior illegal conviction against a sentence imposed as a result of subsequent unlawful
conduct. See Holscher v. Young, 440 F.2d 1283, 1290 (8th Cir. 1971). In addition,
the applicable federal statute, 18 U.S.C. § 3585(b), does not appear to authorize credit
for time spent in “official detention” in these circumstances, and in any event the
Attorney General must make initial sentence credit decisions under that statute. See
United States v. Wilson, 503 U.S. 329 (1992). Thus, the district court did not abuse
its discretion in denying Tagbering’s motion.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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