Case: 20-30695 Document: 00515962127 Page: 1 Date Filed: 08/02/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 2, 2021
No. 20-30695 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jeremy Rubin,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:18-CR-359-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Jeremy Rubin pleaded guilty to being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).
At sentencing, Rubin requested that the district court take into consideration
the fact that he was in state custody on related conduct for five months prior
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-30695 Document: 00515962127 Page: 2 Date Filed: 08/02/2021
No. 20-30695
to entering federal custody and served approximately 13 more months on his
related state sentence while in federal custody. The district court sentenced
Rubin to a within-guidelines sentence of 52 months in prison. That sentence
included a downward departure of 5 months to account for the time Rubin
served in state custody prior to his transfer to federal custody. The district
court also recommended that the Bureau of Prisons (BOP) award Rubin
credit for time served and calculate that credit based on Rubin’s receipt into
federal custody on January 14, 2019.
We review a sentence imposed by a district court for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). “The abuse-of-
discretion standard includes review to determine that the discretion was not
guided by erroneous legal conclusions.” Koon v. United States, 518 U.S. 81,
100 (1996).
A defendant is entitled to credit toward his federal sentence for any
time spent in official detention prior to the date his federal sentence
commences, if it has not been credited against another sentence. 18 U.S.C.
§ 3585(b). However, the sentencing court is not authorized to calculate credit
for time spent in official detention. United States v. Wilson, 503 U.S. 329,
333-35 (1992). Only the Attorney General, through the BOP, is authorized to
make calculations under § 3585. Id. at 334-35. Nevertheless, sentencing
courts have residual authority to reduce a defendant’s sentence to account
for time served on related charges by means of a downwards variance or
departure. United States v. Madrid, 978 F.3d 201, 207-08 (5th Cir. 2020);
United States v. Hankton, 875 F.3d 786, 792 (5th Cir. 2017).
The district court here imposed a 52-month sentence, which included
a 5-month downward departure for the time Rubin spent in state custody
before his federal sentencing. However, the district court’s written judgment
imposed a total term of “52 month(s) as to count 1, with credit for time
2
Case: 20-30695 Document: 00515962127 Page: 3 Date Filed: 08/02/2021
No. 20-30695
served since January 14, 2019.” The written judgment recommended to the
BOP that Rubin be “given credit for time served.”
In fashioning this sentence and rejecting Rubin’s request for an 18-
month downward departure, the district court appears to have relied on a
sidebar conversation that occurred between the court, counsel, and a
probation officer at sentencing. During that conversation, the probation
officer stated that “If he’s in federal custody since January, he’s going to get
credit,” and that, to facilitate the receipt of such credit, the district court
should “just put[] that on the record and he’ll get credit for that.” Back in
open court, the district court explained that it would “make a specific finding
. . . that [Rubin] was taken into federal custody and that credit should be
calculated from January 14th, 2019.”
As the government now concedes, the BOP could not award Rubin
credit for such time under § 3585(b), because that time had already been
credited against his state sentence. The district court thus appears to have
been operating under the mistaken belief that the BOP could and would
award Rubin credit for the time that he served in federal custody on a related
state sentence. It is thus unclear whether the district court would have
imposed the same sentence had it known that the BOP would be unable to
heed the district court’s recommendation.
We therefore order a LIMITED REMAND to the district court to
consider, and state on the record, whether it would have imposed the same
sentence if it had known that the BOP could not, and therefore would not,
give Rubin credit for time served since January 14th, 2019. The district court
should also consider whether to fashion—through a variance or other
appropriate means—a new sentence to account for Rubin’s total time served.
We retain jurisdiction over this appeal pending the district court’s answer to
our inquiry.
3