974 F.2d 736 (6th Cir. 1992), 91-6153, United States v. Westmoreland

Docket Nº91-6153.
Citation974 F.2d 736
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Jackie Lynn WESTMORELAND, Defendant-Appellant.
Case DateSeptember 10, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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974 F.2d 736 (6th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jackie Lynn WESTMORELAND, Defendant-Appellant.

No. 91-6153.

United States Court of Appeals, Sixth Circuit

September 10, 1992

Argued March 24, 1992.

Page 737

Ed Holt, Asst. U.S. Atty. (argued and briefed) and Jerry G. Cunningham, U.S. Atty., Office of the U.S. Atty., Knoxville, Tenn., for plaintiff-appellee.

Ronald P. Smith (argued and briefed), Knoxville, Tenn., for defendant-appellant.

Before: KENNEDY and SILER, Circuit Judges; and ENGEL, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Defendant Westmoreland appeals from the District Court's order denying his post-conviction motion asking for sentence credit for the time spent at a halfway house and in a residential substance abuse program prior to sentencing. The District Court denied the motion, holding that the time spent at the institutions did not amount to official detention under 18 U.S.C. § 3585. We now REVERSE that decision and REMAND to the District Court with instructions to dismiss the motion for lack of jurisdiction.

At the time of the District Court's decision, the law of this Circuit provided that applications for sentence credits should be made to the District Court. United States v. Wilson, 916 F.2d 1115 (6th Cir.1990), rev'd, --- U.S. ----, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). In reversing Wilson, the Supreme Court held that a district court does not have jurisdiction to apply credit against a sentence under section 3585(b). Rather, the Attorney General, through the Bureau of Prisons, is to make that determination. Review of the Bureau of Prisons' determination is available through the administrative process and ultimately, after the exhaustion of administrative remedies, in the District Court.

In asking that we review a decision denying Westmoreland sentence credit, defendant asks us to review a decision the District Court was not authorized to make. The parties recognize this, but because of the unusual posture of the case, the government has agreed to waive the requirement of exhaustion of administrative review. This waiver, the parties urge, will permit us to review the District Court's decision. We disagree, and find the issue not ripe for decision when it was presented to the District Court.

In Wilson, the Supreme Court expressly stated that 18 U.S.C. § 3585(b) does not authorize a district court "to award credit at sentencing," and that the Attorney General "must continue to compute the credit under § 3585(b) as he did under the former § 3568." --- U.S. at ----, 112 S.Ct. at 1354. For the District Court to make the initial determination, it would have to be acting pursuant to some sort of delegation of authority from the Attorney General, clearly impermissible for an Article III court. For the district court to perform its constitutional functions, it must decide an actual case or controversy ripe for adjudication. There can be no such case or controversy until the Attorney General makes a determination and Westmoreland then seeks judicial review of the determination. 1

We recognize that the Tenth Circuit in United States v. Woods, 888 F.2d 653 (10th Cir.1989), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990), permitted such a waiver of the Attorney General's decision, but the authorities on which it relied were all cases where a decision had been made and the waiver was of administrative appeal requirements. The doctrine of waiver of exhaustion of administrative review is not relevant to this case, where

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the agency has not issued a decision. Although an agency may waive the opportunity to change its mind, it may not waive (and thereby delegate to the district court) the responsibility to make up its mind in the first place. Until the Attorney General makes a sentence credit determination under section 3585(b), the case is not ripe for review by the District Court.

Accordingly, the order of the District Court denying sentence credit is REVERSED and the action is REMANDED to the District Court with instructions to dismiss the motion for want of jurisdiction.

ENGEL, Senior Circuit Judge, dissenting.

I respectfully dissent from the majority's determination that the doctrine of ripeness should preclude our reaching the merits of this appeal. I believe an Article III case or controversy exists, and that the prudential concerns of the ripeness doctrine strongly favor reaching a decision on the merits here. See generally, Buckley v. Valeo, 424 U.S. 1, 117, 96 S.Ct. 612, 681, 46 L.Ed.2d 659 (1976) ("this is a question of ripeness, rather than lack of case or controversy under Article III."); CHARLES WRIGHT, ARTHUR MILLER & EDWARD COOPER, FEDERAL PRACTICE & PROCEDURE § 3532.1 (1984) (discussing dual nature of ripeness).

When Westmoreland first sought presentence credit from the district court our circuit's decision in United States v. Wilson, 916 F.2d 1115 (6th Cir.1990), was still good law. On the very day in which oral arguments were held in this appeal, however, the Supreme Court, in a 7-2 opinion authored by Justice Thomas, reversed our circuit's decision in Wilson and concluded that the Attorney General had the same power to compute such credit under section 3585(b) as the Attorney General had under the predecessor statute, 18 U.S.C. § 3568 (1962). United States v. Wilson, --- U.S. ----, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Under those circumstances, we requested the advice of the parties as to the effect upon the instant appeal of the Supreme Court's decision.

In a letter brief, the United States expressly waived any right it might have to insist that the Attorney General initially determine the credit, citing United States v. Woods, 888 F.2d 653 (10th Cir.1989), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990). Woods held that the defendant's failure to exhaust administrative remedies did not preclude judicial review where the government had failed to interpose an objection in a timely way in the district court. While the decision of another circuit on this question does not bind us, the letter brief clearly evidences the government's affirmative desire, in these proceedings, that our circuit decide the underlying issue of what constitutes official detention, a desire equally shared by the defendant. As the government points out, jurisdiction ultimately to review the questions presented here is not seriously in doubt, although the wisdom of our doing so at this stage is admittedly troublesome. Both the majority and minority opinions in the Supreme Court's decision in United States v. Wilson observe that the normal and preferred course would see this particular question not addressed at the time of sentencing by the district judge, but left to the initial administrative decision by the Attorney General as it impacts upon the defendant's post-sentence time:

After Congress enacted section 3568 in 1966, the Bureau of Prisons developed detailed procedures and guidelines for determining the credit available to prisoners. See Apps. B and C ...; see also United States v. Lucas, 898 F.2d 1554 (CA 11 1990). Federal regulations have afforded prisoners administrative review of the computation of their credits, see 28 C.F.R. §§ 542.10-542.16 (1990); Lucas, supra, at 1557, and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies, see U.S. v. Bayless, 940 F.2d 300, 304-05 (CA 8 1991); and other cases cited therein.

Wilson, --- U.S. at ----, 112 S.Ct. at 1355. The employment of administrative remedies as a condition for judicial relief not only reduces the expense and load upon the court system but normally allows the ultimate

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decision to be made upon a better, more reliable record. In addition, Justice Thomas noted that all too frequently the exact calculation of pre-sentence credits will not be possible at the time of sentencing:

Federal defendants do not always begin to serve their sentences immediately.... Because section 3585(b) bases the credit on how much time a defendant "has spent" (not "will have spent") prior to beginning his sentence, the District Court could not compute the amount of the credit at sentencing.

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