Sinito v. Kindt, 91-1770

• Decision Date: 22 January 1992
• Docket Number: No. 91-1770,91-1770
• Citation: 954 F.2d 467
• Parties: Thomas J. SINITO, Petitioner-Appellant, v. T.R. KINDT, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 467

954 F.2d 467

Thomas J. SINITO, Petitioner-Appellant, v. T.R. KINDT, Warden, Respondent-Appellee.

No. 91-1770.

United States Court of Appeals Seventh Circuit.

Argued Nov. 13, 1991.

Decided Jan. 22, 1992.

Thomas G. Longo (argued), Cleveland, Ohio, for petitioner-appellant.

Thomas E. Kieper, Asst. U.S. Atty. (argued), Indianapolis, Ind., for respondent-appellee.

Before WOOD, Jr., COFFEY and MANION, Circuit Judges.

PER CURIAM.

While serving a federal sentence, Thomas Sinito experienced a series of transfers to other federal prisons pursuant to writs of habeas corpus ad prosequendum for other alleged crimes. He ultimately received a longer federal sentence for a second federal conviction, to run concurrently with the one he was serving. In the habeas petition before us, Sinito claims he should have been given several years credit against the second sentence for time served between the date of the first writ and the date of his second sentence. The district court denied the credit. We affirm.

I.

On October 16, 1981, Sinito was convicted of conspiring to conduct a racketeering activity, engaging in a racketeering activity, making extortionate extensions of credit, making collections of extensions of credit by extortionate means, attempting to evade income tax, and filing false and fraudulent income tax returns. The United States District Court for the Northern District of Ohio sentenced him to eighteen years imprisonment and a $20,000 fine. Sinito began serving his sentence at the Federal Correctional Institution in Ashland, Kentucky on November 19, 1981.

On July 27, 1982, Sinito was removed from the Ashland Prison pursuant to a writ of habeas corpus ad prosequendum ¹ issued by the United States District Court for the Northern District of Ohio pending disposition of additional federal charges. Prior to the trial for which the writ had issued, Sinito was transferred to the Federal Correctional Institute in Milan, Michigan. On March 8, 1984, he was removed from Milan pursuant to a state writ of habeas corpus ad prosequendum and he received a one year sentence for aggravated assault from an Ohio state court. Sinito was returned to Milan on November 13, 1984. On July 2, 1986, Sinito was again removed from Milan. This time Sinito pleaded guilty to charges of engaging in a continuing criminal enterprise and possessing with intent to distribute cocaine. He was sentenced by the United States District Court for the Northern District of Ohio to a term of imprisonment of twenty-two years and a concurrent term of imprisonment of five years with a special parole term of three years. This sentence was to run concurrently with the federal sentence Sinito had been serving. ² On July 17, 1986, Sinito received a sentence of seven to twenty-five years for manslaughter from an Ohio state court. Sinito was returned to Milan on July 25, 1986. He was then moved to a higher security federal prison in Terre Haute, Indiana.

II.

In support of his petition, Sinito argues under 28 U.S.C. § 2241(c)(3) (1988) that he is being held in custody in violation of a federal statute, specifically 18 U.S.C. § 3568 (1985), ³ which provides in part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

Id. (emphasis added). Sinito argues that § 3568 requires the Federal Bureau of Prisons to give him credit against his second federal sentence for the time he spent in custody pending his second federal trial. Sinito maintains that he is entitled to subtract from the subsequent 22-year sentence the time from the date the writ of habeas corpus ad prosequendum was issued, July 27, 1982, through the date of his second federal sentencing, July 11, 1986.

Neither the statutory language nor the case law interpreting § 3568 ⁴ support Sinito's argument. Section 3568 provides that a federal prisoner will receive credit towards his sentence for time spent in custody "in connection with the offense or acts for which sentence was imposed." During the period after the writ of habeas corpus ad prosequendum had been issued, Sinito was not held in custody in connection with the federal offenses for which the second sentence was imposed. Instead, he was serving his sentence for his 1981 federal conviction. The issuance of the writ of habeas corpus ad prosequendum did not alter his custody status. It merely changed the location of his custody for the sentence he was already serving. Cf. Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2179, 109 L.Ed.2d 508 (1990) ("Where the writ expressly requires the return of the prisoner to the 'sending' state, the sending state retains full jurisdiction over the prisoner since the prisoner is only 'on loan' to the prosecuting jurisdiction.").

Although the statute is clear, Sinito nevertheless resorts to legislative history to argue that § 3568 mandates that he receive credit for the time he spent in custody awaiting his second federal trial. Sinito focuses on the 1960 and 1966 amendments to § 3568 in support of his argument. In 1960, Congress added the following language to § 3568:

Provided, That the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence.

Pub.L. No. 86-691, 74 Stat. 738 (emphasis added). In 1966, the statute was amended and the "for want of bail ..." clause was removed. Pub.L. No. 89-465, 80 Stat. 214. Sinito maintains that the deletion of that language with the 1966 amendment reveals Congress' intent that all time spent in pretrial custody, regardless of the reason, be credited to the prison term. ⁵

Of course, that is absurd. Sinito was incarcerated because of his existing federal sentence, not because of an anticipated conviction and sentence. The statute insures that those accused and even those convicted of a crime will be given credit for the time they are held before being sentenced for that crime. The legislative history does nothing to imply that someone already serving time for an existing sentence will get double credit while waiting for a second sentence. The statute insures full credit for time in custody for a pretrial detainee or a convicted criminal awaiting sentencing, either of whom would otherwise be free were it not for the pending charge or recent conviction.

The case law is contrary to Sinito's position as well. Although it appears that no reported decisions have addressed the treatment of pretrial federal custody under § 3568, a substantial number of cases have addressed the similar treatment of pretrial detainees in state custody under § 3568. These cases have held that a prisoner in state custody who is subject to a writ of habeas corpus ad prosequendum based on a federal charge is not entitled to pretrial credit against his subsequent federal sentence because the time spent in pretrial custody was credited toward his existing state sentence. Permitting...