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January 3, 2005.


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 your application.
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 ...

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