                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-2003

USA v. D'Ambrosia
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2944




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"USA v. D'Ambrosia" (2003). 2003 Decisions. Paper 278.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/278


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No: 02-2944
                                   ______________

                           UNITED STATES OF AMERICA

                                           v.

                               DANIEL D'AMBROSIA,

                                            Appellant




                    Appeal from the United States District Court
                            for the District of New Jersey
                     (D.C. Criminal Action No. 01-cr-00197-3)
                 District Judge: Honorable Dickinson R. Debevoise


                       Submitted Under Third Circuit LAR 34.1(a)
                                   on June 3, 2003

              Before: ALITO, ROTH and STAPLETON, Circuit Judges


                          (Opinion filed September 11, 2003)




                                    OPINION

ROTH, Circuit Judge;

      Daniel D’Ambrosia has appealed the June 27, 2002, judgment of sentence imposed
by the United States District Court for the District of New Jersey. D’Ambrosia was

indicted for racketeering conspiracy. On April 5, 2001, he was granted bail pending trial

on the condition that he post a $250,000 bond secured by property and that he be placed

under house arrest.

       On August 30, 2001, pursuant to a motion filed by the government, a bail

revocation hearing was held. The District Court found that D’Ambrosia had violated the

conditions of his home confinement, revoked his bail, and committed him to the custody

of the Attorney General for confinement. D’Ambrosia was the incarcerated, pending

trial, at the Hudson County Jail.

       On November 13, 2001, D’Ambrosia moved to have the conditions of house arrest

reinstated. On that date, the District Court permitted home confinement under strict

conditions, including visual and electronic surveillance. On November 30, D’Ambrosia

pled guilty to one count of racketeering conspiracy, pursuant to 18 U.S.C. § 1962(d). He

admitted to advancing money to Joseph Servidio with reasonable grounds to believe that

the money would be used to make an extortionate extension of credit to Thomas Caruso.

He also admitted to conducting an illegal sports bookmaking operation. D’Ambrosia’s

home detention was continued until sentencing.

       On June 26, 2002, at sentencing, D’Ambrosia moved for credit towards his

sentence for home confinement. The District Court denied the motion on the ground that

it was outside its authority to extend such a credit. D’Ambrosia was sentenced to a period



                                            2
of imprisonment of 30 months.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

       The District Court did not have jurisdiction to hear D’Ambrosia’s application for

credit pursuant to 18 U.S.C. § 3585 because D’Ambrosia had not exhausted his

administrative remedies. See United States v. Brann, 990 F.2d 98 (3d Cir. 1993); United

States v. Checchini, 967 F.2d 348 (9th Cir. 1992); United States v. Gonzales, 65 F.3d 814

(10th Cir. 1995); United States v. Herrera, 931 F.2d 761 (11th Cir. 1991); United States

v. McGee, 60 F.3d 1266 (7th Cir. 1995).

       The replacement of § 3568 by § 3585 did not change the Attorney General’s

delegation to the Bureau of Prisons of the authority to determine credit for time served in

custody. Pursuant to this authority, the Bureau’s regulations set forth the procedures that

the prisoner must pursue prior to seeking relief in the district court. United States v.

Lucas, 898 F.2d 1554 (11th Cir. 1990). In United States v. Wilson, 503 U.S. 329 (1992),

the Supreme Court held that “§ 3585(b) does not authorize a district court to compute the

credit at sentencing.” Id. at 334; accord Brann, 990 F.2d at 103-104. Rather, the

Attorney General, acting through the Bureau of Prisons, has the authority to determine

prior custody credit in the first instance. Wilson, 503 U.S. at 334-335; accord Brann, 990

F.2d at 104. Therefore, D’Ambrosia must exhaust his administrative remedies with the

Bureau of Prisons before he may seek review of sentencing credit in the district court.

Brann, 990 F.2d at 103-104 (concluding that, because “[t]he issue of whether there has



                                              3
been proper credit of any prior custody to the term of [defendant’s] sentence is not ripe[,]

. . . [defendant] must first exhaust his administrative remedies”).

         For the foregoing reasons, we will affirm the judgment of sentence of the District

Court.




                                              4
TO THE CLERK:

    Please file the foregoing Opinion.




                                         By the Court,




                                         /s/ Jane R. Roth
                                             Circuit Judge




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