U.S. v. Labeille-Soto
| Decision Date | 09 November 1998 |
| Docket Number | LABEILLE-SOTO,Docket No. 97-1600 |
| Citation | 1998 WL 865122,163 F.3d 93 |
| Parties | UNITED STATES of America, Appellee, v. Juan Alfredo, also known as Luciano Madaro, also known as Juan Badlle, also known as Juan Santo, also known as Luciano Madro, also known as Juan Labelle, also known as Domingo Santo, also known as Juan Sonto, also known as Luciano Madero, also known as Joan Sonto, also known as Lucianno Madre, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
David C. Finn, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Dietrich L. Snell, Assistant United States Attorney, New York, New York, on the brief), for Appellee,
Steven M. Statsinger, New York, New York (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, on the brief), for Defendant-Appellant.
Before: KEARSE, Circuit Judge, POLLACK * and CASEY **, District Judges ***.
Defendant Juan Alfredo Labeille-Soto ("Labeille"), who had previously been deported from the United States after being convicted of an aggravated felony, appeals from a judgment entered in the United States District Court for the Southern District of New York following his plea of guilty before Jed S. Rakoff, Judge, convicting him on one count of reentering the United States without permission, in violation of 8 U.S.C. § 1326 (1994). Labeille was sentenced, within the range recommended by the Sentencing Guidelines (1996) ("Guidelines"), to 63 months' imprisonment, to be followed by a three-year term of supervised release, and was ordered to pay a special assessment of $100; the district court ordered that Labeille's 63-month prison term be deemed to have commenced some 18 months earlier, in order to give him credit for part of the time he had served on an unrelated state criminal charge. On appeal, Labeille contends that the court could not properly give him sentencing credit in this manner and should instead have granted him a downward departure
from the Guidelines range. The government agrees that the court lacked the authority to backdate the commencement of Labeille's sentence and to grant a sentencing credit, but it contends that the court's failure to depart is not appealable. Labeille also contends that the special assessment in the amount of $100, rather than the $50 in effect at the time his offense was completed, violated the Ex Post Facto Clause of the Constitution. The government agrees with this contention. For the reasons that follow, we agree with the parties that the district court lacked the authority to instruct that the commencement of Labeille's sentence be retroactive and to grant Labeille sentencing credit, and we remand for correction of the judgment to delete such instructions. We also direct that the judgment be corrected to reduce the special assessment to $50.
In 1986, Labeille, an alien, was convicted of importing cocaine into United States, in violation of 21 U.S.C. § 952(a), an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43). In 1991, he was deported. He subsequently reentered the United States without having received permission to do so from the Attorney General of the United States.
On November 8, 1994, Labeille was arrested by New York City police officers and accused of selling narcotics. In 1995, he was convicted in state court of the attempted criminal sale of a controlled substance in the third degree and was sentenced to a prison term of one-to-three years. While Labeille was serving that state prison term, officials of the Immigration and Naturalization Service ("INS") learned of his presence in the United States and, on April 19, 1996, determined that he had reentered the country unlawfully. Deportation proceedings were commenced, and an INS detainer was lodged with the state. On October 7, 1996, the state surrendered Labeille to INS custody, where he served the remainder of his state prison term. That state term expired as of July 19, 1997.
In a federal complaint filed in late October 1996, Labeille was charged on one count of entering, attempting to enter, and being found in the United States without permission of the Attorney General after having been deported following a felony conviction, in violation of 8 U.S.C. § 1326. Thereafter, with Labeille's consent, the filing of an indictment was delayed during the pendency of plea negotiations. The indictment was eventually filed in March 1997, and trial was scheduled for June. On the day the trial was to begin, Labeille pleaded guilty. Sentencing, originally scheduled for September, was adjourned until October 1997 at Labeille's request.
In the presentence report prepared on Labeille, the Probation Department concluded that his total offense level was 21 and his Criminal History Category was V, yielding a recommended Guidelines range of imprisonment of 70-87 months. Because Labeille agreed to be deported at the completion of his sentence, the report recommended a one-level downward departure, for a range of 63-70 months. The report recommended a sentence of 63 months.
In response, in a letter from his counsel Robert M. Baum to the district court dated October 3, 1997 ("Baum Letter"), Labeille urged the court to grant him a variety of adjustments, credits, and departures, only two of which are pertinent to this appeal. First, he requested that the court "downwardly depart from the Guidelines by 6 months" (Baum Letter at 7) in order to give him "credit for time spent in state custody when INS was aware of his illegal reentry into this country yet took no action to proceed with the formal filing of charges in this case" (id. at 1). Second, he urged the court to impose a prison term of 37 months, rather than 63 months, in order to give him 26 months' "credit" for the time served on his state sentence, and in effect make his sentence for the instant offense "concurrent with his state sentence." (Id. at 11-12.)
In imposing sentence on October 9, 1997, the district court rejected Labeille's request for a departure on account of the INS's six-month delay in the filing of charges, stating that "that delay does not strike me at all of the magnitude as to warrant [a] departure."
(Sentencing Transcript, October 9, 1997 ("Tr."), 4.) The court also rejected, at least in part, Labeille's request for 26 months' credit for time served on his state sentence. Although the court stated that it believed it had the power to grant such a request pursuant to Guidelines § 5G1.3 (see, e.g., Tr. 28, 36-37), it concluded that such credit would be inappropriate given the seriousness of Labeille's state crime and the fact that it was unrelated to his federal crime. The court hypothesized that such credit might be given to a defendant prosecuted at different times for state and federal offenses that were "part of a single transaction," which would make it reasonable "to view it as one overall package" and to combine the punishments. (Tr. 28.) The court pointed out that Labeille's offenses of illegal reentry and narcotics trafficking were not related
Nonetheless, the court viewed Labeille's circumstances as "a little atypical" (Tr. 31) on the basis that Labeille was "getting hit pretty hard" for the instant offense "because the prior crime happened to be an aggravated felony," and "because he subsequently committed another crime, serious crime but one for which he was separately prosecuted and punished, namely the state drug crime" (Tr. 31-32). The court concluded that Labeille should be sentenced to 63 months for the present offense but should be given six months' credit--though the court was uncertain whether to call that credit a "departure" or a partial "retroactive concurrency" with the state sentence:
I think on balance I'm going to make a modest departure along the lines, again for lack of a better term, [of] retroactive concurrency--.
(Tr. 38; see also id. at 40 (); id. at 41 ()). The court stated
I reach this determination after having already concluded that automatically any sentence that I would impose would, but for this additional departure, run from October 1996, I believe the exact date was October 7, 1996, when he was taken into Federal custody. So this is in addition to that, but I make it explicit in case it isn't automatic that I would in any event find that it constitutes a departure but that this sentence to be imposed would normally run from October 7, 1996. But I will instead have the sentence I am about to impose run from six months earlier than that.
That's why I am not sure it is really a departure. I think it is really a form of calculating concurrency and one that nevertheless goes beyond the clear letter of the guidelines and implicates more than policies of the consecutive concurrent guidelines.... [T]he total picture presented when viewed from the standpoint of concurrency versus consecutiveness seems to me to warrant some modest earlier date as the appropriate date.
In this regard, Mr. Baum, I take account of your point about the delay, but I don't make it a ground for separate departure. I don't think it qualifies as separate departure but I think it is a relevant fact in determining this mix of where is the appropriate point for the concurrency to begin....
. . . . .
Based on that, I will impose a sentence of 63 months to run from whatever six months before October 7, 1996 is--April 7, 1996.
(Tr. 40-42.)
Accordingly, the court instructed that Labeille's 63-month sentence be deemed to have started to run some 18 months before the court imposed it. The written judgment filed on October 14, 1997 ("October 1997 Judgment" or "Judgment"), stated that ...
To continue reading
Request your trial
-
McRae v. Rios
...to a writ of habeas corpus ad prosequendum during the time period for which a pre-sentence credit is sought."); United States v. LaBeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998)("[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior stat......
-
U.S. v. Jones
...v. Prather, 205 F.3d 1265, 1272 (11th Cir.), cert. denied, 531 U.S. 879, 121 S.Ct. 188, 148 L.Ed.2d 130 (2000); United States v. Labeille-Soto, 163 F.3d 93, 101-02 (2d Cir.1998). ...
-
Lopez v. Terrell
...so long as that presentence custody “has not been credited against another sentence.” 18 U.S.C. § 3585(b); see United States v. Labeille–Soto, 163 F.3d 93, 99 (2d Cir.1998) (“[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior state......
-
Dutton v. U.S. Attorney Gen.
...be ordered to commence at a date prior to its imposition. United States v. Gonzalez, 192 F.3d 350 (2d Cir.1999); United States v. Labeille-Soto, 163 F.3d 93 (2d Cir.1998). 5. It should be noted that in cases where the defendant was in non-Federal primary custody at the time the Federal sent......