09-0077-cr
USA v. Alonso (Batista)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of March, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10
11 Circuit Judges.
12 _______________________________________
13
14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 v. 09-0077-cr
18 NAC
19 FERNANDO BATISTA,
20 Defendant-Appellant.
21 ______________________________________
22
23 FOR DEFENDANT-
24 APPELLANT: Daniel Nobel, New York, N.Y.
25
1 FOR APPELLEE: Lauren Goldberg, Assistant United
2 States Attorney (Katherine Polk
3 Failla, Assistant United States
4 Attorney, of counsel), for Preet
5 Bharara, United States Attorney for
6 the Southern District of New York.
7
8
9
10 UPON DUE CONSIDERATION of this appeal from the judgment
11 of the United States District Court for the Southern
12 District of New York (Stein, J.), it is hereby ORDERED,
13 ADJUDGED, AND DECREED that the judgment of the District
14 Court is AFFIRMED.
15 Defendant-Appellant Fernando Batista appeals the
16 judgment of the United States District Court for the
17 Southern District of New York, sentencing him to the
18 mandatory minimum of 120 months imprisonment after his plea
19 of guilty to one count of conspiring to distribute and to
20 possess with the intent to distribute five kilograms and
21 more of cocaine in violation of 21 U.S.C. § 846. We assume
22 the parties' familiarity with the facts of the case, its
23 procedural history, and the issue on appeal.
24 On April 25, 2007, Batista pled guilty in New York
25 State Supreme Court to a narcotics charge unrelated to the
26 instant offense, for which he is now serving a six-year
27 sentence, to run concurrently with a two-to-four-year state
2
1 sentence for bail jumping. In May 2007, he wrote a letter
2 to the United States Attorney’s Office for the Southern
3 District of New York stating that he was in state custody
4 and requesting that he face federal charges pending against
5 him. Batista was transferred from state to federal custody
6 in September 2007 but due to what Batista alleges to be
7 “some level of inaction or even outright negligence on the
8 part of the federal authorities” was not presented in
9 federal court until April 4, 2008.
10 The District Court sentenced Batista to the mandatory
11 minimum of 120 months imprisonment. In doing so, it imposed
12 a sentence one month below the United States Sentencing
13 Guidelines range of 121-150 months, citing “the factors in
14 18, U.S.C., 3553(a), and specifically, the fact that there
15 were several months in which [Batista] was in the custody of
16 the federal government before the authorities recognized
17 that fact.” It also instructed that the 120 month sentence
18 would run concurrently with the undischarged state
19 sentences. The District Court, however, rejected Batista’s
20 argument that it should “credit” the time he spent in
21 federal custody from September 2007 to April 2008, finding
22 it had no such authority.
23 Batista’s sole argument on appeal is that the District
3
1 Court erred by stating that it did not have the authority to
2 credit Batista for time he spent in presentence detention,
3 even if the length of that time was attributable to
4 negligence on the part of the Government. Generally the
5 Bureau of Prisons, not a district court, has the authority
6 to determine whether a defendant should receive credit for
7 pre-sentence detention. See United States v. Labeille-Soto,
8 163 F.3d 93, 98 (2d Cir. 1998) (“[C]redit is granted by the
9 Attorney General through the Bureau of Prisons after a
10 defendant is sentenced, and although the defendant may,
11 after exhausting his administrative remedies, obtain
12 judicial review of that Bureau’s determination, the credit
13 is not to be granted by a district court at the time of
14 sentencing.” (internal quotation marks and alterations
15 omitted)). Moreover, credit for prior custody is only
16 authorized pursuant to 18 U.S.C. § 3585(b) where it “has not
17 been credited against another sentence.” Here, as the
18 District Court correctly noted, Batista’s time in pre-
19 sentence federal custody was credited to his state sentence.
20 Batista does not rely on section 3585(b), however, but
21 on an implicit equitable power that, he argues, might be
22 inferred from a district court’s authority to adjust a
23 sentence pursuant to Guidelines § 5G1.3(b) and (c). This
4
1 argument is without merit. As Batista readily conceded at
2 the sentencing hearing, section 5G1.3(b) does not apply
3 here. And it is settled law in this Circuit that section
4 5G1.3(c) does not authorize a district court to credit a
5 defendant for time already served. See United States v.
6 Fermin, 252 F.3d 102, 105 (2d Cir. 2001); see also USSG §
7 5G1.3(c), application note 3(e) (“Unlike subsection (b),
8 subsection (c) does not authorize an adjustment of the
9 sentence for the instant offense for a period of
10 imprisonment already served on the undischarged term of
11 imprisonment.”). We find unconvincing Batista’s attempts to
12 distinguish Fermin from this case.
13 We have reviewed all of Batista’s arguments and have
14 found each of them to be without merit. Accordingly, the
15 judgment of the district court is AFFIRMED.
16
17
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
23
24
25
5