U.S. v. Miller

• Decision Date: 06 May 1999
• Docket Number: Criminal Action No. 2:93cr129.
• Citation: 49 F.Supp.2d 489
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES v. Larry Darnell MILLER, Defendant.

49 F.Supp.2d 489

UNITED STATES v. Larry Darnell MILLER, Defendant.

Criminal Action No. 2:93cr129.

United States District Court, E.D. Virginia, Norfolk Division.

May 6, 1999.

Sherrie Scott Pauline Hardwick, United States Attorney's Office, Norfolk, VA, for U.S.

Martin A. Thomas, Decker, Cardon, Thomas, Weintraub, Coureas & Huffman, Norfolk, VA, George Andrew Neskis, Christie & Kantor, Virginia Beach, VA, for defendant.

ORDER

DOUMAR, District Judge.

Presently before the Court is a Petition on Supervised Release filed by United States Probation Officer Charles E. Logan. In that petition, the Probation Officer outlines several violations of supervised release committed by Defendant, Larry Darnell Miller ("Miller"). After conducting a hearing on the matter and allowing the parties to file written briefs, the Court FINDS by a preponderance of the evidence that Miller violated the terms of his supervised released and is hereby COMMITTED to the United States Bureau of Prisons ("BOP") for a term of twenty-four (24) months.

I. REVOCATION OF SUPERVISED RELEASE

A. Violations of Supervised Release

Miller is on supervised release due to his conviction of Unauthorized Acquisition of Food Stamps in violation of 7 U.S.C. § 2024(b)(1). Miller had pled guilty to Count Four of a four-count indictment on January 3, 1994. On March 10, 1994, the Court sentenced Miller to eighteen (18) months imprisonment. Miller was released from custody on March 21, 1997 and began his three-year term of supervised release.

While on supervised release, Miller committed several violations of the terms of his supervision. The petition submitted by the United States Probation Officer indicated that Miller had failed to report to the probation office as directed, had failed to submit truthful monthly supervision reports, had failed to follow the instructions of the probation officer, had failed to answer truthfully the inquiries of the Probation Officer, had failed to notify the probation office within seventy-two hours that he had changed his employment, had used cocaine, and had committed felonies involving controlled substances. The most serious violations were the alleged controlled substance crimes. The Probation Officer stated that Miller had been arrested on November 28, 1998 by the Norfolk Police Department for Possession of 71.88 grams of crack cocaine and 151 grams of marijuana with Intent to Distribute. Miller was released by the state authorities on a $30,000 bond and has not yet been tried for these offenses.

B. Legal Analysis

A controlled substance offense is a Grade A violation. U.S.S.G. § 7B1.1(a)(1). All of Miller's remaining alleged violations are Grade C. See id. According to the Guidelines, the Court "shall revoke" supervised release if it finds that a defendant committed a Grade A or B violation. U.S.S.G. § 7B1.3(a)(1). If the defendant committed a Grade C violation, the Court may revoke, extend or modify the terms of supervised release. U.S.S.G. § 7B1.3(a)(2). The burden of proof that must be satisfied before the Court revokes supervised release is that the defendant committed the alleged violations by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3).

At the hearing on this matter, the Court heard testimony from Probation Officer Logan and found by a preponderance of the evidence that Miller had committed all of the alleged violations, both the Grade A controlled substance offenses and the remaining Grade C violations. Since Miller's criminal history category is V, the guideline range for his violations is 30 to 37 months imprisonment. See U.S.S.G. § 7B1.4(a). However, due to Miller's original federal offense, the statutory maximum that Miller can be sentenced to is twenty-four months. Accordingly, the Court sentences Miller to twenty-four months.

II. CREDIT FOR TIME SERVED

Defense counsel argued at the revocation hearing that Miller had been imprisoned ten months and twenty days longer than he should have been and that he should be given credit for that time served on this sentence pursuant to 18 U.S.C. § 3585(b). The Government takes no position on whether or not Miller is entitled to credit for time served. Instead, the Government maintains that the decision of whether or not Miller should be awarded credit is a determination to be made by the Attorney General and BOP.

A. Procedural and Factual Background

The following facts are extracted from a memorandum order denying a motion to dismiss Miller's habeas corpus petition. See Miller v. United States, No. 3:95cv993 (E.D.Va. Oct. 25, 1995). Prior to Miller's release on March 21, 1997, Miller had not been incarcerated solely for his federal offense. Miller's relevant arrests and convictions begin on November 16, 1989, when he was sentenced to five years imprisonment by the Portsmouth Circuit Court for Possession of Cocaine. All but six months of that sentence were suspended.

As referenced above, Miller was arrested on federal charges of food stamp fraud on November 4, 1993 and released on bond. On December 7, 1993, while on his federal bond, Miller was arrested on unrelated state drugs and weapons charges and was not released on bond. On January 3, 1994, Miller pled guilty, while in temporary federal custody, to the federal food stamp fraud charges and then was returned to state custody.¹ On February 14, 1994, the Portsmouth Circuit Court issued an arrest warrant for Miller's violation of his 1989 suspended sentence and probation. On March 10, 1994, again in temporary federal custody, this Court sentenced Miller to eighteen months imprisonment. Miller was returned to state custody and a federal detainer was lodged for the March 1994 sentence. On June 8, 1994, the Norfolk Circuit Court sentenced Miller to one year imprisonment for the weapons charge that he had been arrested for on December 7, 1993. Given credit for time served, Miller was paroled from state custody for that offense on July 6, 1994. On September 20, 1994,² the Portsmouth Circuit Court sentenced Miller to a term of five years imprisonment for violating his suspended sentence and ordered that the sentence would run concurrently with the sentences previously imposed in Norfolk Circuit Court and the United States District Court. On October 5, 1994, Miller was released to federal custody pursuant to a writ ad prosequendum.³ On November 8, 1994, Miller was transferred to the Petersburg Federal Correctional Institute and was assigned a federal inmate number. However, BOP determined that Virginia still had primary jurisdiction of Miller, and he was transferred back to the Virginia prison system on February 15, 1995. On March 15, 1995, a federal detainer was lodged at Miller's state institution. On June 3, 1996, Miller was paroled from state custody and began serving his federal sentence.⁴ Miller remained in the custody of BOP until he was released on March 21, 1997.

In summary, Miller was in state custody from December 7, 1993 until July 6, 1994 (approximately seven months), from September 20, 1994 until October 5, 1994 (fifteen days), and from February 15, 1995 until June 3, 1996 (approximately sixteen months), for a total of approximately twenty-three and a half months. Miller was in federal custody from October 5, 1994 until February 15, 1995 (approximately four months) and from June 3, 1996 until March 21, 1997 (approximately nine and a half months), for a total of roughly thirteen and a half months.

Miller contended that his federal sentence should have commenced on October 5, 1994, the date that he was released into federal custody before being sent back to state custody, so his federal sentence of eighteen months would have been completed in April 1996. Accordingly, Miller filed a petition for a writ of habeas corpus in the Richmond Division of the Eastern District of Virginia. In an Order dated April 17, 1997, Judge Spencer relied upon the representation of BOP and declared that Miller's federal sentence commenced nunc pro tunc as of December 1, 1995 and Miller was entitled to be released. Miller v. Powell, No. 3:95cv 993 (E.D.Va. Apr. 17, 1997) (order dismissing petition as moot). In this proceeding, Miller argues that his federal sentence should have expired on May 1, 1996 when he was paroled from state custody. Thus, he contends that his continued service until March 21, 1997 (ten months and twenty days) was time not credited to any sentence.

B. Determination of Credit for Time Served

Title 18, section 3585(b) of the United States Code provides:

Credit for prior custody. — A defendant shall be given 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 service was imposed.

18 U.S.C. § 3585(b). Calculations of credit for time served are performed by the Attorney General, not the sentencing judge.⁵ United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992); Barden v. Keohane, 921 F.2d 476 (3rd Cir.1990). The Supreme Court reasoned that the Attorney General was responsible for such calculations prior to the Sentencing Reform Act and that there was nothing in the new law to change that procedure.⁶ Wilson, 503 U.S. at 335, 112 S.Ct. at 1355. See also United States v. Galicia-Delgado, 130 F.3d 518, 522 (2nd Cir.1997) (holding that the Attorney General determines crediting for time served under 18 U.S.C. § 3585(b)); United States v. Baxtron, 106 F.3d 404 (table), No. 96-1757, 1997 WL 14150, *2 (7th Cir. Jan. 7, 1997) (same). Moreover, the Court reasoned that the provision typically refers to credit awarded for pretrial detention, which is not a determination made by the sentencing judge. Wilson, 503 U.S. at 335, 112 S.Ct. at 1355.

It appears that the position taken by...