
USCA1 Opinion

	




          August 9, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1960                                     UNITED STATES,                                      Appellee,                                          v.                                  PETER M. CUMMING,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            Peter Clifford on brief for appellant.            ______________            Peter M. Cumming on brief pro se.            ________________                                 ____________________                                 ____________________                      Per Curiam.  Peter  M. Cumming, a federal prisoner,                      __________            appeals his  conviction and sentence following  a guilty plea            to  eight  counts of  unlawful  importation  into the  United            States  of  the controlled  substances  diazepam and  codeine            phosphate  on various  dates in  April and  May of 1989.   21            U.S.C.    952(a)  and 952(b).   The sentence  imposed was  78            months'  imprisonment  (the  lowest level  of  the  guideline            range), four  years  of supervised  release, no  fine, and  a            felony assessment of $400.  Cumming's court-appointed counsel            has filed a renewed  motion to withdraw1 and  briefs pursuant            to Anders v.  California, 386 U.S. 738 (1967),  raising three               ______     __________            potential grounds  for relief,  but concluding that  none are            meritorious and  requesting that  the appeal be  dismissed as            frivolous.  Cumming has filed a supplemental pro se brief and                                                         ___ __            two  addenda  raising  additional  issues.   Our  independent            review  of  these  filings  and  the  record,  which  is  now            complete, fails  to reveal  any appellate issues  of arguable            merit.                      Cumming was in the "business" of importing into the            United  States  large  quantities of  diazepam  (valium)  and            codeine phosphate from a supplier in England.  Arrested there            by  Scotland Yard  in April 1990,  Cumming pleaded  guilty to            various counts charging him with assisting in or inducing the                                            ____________________            1.  Counsel's  previous withdrawal motion  was denied pending            review of the change-of-plea and sentencing transcripts.                                         -2-            unlawful supply of  controlled drugs,  an offense  punishable            under United  States law,  and received two  concurrent three            and  six-year sentences.   Released  from British  custody in            February  1993,  Cumming returned  to  this  country and  was            promptly  arrested by DEA agents pursuant to a June 1990 109-            count indictment  charging him  with unlawful  importation of            controlled substances into the United States.                      At sentencing  on August 20, 1993,  Cumming made an            oral motion  for dismissal based on  double jeopardy grounds.            He  contended  that the  British  indictment  and the  United            States indictment charged  him with crimes  involving illegal            importation  of the same drugs and that he had already served            almost three years in  the British prison system for  what he            characterized  as   the  same  offenses.     Second,  Cumming            maintained  that his  arrest  was illegal  under 18  U.S.C.              41112  because  of that  foreign  conviction.   He  conceded,            however,  that although  he had  been approved  for a    4111            transfer, he had  opted out because of the  length of time he            would have had to serve after the transfer.  Finally, Cumming                                            ____________________            2.  Section 4111 governs treatment of persons  transferred to            the United States  after a foreign conviction and provides in            part that:            An  offender transferred  to the United  States shall  not be            detained,  prosecuted,  tried,  or  sentenced by  the  United            States, or any State thereof  for any offense the prosecution            of  which would have been  barred if the  sentence upon which            the  transfer  was  based   had  been  by  a  court   of  the            jurisdiction seeking to prosecute the transferred offender, .            . .                                         -3-            asked  to be given credit  for 34 months  in British custody.            The district court denied Cumming's motion for dismissal.                      Counsel  identifies  three  possible   grounds  for            appeal:   (a)  double  jeopardy and  dual sovereignty  issues            arising out  of the prosecutions  in England, (b)  defects in            the change-of-plea proceeding, and (c) sentencing violations.            Cumming's pro  se brief essentially reiterates  the arguments                      ___  __            made at sentencing.                      (a)   Assuming that  the British and  United States            convictions involve the same narcotics importation scheme and            the  same offenses  under Blockburger  v. United  States, 284                                      ___________     ______________            U.S.  299, 304  (1932), it  is well  settled that  successive            prosecutions by  two sovereigns for the same  conduct are not            barred by the double jeopardy  clause of the Fifth Amendment.            Heath v. Alabama, 474 U.S. 82, 88 (1985); United States  v. A            _____    _______                          _____________     _            Parcel  of Land with A Building Located Thereon, 884 F.2d 41,            _______________________________________________            43 (1st Cir. 1989).  Nor does 18 U.S.C.   4111 afford Cumming            any  relief.    Its protections  can  only  be  invoked if  a            defendant  is  transferred  to  the United  States  "for  the            purpose  of execution in one country of a sentence imposed by            the  courts  of  another  country."   18  U.S.C.     4101(j).            Cumming  does not (nor could  he) claim that  he was actually            transferred in order to complete the execution of his foreign            sentence,  since  that  sentence  was  fully  discharged   in            England.                                         -4-                      (b)    Our review  of  the  change-of-plea colloquy            clearly shows  that Cumming's  guilty plea was  knowingly and            voluntarily made.  See  Boykin v. Alabama, 395 U.S.  238, 242                               ___  ______    _______            (1969).  The factual basis of the plea was undisputed and, in            response  to the  court's inquiries,  Cumming stated  that he            understood the rights relinquished by his plea change and the            concomitant sentencing exposure.                      (c)  Moreover, we perceive no apparent error in the            district  court's sentencing procedures  or calculations.  We            observe that  insofar as Cumming simply  seeks federal credit            for the time spent  in British custody, a request  for credit            for  prior custody under 18 U.S.C.   3585(b)(2) must be made,            in the first  instance, to the  Attorney General through  the            Bureau of Prisons upon imprisonment after sentencing.  United                                                                   ______            States v.  Wilson, 112 S.  Ct. 1351, 1354  (1992) ("[Section]            ______     ______            3585(b) does not  authorize a district  court to compute  the            [presentence  detention]  credit  at  sentencing.").     Once            administrative remedies  are  exhausted,  see  28  C.F.R.                                                          ___            542.10-542.16, prisoners may then seek judicial review of any            jail-time credit  determination, Wilson, 112 S.  Ct. at 1355,                                             ______            by filing a habeas petition under 28 U.S.C.   2241.  Koray v.                                                                 _____            Sizer, 21 F.3d 558, 559 (3d  Cir. 1994); McClain v. Bureau of            _____                                    _______    _________            Prisons, 9 F.3d 503, 505 (6th Cir. 1993).            _______                      To the extent that Cumming's request for credit was            a  request for a downward departure under U.S.S.G.   5K2.0 --                                         -5-            i.e.,  that  the  prior  foreign custody  could  properly  be            ____            considered a  mitigating factor -- and  assuming that Cumming            contends that a mistake  of law was made, the  district court            correctly  found  no reason  to  depart.   Under  Wilson, the                                                              ______            authority  vested in  the Attorney  General to  compute prior            jail-time  credit  cannot  be   circumvented  by  allowing  a            downward departure under U.S.S.G.   5K2.0, absent exceptional            circumstances not present here.  United States v. Daggao,                                                 _____________    ______  ___            F.3d       , No. 93-10321,  (9th Cir. Jul.  1, 1994), 1994 WL                  _____            288129.  The caselaw is otherwise clear that Cumming's credit            request was not a  proper sentencing factor and thus  was not            yet ripe for review.  See Martinez v. United  States, 19 F.3d                                  ___ ________    ______________            97, 99  (2d Cir. 1994); United  States v. Huss,  7 F.3d 1444,                                    ______________    ____            1448-49 (9th Cir. 1993); United States v. Brann, 990 F.2d 98,                                     _____________    _____            103-04 (3d Cir. 1993);  see also United States v.  Moore, 978                                    ___ ____ _____________     _____            F.2d 1029, 1030-31 (8th Cir. 1992).                      In accordance with the dictates of Anders, 386 U.S.                                                         ______            at 744, counsel adequately conveyed the potential conceivable            issues  for  appeal  and  concluded that  no  arguable  error            exists.  Careful review confirms that no arguably meritorious            issues are raised by this appeal.  Id.  Appellant's motion to                                               ___            consider pro se  supplemental briefs is  granted.  All  other                     ___ __                          _______            pending motions by appellant are denied.                                             ______                      The  judgment of  the  district court  is summarily            affirmed under Loc. R. 27.1.            ________                                         -6-
