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United States of America v. Newton Bey

December 15, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NEWTON BEY, DEFENDANT.



The opinion of the court was delivered by: Kathryn H. Vratil United States District Judge

MEMORANDUM AND ORDER

This matter is before the Court on defendant's 3582 Motion [For] Modification Relating To Early Termination Of Supervised Release (Doc. #437) filed November 18, 2011. For reasons stated below, the Court sustains defendant's motion in part.

Factual Background

On January 10, 1995, defendant pled guilty to use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On April 10, 1995, the Court sentenced defendant to five years in prison on the firearm count and 135 months in prison on the distribution count, to run consecutively.

On March 4, 2008, because defendant's guideline sentencing range had been lowered and made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(u), the Court reduced defendant's sentence from 195 months to 168 months, i.e. 108 months consecutive to the 60 month sentence on the firearm count under 18 U.S.C. § 3582(c)(2). Because defendant had already served at least 168 months, the Court reduced his sentence to "time served." Nunc Pro Tunc Order Regarding Motion For Sentence Reduction Pursuant To 18 U.S.C. § 3582(c)(2) (Doc. # 372) filed March 4, 2008 at 1. The Bureau of Prisons released defendant from custody subject to supervised release.

On September 29, 2009, the Court revoked defendant's supervised release and sentenced him to nine months in prison and three years of supervised release. On January 13, 2010, defendant asked the Court to reduce his sentence of nine months to time served because he had "over-served" his prior sentence of 168 months by some 18 months. On January 19, 2010, the Court overruled defendant's motion. See Memorandum And Order (Doc. #395). In particular, the Court stated as follows:

Defendant seeks relief under 18 U.S.C. § 3582(c)(2), which grants a district court authority to reduce the sentence of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that the United States Sentencing Commission has subsequently lowered pursuant to 28 U.S.C. § 994(o) "if such a reduction is consistent with applicable policy statements issued by the Commission."

18 U.S.C. § 3582(c)(2). Defendant argues that his sentence upon revocation of supervised release is part of his sentence for the underlying offense. The Tenth Circuit, however, has noted that retroactive amendments which lower the sentencing range for the underlying offense have no bearing on defendant's prison term imposed for violation of the terms of supervised release. United States v. Fontenot, 583 F.3d 743, 744 (10th Cir. 2009). A term of imprisonment on revocation of supervised release is based on noncompliance with the terms of supervised release, not on the drug quantity table set forth at U.S.S.G. § 2D1.1(c). Id. Moreover, a sentence reduction is not consistent with the relevant policy statement issued by the Sentencing Commission, which clarifies that Section 3582(c)(2) "does not authorize a reduction in the term of imprisonment imposed upon revocation of supervised release." U.S.S.G. § 1B1.10, cmt. n.4A. The Court therefore overrules defendant's request for relief based on the retroactive amendment regarding offenses involving crack cocaine.

In the alternative, defendant argues that the Court should reduce his sentence of imprisonment under 18 U.S.C. § 3585(b) by giving him credit for the extra time he served on his original sentence. Section 3585(b) gives a defendant "credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-- (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed." The Court overrules defendant's argument because a district court is not authorized to compute service credit under 18 U.S.C. § 3585; credit awards are made by the Attorney General through the Bureau of Prisons. United States v. Wilson, 503 U.S. 329, 333-35 (1992); United States v. French, 297 Fed. Appx. 333, 334 (5th Cir. 2008); see United States v. Pardue, 363 F.3d 695, 699 (8th Cir. 2004) (although Section 3585(b) calls for defendant to receive credit for time served, calculation of sentence left to BOP and not sentencing court). Before seeking judicial review of credits under Section 3585(b), prisoners must exhaust administrative remedies. See French, 297 Fed. Appx. at 334; Buchanan v. U.S. Bureau of Prisons, 133 Fed. Appx. 465, 467 (10th Cir. May 18, 2005); see also Sandefur v. Pugh, 189 F.3d 478, 1999 WL 679685, at *1 (10th Cir. Sept. 1, 1999) (federal inmate must exhaust administrative remedies before seeking review of complaints relating to aspects of imprisonment such as computation of sentence). In any event, defendant's argument appears to be without merit. The Court reduced defendant's original sentence to "time served" so in that sense he did not accumulate credit toward future sentences.

Even if defendant had served additional time on his original sentence, he is not entitled to "bank" that time as a credit against future prison terms for violations of supervised release. See generally United States v. Johnson, 529 U.S. 53, 54 (2000) ("excess prison time" served by defendant on invalidated criminal convictions cannot be credited to reduce length of supervised release period).

Memorandum And Order (Doc. #395) at 2-4 (footnotes omitted). On June 2, 2010, after defendant had completed his nine-month prison term, the BOP released him from custody subject to supervised release.

On January 14, 2011, the Court again revoked defendant's supervised release and sentenced him to 12 months and one day in prison and 15 months on supervised release. See Judgment In A Criminal Case (Doc. #421) filed January 18, 2011. On August 10, 2011, the Tenth Circuit Court of Appeals affirmed the sentence.

On November 17, 2011, the BOP released defendant. On November 21, 2011, defendant entered an in-patient ...


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