U.S. v. Daggao

• Decision Date: 01 July 1994
• Docket Number: No. 93-10321,93-10321
• Citation: 28 F.3d 985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Omar Jahal DAGGAO, a.k.a. Omar Jahal Ali-Daggao, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 985

28 F.3d 985

UNITED STATES of America, Plaintiff-Appellee, v. Omar Jahal DAGGAO, a.k.a. Omar Jahal Ali-Daggao, Defendant-Appellant.

No. 93-10321.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 10, 1994.

Decided July 1, 1994.

Barry J. Portman, Federal Public Defender, San Francisco, CA, for the defendant-appellant.

Martha Boersch, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, POOLE, and REINHARDT, Circuit Judges.

Opinion by Judge CHOY; Dissent by Judge REINHARDT.

CHOY, Circuit Judge:

I. FACTUAL AND PROCEDURAL BACKGROUND

Omar Jahal Daggao (a.k.a. Omar Jahal Ali-Daggao) was charged with committing three armed bank robberies, and was arrested on August 27, 1992. He was held in custody until September 9, 1992, when he appeared before a United States magistrate for a bail hearing. The magistrate released Daggao on a $100,000 property bond with several conditions. It was ordered that Daggao be confined to his parents' house, and electronically monitored. He was required to be confined at his parents' house at all times, except to attend a local community college, and for other reasons authorized by Pretrial Services. Pursuant to this order, Pretrial Services authorized him to leave his parents' house every Monday through Friday from 8:00 A.M. to 5:00 P.M. Daggao remained in such in-house detention for approximately seven and a half to eight months. ¹

Prior to sentencing, Daggao requested a downward departure from his Guideline sentence under U.S.S.G. Sec. 5K2.0 on the basis of the approximately eight-month period of in-house detention. The district court denied the downward departure, stating that it did not believe that it had authority to depart downward for time spent under in-house detention under Sec. 5K2.0. When the prosecutor requested that the district court specifically hold that even if it did have such authority, it would deny the request for a downward departure, the district court refused. Daggao was sentenced to 87 months imprisonment, followed by five years supervised release. The 87 month sentence was the low end of the applicable guideline range, based on a total offense level of 27, and Daggao's category III criminal history.

Daggao timely appealed the district court's sentence, claiming that the court erred in finding that it lacked authority under U.S.S.G. Sec. 5K2.0 to depart downward for time spent under in-house detention. We affirm.

II. DISCUSSION

We review de novo the district court's decision that it lacked authority to grant a downward departure from the Sentencing Guidelines. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc).

Daggao claims that the district court erred in finding that it lacked authority to depart downward from the Sentencing Guidelines for time spent under in-house detention prior to sentencing. U.S.S.G. Sec. 5K2.0 states:

Under 18 U.S.C. Sec. 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described."

If the district court identifies an aggravating or mitigating circumstance not adequately taken into account by the Commission, then "the court is legally authorized to depart so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. Sec. 3553(a), with the Guidelines, and, of course, with the Constitution." Lira-Barraza, 941 F.2d at 746.

To the extent that the Sentencing Commission has not considered the conditions or time under which a defendant is released or detained before trial or sentencing, it is simply because a sentencing court lacks statutory authority to consider it as a factor at sentencing, as the Supreme Court held in United States v. Wilson, --- U.S. ----, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). In Wilson, the Supreme Court held that the district court has no authority to grant a defendant credit for any time served in detention before sentencing, but rather that the Attorney General has the sole authority to grant credit for time already served.

In United States v. Huss, 7 F.3d 1444, 1448-49 (9th Cir.1993), we upheld the district court's finding that it lacked authority to depart downward from the Guidelines on the basis of time which the defendant had already spent in state custody. We found that authority to depart was precluded by the Supreme Court's decision in Wilson. In doing so, we rejected the defendant's argument that "he was not asking the district court to circumvent Wilson, but rather to credit Huss for time that he served that would not be recognized by the BOP." Huss, 7 F.3d at 1449. The court stated that credit for such time served could only be pursued in district court once the defendant had exhausted administrative remedies by challenging the decision of the Bureau of Prisons (BOP) not to grant credit. Id. Therefore we refused to reverse the district court's determination that it lacked authority to depart downward for time spent in state custody.

Daggao is also trying to receive a downward departure for time for which the BOP will not grant credit. ² While Daggao's confinement involved time spent in pre-trial detention rather than time spent in state custody, this is not a meaningful distinction for purposes of U.S.S.G. Sec. 5K2.0. Accordingly, if Wilson precludes granting a downward departure for time spent in state custody, it also precludes departure for time spent under pre-trial in-house detention.

Daggao claims that Huss is not dispositive because the court couched its opinion under the rationale that rather than ask for a downward departure for time spent in state custody, the defendant should have exhausted administrative remedies before appealing. The administrative remedy the court referred to was a challenge to the Attorney General's sentencing policy, followed by a habeas corpus petition on that issue. ³ As Daggao recognizes, our opinion in Huss was focused on the power to grant credit, an administrative action which is generally left to the Attorney General. For this reason, we did not discuss whether pre-trial detention was considered by the Guidelines, or constitutes a mitigating circumstance warranting a downward departure.

Daggao claims that this court in Huss did not discuss whether pre-trial detention was considered by the Guidelines, or constitutes a mitigating circumstance, because Huss asked for a downward departure for the purpose of obtaining credit he would otherwise not receive. Huss, 7 F.3d at 1448-49. Daggao argues that his claim is different in that he has made it clear he is not asking for credit, only that his detention be considered as a mitigating circumstance. This argument misses the point of our holding in Huss. We denied the downward departure in terms of authority to grant credit because we determined that it was improper to circumvent the Attorney General's policies regarding when credit should be granted. Such policies should be directly attacked. Even though in this case Daggao is asking for downward departure as "mitigation," the result is that he wants credit for time served in the form of a downward departure. In Huss we determined that a district court lacks authority to depart downward for time served.

Daggao argues that this construction is undermined by this court's decision in United States v. Miller, 991 F.2d 552 (9th Cir.1993). In that case, this court held that it was proper for the district court to depart downward from the Guidelines because of six-months of home detention which the defendant had already served under an erroneous sentence. The court specifically held that Wilson was inapposite to the district court's power to depart downward from the Sentencing Guidelines. Id. at 554 n. 2. However, the circumstances of Miller were different from those of the case at bar. The posture of the case in Miller was that the district court's initial downward departure from the Guidelines was remanded by this court because the district court failed to adequately explain its reasons for departing from the Guidelines. When the district court reimposed the same sentence, one of the reasons it gave was that Miller had already served most of the original six-month home detention sentence, and it would be a "travesty" to make her serve the Guideline sentence at this point. This court agreed in part:

We agree it may have been proper to depart because of the six months of home detention Miller had already served. The fact that she'd already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others. See 18 U.S.C. Sec. 3553(a)(2) (sentence should reflect these and other considerations). And because the Commission seems not to have considered the issue of compensating for time erroneously served, the district court was free to depart. See 18 U.S.C. Sec. 3553(b).

991 F.2d at 554. We specifically stated that it is "the issue of compensating for time erroneously served" which the Commission had not considered. Id. In Daggao's case, the time served was not as part of an erroneous sentence, but was merely a bail condition based on Daggao posing a risk of flight.

Instead of distinguishing this case from Huss, the appropriate distinction is between Huss and Miller. Miller is distinguishable from both Huss and Wilson on the ground that it involved someone who had already been sentenced, whereas in Wilson and Huss, the question was credit for time spent before sentencing. The holding of Miller is limited to the unique situation where time was served under an erroneous sentence. The quotation from ...