The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
Antonio Delestre has filed what he calls a petition to modify
the order of commitment signed by Judge Lawrence M. McKenna, the
sentencing judge in this case. He argues that the modification is
necessary in order to carry out the agreement pursuant to which
he pleaded guilty and Judge McKenna's intent in imposing
sentence, and that pursuant to that agreement, he should receive
credit for time served from the date he was sentenced in his
state case to the date of sentence in his federal case. For the
reasons explained below, Delestre's application is denied.
Delestre, at one time a member of a gang styled the Latin
Kings, pleaded guilty before Judge McKenna pursuant to a plea
agreement that he signed on June 3, 1996, to two crimes:
Conspiracy to murder members of Unity, a rival gang, in violation
of 18 U.S.C. § 1959(a)(5) (2000); and using and carrying a
firearm during and in relation to that conspiracy, in violation
of 18 U.S.C. § 924(c). The conspiracy charge carried a maximum
penalty of ten years' imprisonment; the firearms charge carried a
mandatory sentence of five years' imprisonment consecutive to the
term imposed for the conspiracy charge.
The plea agreement contained a detailed Sentencing Guidelines
calculation reflecting, in essence, that Delestre had agreed to the maximum sentence permissible under the law, because
his Sentencing Guidelines range far exceeded the statutory
maximum.*fn1 The agreement also reflected Delestre's
explicit acknowledgment that no downward departure from the
agreed-upon Guidelines range was warranted. (May 28, 1996 letter
from Assistant U.S. Attorney Steven M. Cohen to Jonathan S.
Dobbs, Esq., signed by defendant and his attorney on June 3,
1996, at p. 4 ("Plea Agreement"))
On November 19, 1996, Judge McKenna sentenced Delestre to a
term of 15 years' imprisonment. As he had reserved the right to
do in the plea agreement, Delestre's lawyer asked that his
federal sentence run concurrently with a state sentence on
narcotics charges for which Delestre had been arrested on August
26, 1994, and sentenced in January 1995, on the ground that the
narcotics activity was related to Delestre's activities as a
member of the Latin Kings. (11/19/96 Tr. 3, 4) Here it bears
mention that Delestre was transferred from state to federal
custody on July 6, 1995, but the federal government's authority to hold him was based on a writ, and the underlying basis for his
custodial status remained the state charge on which he had
already been sentenced. The government, as it had undertaken to
do in that agreement, took no position on counsel's request. But
in a subsequent exchange, the government informed or at least
suggested to Judge McKenna that if the judge agreed to defense
counsel's request, the federal sentence would run concurrently
from the date Delestre was arrested on the state charge August
26, 1994. That exchange developed in the following fashion.
First, the prosecutor told Judge McKenna that the way he had
imposed concurrent sentences under similar circumstances in the
past had "been simply to reflect that fact in the J and C and to
indicate with respect to sentencing that the sentence should be
treated as if it began running on the relevant state date, so he
gets credit for that time in the state up through today." (Id.
at 4) The discussion then continued:
THE COURT: That would be the let me ask Mr. Dobbs
[defense counsel], was Mr. Delestre detained from the
time of his arrest in the state court?
MR. DOBBS: Yes, he was From August '94 he was
detained in the state case, your Honor. He never was
released on bail. On his arrest he was detained.
THE COURT: Based upon what you have said and my
understanding of 5G1.3 [relating to grouping of
offenses pursuant to the Guidelines] and what Mr.
Cohen [the prosecutor] just said, I am going to grant
MR. DOBBS: Thank you. THE COURT: I just want to see. The arrest date as
given in the presentence report is August 26, 1994.
MR. DOBBS: That is correct, your Honor.
THE COURT: I realize, I think everybody realizes the
sentence construction in this case doesn't appear, as
far as I can see, to leave me any room to do
anything, but in addition to the application, Mr.
Dobbs, do you want to say anything?
(Id. at 4-5) Defense counsel then proceeded to make certain
positive observations about his client and to thank the
government and the court. (Id. at 5-6).
Judge McKenna then followed the plea agreement and imposed a
120-month sentence on the conspiracy count, followed by a
mandatory 60 months on the firearms count, for a total of 180
months, and added:
In view of what we said before, I am going to direct
that that sentence be served concurrently with the
sentence we talked about, that is, the January 1995
plea in the state court, which is described in the
presentence report. The present sentence that I am
imposing is to be served concurrently with that, and
my understanding is that that sentence and my
sentence will therefore begin as of August 26, 1994
and be calculated from that date. In other words, the
15-year sentence that I have imposed begins on August
26, 1994, and should be so calculated.
(Id. at 6-7) The Judgment and Commitment ("J and C") signed by
Judge McKenna included the entry, "Term of imprisonment to be
calculated from 8/26/94." (J and C at 2)
Delestre completed the imprisonment imposed pursuant to his
state sentence on June 14, 2002, and was paroled into federal
custody to serve the remainder of his federal sentence. However, when the U.S. Bureau of Prisons ("BOP") examined the J and C for
the purpose of calculating the time remaining on Delestre's
federal sentence, it found that it could not comply with the
terms of the J and C as written. The BOP based its finding on
18 U.S.C. § 3585(b), which directs how a term of imprisonment is to
be calculated and, in particular, how time served before
sentencing is to be credited. That subsection permits a defendant
to be credited in serving his sentence with time spent in custody
before sentencing when that custody results either from the
offense for which a sentence is imposed or from an arrest that
occurs after commission of the offense for which the sentence is
imposed, but only if the time "has not been credited against
another sentence." As a result, it appeared that Delestre could
not receive credit for time spent in custody prior to imposition
of his federal sentence because even when he was he was in
federal custody, that custody was based on a writ and his
underlying custodial status arose from his state case.
However, in computing Delestre's sentence, the BOP engaged in
what appears to have been a generous reading of Willis v.
United States, 438 F.2d 923, 925 (5th Cir. 1971), which held
that time spent by a defendant in state custody as the result of
action by the federal government, such as the lodging of a
detainer that prevents the defendant's release on bail in his
state case, could be counted against a federal sentence. The BOP gave Delestre what is referred to as "Willis credit" for the time
spent in state custody between August 26, 1994, the date of his
arrest, and January 12, 1995, the date he was sentenced in his
state case time apparently not credited against his state
sentence notwithstanding that the record is bare of evidence
that the federal government took any action during that period
that affected Delestre's custodial status.
Delestre challenged the BOP computation of his sentence in a
petition pursuant to 28 U.S.C. § 2241 in the Middle District of
Pennsylvania, where he was confined, arguing that he should have
received credit for the time he served from the date of his state
sentence to the date of his federal sentence. In a careful and
thorough Report and Recommendation, issued in Delestre v.
Pugh, 3:CV-03-2057 (M.D. Pa. Mar. 2, 2004), Magistrate Judge
Thomas M. Blewitt recommended that the BOP's calculation be
sustained and the writ denied. By order dated March 23, 2004,
Judge John E. Jones III adopted that recommendation.
Section 3582(c) of Title 18 forbids modification of a term of
imprisonment once imposed except upon motion by the Director of
the Bureau of Prisons based on extraordinary circumstances not
applicable here, or upon motion by the government pursuant to
Federal Rule of Criminal Procedure 35 based on the defendant's cooperation. That statute specifically
bars the relief sought here.
Moreover, this court does not have jurisdiction to grant relief
in this case, even if relief were warranted. Even if I were to
construe Delestre's application as a petition for mandamus
directed against the U.S. Bureau of Prisons pursuant to
28 U.S.C. § 1361, the proper respondent on that petition is Delestre's
custodian, and it must be brought in the district where Delestre
is confined. In re Ojeda Rios, 863 F.2d 202, 205 (2d Cir. 1988)
(denying writ of mandamus against custodian outside the court's
jurisdiction). Moreover, mandamus would not be available in a
case such as this one, where habeas corpus is also an available
remedy. See, e.g., Ex Parte Am. Steel Barrel Co.,
230 U.S. 35, 45 (1913) ("The writ of mandamus will only be granted when it
is clear and undisputable that there is no other legal remedy.")
In any event, such a petition plainly would be barred by res
judicata based on the outcome in the case Delestre has already
brought, and lost, in the Western District of Pennsylvania.
Even though this case is disposed of based on what might be
regarded as technical reasons, the record bears review for the
purpose of considering the benefits reaped by Delestre. Beginning
with the sentence itself, Judge McKenna was not obligated to
grant any concurrency at all between the sentence he imposed and a sentence imposed for drug dealing which, although
it related to his activities as a member of the Latin Kings, had
nothing to do with the murder conspiracy to which he pleaded
guilty in this court. Further, if Judge McKenna had wished to
grant the level of relief Delestre now seeks, the only way for
him to have done that would have been to have granted on his own
motion a downward departure of colossal proportions, in the face
of Delestre's agreement in his plea agreement with the government
that no departure was warranted. (Plea Agreement at 4) Such a
departure in this case would have been inconceivable. Finally,
the BOP granted Delestre Willis credit ...