United States v. Peters

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50508
Plaintiff-Appellee,
v.  D.C. No.
CR-05-01074-RZ-1
BRETT ANDREW PETERS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Ralph Zarefsky, Magistrate Judge, Presiding
Argued and Submitted
November 16, 2006—Pasadena, California
Filed December 12, 2006
Before: Betty B. Fletcher, Richard D. Cudahy,* and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
19373
UNITED STATES v. PETERS 19375
COUNSEL
Christopher Tayback, Bridget Morris, Quinn Emanuel
Urquhart Oliver & Hedges, LLP, Los Angeles, California, for
the defendant-appellant.
Debra Wong Yang, United States Attorney, and Thomas P.
O’Brien, Michael J. Raphael, Assistant United States Attor-
neys, Los Angeles, California, for the plaintiff-appellee.
OPINION
PER CURIAM:
Brett A. Peters appeals from the district court’s judgment
revoking his probation, sentencing him to four months’
imprisonment, and granting him credit for time served
between his arrest for probation violation and his sentencing.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. §§ 636(c)(3), 1291, and we affirm the judgment as
amended.
I. Facts and Procedural History
Peters consumed a number of alcoholic beverages and then
boarded a flight during which he became increasingly obnox-
ious and ended up assaulting a fellow passenger. He pled
guilty to assault in violation of 18 U.S.C. § 113(a)(4). On
June 5, 2006, the district court sentenced Peters to a two-year
19376 UNITED STATES v. PETERS
term of probation, during the first six months of which he was
required to serve weekend jail time, to abstain from drinking
alcohol, and to complete any drug treatment program ordered
by the United States Probation Office.
On or about June 14, 2006, police arrested Peters, who had
a blood alcohol level of .263 percent. On July 20, 2006, Peters
absconded from a residential drug treatment center at which
he had been ordered to reside. On August 18, 2006, Peters
admitted to having violated both of the alcohol-related condi-
tions of his probation. This district court revoked Peters’s pro-
bation and sentenced him to four months in custody, “with
credit for time served from the defendant’s arrest on August
9, 2006.” Peters appealed the district court’s refusal to give
him credit against the four months for the ten days of week-
end time he had spent in custody under the terms of his proba-
tion.
II. Standards of Review
We review de novo a district court’s legal authority under
18 U.S.C. § 3585(b) to grant prison credit. United States v.
Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002). We review
for reasonableness a sentence imposed upon revocation of
probation. United States v. Miqbel, 444 F.3d 1173, 1176 &
n.5 (9th Cir. 2006).
III. Discussion
[1] The district court lacked authority under 18 U.S.C.
§ 3585(b) to grant Peters credit for the time he had served
after his arrest.1 In United States v. Wilson, 503 U.S. 329, 334
(1992), the Supreme Court held that § 3585(b) does not
1
In contrast to its lack of authority to calculate credit for time served,
a district court does have authority to sentence a defendant to time served.
See United States v. Luna-Orozco, 321 F.3d 857, 860 (9th Cir. 2003)
(affirming sentence of time served).
UNITED STATES v. PETERS 19377
authorize a district court to compute credit for time served.
Rather, the prerogative to grant credits in the first instance
rests with the Attorney General, acting through the Bureau of
Prisons. Id. at 334-35. Furthermore, under § 3585’s statutory
scheme, credits cannot be calculated until the defendant com-
mences serving his sentence. Id. at 333. Following Wilson, we
have held that district courts lack authority at sentencing to
give credit for time served. Lualemaga, 280 F.3d at 1265
(“The initial calculation [of credit for time served] must be
made by the Attorney General acting through the Bureau of
Prisons.”).
[2] Because the district court lacked authority to grant
credit under § 3585(b) in the first place, it did not exceed its
authority in refusing to give Peters credit for the weekend
days he had spent in custody as a condition of his probation.
However, the district court’s grant of credit for the time Peters
had served in custody pursuant to his arrest exceeded its
authority, and we strike from the judgment the phrase “with
credit for time served from the defendant’s arrest on August
9, 2006.” See United States v. Long, 301 F.3d 1095, 1108 (9th
Cir. 2002) (per curiam) (striking conviction entered in viola-
tion of double jeopardy clause and affirming judgment as
amended); Royal Indemnity Co. v. Olmstead, 193 F.2d 451,
456 (9th Cir. 1951) (striking $5,000 from judgment). Thus
amended, the judgment and sentence are AFFIRMED.