Werber v. U.S.

• Decision Date: 27 July 1998
• Docket Number: No. 8,D,8
• Citation: 149 F.3d 172
• Parties: Gregory David WERBER, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. ocket 95-2668.
• Court: U.S. Court of Appeals — Second Circuit

Page 172

149 F.3d 172

Gregory David WERBER, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 8, Docket 95-2668.

United States Court of Appeals, Second Circuit.

Argued Jan. 5, 1998.

Decided July 27, 1998.

Lewis J. Liman, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Miguel A. Estrada, Special Assistant United States Attorney, Alexandra Rebay, Craig A. Stewart, Assistant United States Attorneys, on the brief), for Respondent-Appellant.

Kenneth D. Wasserman, New York City, for Petitioner-Appellee.

Before: KEARSE and JACOBS, Circuit Judges, and ARTERTON ^*, District Judge.

JACOBS, Circuit Judge:

Petitioner Gregory David Werber was convicted in 1992 of four counts of fraud-related crimes in the United States District Court for the Southern District of New York (McKenna, J.), and was sentenced to 47 months, 12 days of imprisonment. Werber now moves pursuant to 28 U.S.C. § 2255, asserting that he was deprived of due process because the district court relied on a misunderstanding of law in imposing sentence, specifically, the court's (in fact erroneous) assumption that the Bureau of Prisons ("BOP") would credit a substantial portion of Werber's pre-sentence federal detention to his federal sentence, and that his federal sentence would therefore effectively run concurrently with a California sentence imposed for offenses that were taken into account in calculating the federal sentence. Instead, the BOP (properly) refused to credit Werber's pre-sentence federal detention to the federal sentence because it had already been credited to the California sentence, and because 18 U.S.C. § 3585(b) bars double-counting.

Werber has sought an adjustment in sentence to reflect the district court's undoubted intent to impose a sentence concurrent with the California sentence. In a prior appeal, we reversed the district court's grant of Werber's Rule 36 motion. See United States v. Werber, 51 F.3d 342, 349 (2d Cir.1995). The Government now appeals from the district court's order granting Werber's § 2255 motion, vacating the original sentence of 47 months, 12 days, and resentencing Werber to time served.

We conclude that at the time of the resentencing the district court lacked the authority to depart downward for its stated reasons, and we therefore vacate the time served sentence, and remand to the district court to impose a sentence of 47 months, 12 days.

BACKGROUND

In 1986, Werber was convicted in the United States District Court for the District of New Mexico of fraud and related conduct, and sentenced to 10 years of imprisonment; he was released on parole on November 9, 1989. Even before his release from prison, however, Werber had begun planning a multi-faceted conspiracy with one John Peter Schmidt. They used phony employment applications to elicit personal information from strangers, and entered this personal information on forged birth certificates, which they then used to obtain driver's licenses and credit cards. Werber and Schmidt toured the country, using phony credit cards and counterfeit cashier's checks to make purchases (including exotic cars) worth nearly $1.5 million, and reselling some of their fleet to car dealers.

On January 30, 1990, Werber was arrested by California authorities while trying to resell a Porsche Cabriolet he had bought the day before with a counterfeit check. Werber pleaded guilty in California state court to grand theft of the vehicle, but his state sentencing was deferred pending his prosecution in New York on federal charges. After 168 days in state custody, Werber was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum.

On October 31, 1991, Werber was indicted (with Schmidt) in the United States District Court for the Southern District of New York on five counts arising out of the cross-country conspiracy that had been ended by his California arrest. On March 20, 1992, three days after the start of his bench trial, Werber pleaded guilty to fraudulent use of access devices in violation of 18 U.S.C. §§ 1029(a)(2) and 2; the trial continued on the other counts. On April 9, 1992, Judge McKenna found Werber guilty of conspiracy in violation of 18 U.S.C. § 371, interstate transportation of property taken by fraud in violation of 18 U.S.C. §§ 2314 and 2, and disposing of property taken by fraud in violation of 18 U.S.C. §§ 2315 and 2.

With a two-point reduction for acceptance of responsibility, the guideline range was 51 to 63 months. Werber then sought a sentence reduction pursuant to U.S.S.G. § 5G1.3 for the 168 days he spent in state custody. Section 5G1.3 requires that a sentence be imposed concurrently with a separate, undischarged term of imprisonment if the conduct underlying the undischarged term has been "fully taken into account" in calculating the offense level for the underlying offense. ¹ U.S.S.G. § 5G1.3(b) (1992). The Government opposed this motion on the ground that § 5G1.3(b) allows sentences to be concurrent with other undischarged sentences, but that Werber could not have been serving an undischarged California sentence because he had not yet been sentenced on that conviction.

The federal sentencing was adjourned. On September 1, 1993, Werber was sentenced by the California court to four years of imprisonment, which was fully discharged as soon as it was imposed by application of a credit for the time Werber had spent in federal custody.

Soon thereafter, the district court denied Werber's request for the 168-day downward adjustment pursuant to § 5G1.3(b), stating:

Sentencing Guidelines § 5G1.3(b) does not apply in the circumstances of this case. One of the conditions of that subsection is that there be an "undischarged term of imprisonment." ... Here, since the California court credited Werber with 1,965 days in custody against his four year sentence (=1460 days), the term of imprisonment to which he was sentenced by the California court is discharged.

At his sentencing on October 22, 1993, Werber renewed his bid for the 168-day allowance, this time recast as a motion for a 168-day downward departure pursuant to U.S.S.G. § 5K2.0, which permits the sentencing court to depart from the guideline range The district court granted a 168-day downward departure pursuant to §§ 5K2.0 and 5G1.3 (Application Note 2), and, having selected 53 months as the appropriate term within the guideline range, sentenced Werber to imprisonment for a term of 47 months, 12 days (i.e., 53 months minus 168 days). The court concluded that the Guidelines overlooked the possibility that a defendant who is sentenced in state court for conduct included in the federal sentence might already have completed the state sentence by the time of the federal sentencing, and that a departure was therefore needed to achieve "a sentence that most nearly approximates the sentence that would have been imposed had all the sentences been imposed at the same time."

to reflect aggravating or mitigating circumstances that were inadequately taken into account in formulating the Guidelines. Werber's motion heavily relied on Application Note 2 to § 5G1.3, which, Werber argued, authorizes a district court to craft a sentence that is effectively concurrent with another sentence, even if the other sentence has been discharged. ²

Werber did not ask the district court to credit against his sentence the time he spent in federal detention before sentencing. Neither Werber nor the Government appealed.

In late October 1993, the BOP determined that most of Werber's pre-sentence federal detention could not be credited to his federal sentence, because the applicable statute, 18 U.S.C. § 3585(b), allows a credit to a federal sentence only for time spent in federal custody resulting from "the offense for which the sentence was imposed ... that has not been credited against another sentence." 18 U.S.C. § 3585(b) (1994) (emphasis added). That subsection precluded crediting that time to the federal sentence, because the California court had already credited most of Werber's pre-sentence federal detention against the California sentence.

In December 1993 and January 1994, Werber wrote to Judge McKenna, contesting the BOP's decision and arguing that (with allowances for additional "good-time" credit) his federal sentence should have been completed on November 12, 1993. Werber asked that the court "correct" the sentence, under Fed.R.Crim.P. 36, so that it would be concurrent with the California sentence. At a February 1994 hearing, Judge McKenna noted that the original sentence reflected the court's assumption that Werber would receive credit for the pre-sentence federal detention, then granted the Rule 36 motion to "correct" Werber's original sentence, and imposed a new sentence of time served, which in effect credited Werber for the pre-sentence federal detention and for "good time."

The Government appealed and, on March 29, 1995, we reversed and remanded with instructions to vacate the corrected judgment and to reinstate the original judgment against Werber. United States v. Werber, 51 F.3d 342, 349 (2d Cir.1995). We held that Rule 36 could be used only to correct clerical errors in a sentence and that the district court erred in employing that rule to correct an error of law. Id. at 348. In a footnote, we left open the possibility that Werber's claim of error might be cognizable under 28 U.S.C. § 2255 To the extent that the defendants claim error in their original sentencing proceedings, the sentencing court would arguably have jurisdiction over their claims under 28 U.S.C. § 2255.... On remand, the district court would have the authority to permit defendants to amend their Rule 36 motions to become § 2255 petitions. We intimate no view with regard to the merits of any possible habeas claims or the proper interpretation of U.S.S.G. § 5G1.3.

Id. at 349 n. 17.

On remand, Werber moved...