USCA1 Opinion
August 9, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1960
UNITED STATES,
Appellee,
v.
PETER M. CUMMING,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Peter Clifford on brief for appellant.
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Peter M. Cumming on brief pro se.
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Per Curiam. Peter M. Cumming, a federal prisoner,
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appeals his conviction and sentence following a guilty plea
to eight counts of unlawful importation into the United
States of the controlled substances diazepam and codeine
phosphate on various dates in April and May of 1989. 21
U.S.C. 952(a) and 952(b). The sentence imposed was 78
months' imprisonment (the lowest level of the guideline
range), four years of supervised release, no fine, and a
felony assessment of $400. Cumming's court-appointed counsel
has filed a renewed motion to withdraw1 and briefs pursuant
to Anders v. California, 386 U.S. 738 (1967), raising three
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potential grounds for relief, but concluding that none are
meritorious and requesting that the appeal be dismissed as
frivolous. Cumming has filed a supplemental pro se brief and
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two addenda raising additional issues. Our independent
review of these filings and the record, which is now
complete, fails to reveal any appellate issues of arguable
merit.
Cumming was in the "business" of importing into the
United States large quantities of diazepam (valium) and
codeine phosphate from a supplier in England. Arrested there
by Scotland Yard in April 1990, Cumming pleaded guilty to
various counts charging him with assisting in or inducing the
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1. Counsel's previous withdrawal motion was denied pending
review of the change-of-plea and sentencing transcripts.
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unlawful supply of controlled drugs, an offense punishable
under United States law, and received two concurrent three
and six-year sentences. Released from British custody in
February 1993, Cumming returned to this country and was
promptly arrested by DEA agents pursuant to a June 1990 109-
count indictment charging him with unlawful importation of
controlled substances into the United States.
At sentencing on August 20, 1993, Cumming made an
oral motion for dismissal based on double jeopardy grounds.
He contended that the British indictment and the United
States indictment charged him with crimes involving illegal
importation of the same drugs and that he had already served
almost three years in the British prison system for what he
characterized as the same offenses. Second, Cumming
maintained that his arrest was illegal under 18 U.S.C.
41112 because of that foreign conviction. He conceded,
however, that although he had been approved for a 4111
transfer, he had opted out because of the length of time he
would have had to serve after the transfer. Finally, Cumming
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2. Section 4111 governs treatment of persons transferred to
the United States after a foreign conviction and provides in
part that:
An offender transferred to the United States shall not be
detained, prosecuted, tried, or sentenced by the United
States, or any State thereof for any offense the prosecution
of which would have been barred if the sentence upon which
the transfer was based had been by a court of the
jurisdiction seeking to prosecute the transferred offender, .
. .
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asked to be given credit for 34 months in British custody.
The district court denied Cumming's motion for dismissal.
Counsel identifies three possible grounds for
appeal: (a) double jeopardy and dual sovereignty issues
arising out of the prosecutions in England, (b) defects in
the change-of-plea proceeding, and (c) sentencing violations.
Cumming's pro se brief essentially reiterates the arguments
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made at sentencing.
(a) Assuming that the British and United States
convictions involve the same narcotics importation scheme and
the same offenses under Blockburger v. United States, 284
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U.S. 299, 304 (1932), it is well settled that successive
prosecutions by two sovereigns for the same conduct are not
barred by the double jeopardy clause of the Fifth Amendment.
Heath v. Alabama, 474 U.S. 82, 88 (1985); United States v. A
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Parcel of Land with A Building Located Thereon, 884 F.2d 41,
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43 (1st Cir. 1989). Nor does 18 U.S.C. 4111 afford Cumming
any relief. Its protections can only be invoked if a
defendant is transferred to the United States "for the
purpose of execution in one country of a sentence imposed by
the courts of another country." 18 U.S.C. 4101(j).
Cumming does not (nor could he) claim that he was actually
transferred in order to complete the execution of his foreign
sentence, since that sentence was fully discharged in
England.
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(b) Our review of the change-of-plea colloquy
clearly shows that Cumming's guilty plea was knowingly and
voluntarily made. See Boykin v. Alabama, 395 U.S. 238, 242
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(1969). The factual basis of the plea was undisputed and, in
response to the court's inquiries, Cumming stated that he
understood the rights relinquished by his plea change and the
concomitant sentencing exposure.
(c) Moreover, we perceive no apparent error in the
district court's sentencing procedures or calculations. We
observe that insofar as Cumming simply seeks federal credit
for the time spent in British custody, a request for credit
for prior custody under 18 U.S.C. 3585(b)(2) must be made,
in the first instance, to the Attorney General through the
Bureau of Prisons upon imprisonment after sentencing. United
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States v. Wilson, 112 S. Ct. 1351, 1354 (1992) ("[Section]
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3585(b) does not authorize a district court to compute the
[presentence detention] credit at sentencing."). Once
administrative remedies are exhausted, see 28 C.F.R.
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542.10-542.16, prisoners may then seek judicial review of any
jail-time credit determination, Wilson, 112 S. Ct. at 1355,
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by filing a habeas petition under 28 U.S.C. 2241. Koray v.
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Sizer, 21 F.3d 558, 559 (3d Cir. 1994); McClain v. Bureau of
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Prisons, 9 F.3d 503, 505 (6th Cir. 1993).
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To the extent that Cumming's request for credit was
a request for a downward departure under U.S.S.G. 5K2.0 --
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i.e., that the prior foreign custody could properly be
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considered a mitigating factor -- and assuming that Cumming
contends that a mistake of law was made, the district court
correctly found no reason to depart. Under Wilson, the
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authority vested in the Attorney General to compute prior
jail-time credit cannot be circumvented by allowing a
downward departure under U.S.S.G. 5K2.0, absent exceptional
circumstances not present here. United States v. Daggao,
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F.3d , No. 93-10321, (9th Cir. Jul. 1, 1994), 1994 WL
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288129. The caselaw is otherwise clear that Cumming's credit
request was not a proper sentencing factor and thus was not
yet ripe for review. See Martinez v. United States, 19 F.3d
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97, 99 (2d Cir. 1994); United States v. Huss, 7 F.3d 1444,
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1448-49 (9th Cir. 1993); United States v. Brann, 990 F.2d 98,
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103-04 (3d Cir. 1993); see also United States v. Moore, 978
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F.2d 1029, 1030-31 (8th Cir. 1992).
In accordance with the dictates of Anders, 386 U.S.
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at 744, counsel adequately conveyed the potential conceivable
issues for appeal and concluded that no arguable error
exists. Careful review confirms that no arguably meritorious
issues are raised by this appeal. Id. Appellant's motion to
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consider pro se supplemental briefs is granted. All other
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pending motions by appellant are denied.
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The judgment of the district court is summarily
affirmed under Loc. R. 27.1.
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