         09-0077-cr
         USA v. Alonso (Batista)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                        GUIDO CALABRESI,
 8                        ROBERT A. KATZMANN,
 9                        BARRINGTON D. PARKER,
10
11                      Circuit Judges.
12      _______________________________________
13
14      UNITED STATES OF AMERICA,
15               Appellee,
16
17                          v.                                 09-0077-cr
18                                                             NAC
19      FERNANDO BATISTA,
20               Defendant-Appellant.
21      ______________________________________
22
23      FOR DEFENDANT-
24      APPELLANT:                         Daniel Nobel, New York, N.Y.
25
 1   FOR APPELLEE:          Lauren Goldberg, Assistant United
 2                          States Attorney (Katherine Polk
 3                          Failla, Assistant United States
 4                          Attorney, of counsel), for Preet
 5                          Bharara, United States Attorney for
 6                          the Southern District of New York.
 7
 8
 9
10       UPON DUE CONSIDERATION of this appeal from the judgment

11   of the United States District Court for the Southern

12   District of New York (Stein, J.), it is hereby ORDERED,

13   ADJUDGED, AND DECREED that the judgment of the District

14   Court is AFFIRMED.

15       Defendant-Appellant Fernando Batista appeals the

16   judgment of the United States District Court for the

17   Southern District of New York, sentencing him to the

18   mandatory minimum of 120 months imprisonment after his plea

19   of guilty to one count of conspiring to distribute and to

20   possess with the intent to distribute five kilograms and

21   more of cocaine in violation of 21 U.S.C. § 846.   We assume

22   the parties' familiarity with the facts of the case, its

23   procedural history, and the issue on appeal.

24       On April 25, 2007, Batista pled guilty in New York

25   State Supreme Court to a narcotics charge unrelated to the

26   instant offense, for which he is now serving a six-year

27   sentence, to run concurrently with a two-to-four-year state


                                  2
1    sentence for bail jumping.    In May 2007, he wrote a letter

2    to the United States Attorney’s Office for the Southern

3    District of New York stating that he was in state custody

4    and requesting that he face federal charges pending against

5    him.    Batista was transferred from state to federal custody

6    in September 2007 but due to what Batista alleges to be

7    “some level of inaction or even outright negligence on the

8    part of the federal authorities” was not presented in

9    federal court until April 4, 2008.

10          The District Court sentenced Batista to the mandatory

11   minimum of 120 months imprisonment.    In doing so, it imposed

12   a sentence one month below the United States Sentencing

13   Guidelines range of 121-150 months, citing “the factors in

14   18, U.S.C., 3553(a), and specifically, the fact that there

15   were several months in which [Batista] was in the custody of

16   the federal government before the authorities recognized

17   that fact.”    It also instructed that the 120 month sentence

18   would run concurrently with the undischarged state

19   sentences.    The District Court, however, rejected Batista’s

20   argument that it should “credit” the time he spent in

21   federal custody from September 2007 to April 2008, finding

22   it had no such authority.

23          Batista’s sole argument on appeal is that the District


                                     3
1    Court erred by stating that it did not have the authority to

2    credit Batista for time he spent in presentence detention,

3    even if the length of that time was attributable to

4    negligence on the part of the Government.    Generally the

5    Bureau of Prisons, not a district court, has the authority

6    to determine whether a defendant should receive credit for

7    pre-sentence detention.   See United States v. Labeille-Soto,

8    163 F.3d 93, 98 (2d Cir. 1998) (“[C]redit is granted by the

9    Attorney General through the Bureau of Prisons after a

10   defendant is sentenced, and although the defendant may,

11   after exhausting his administrative remedies, obtain

12   judicial review of that Bureau’s determination, the credit

13   is not to be granted by a district court at the time of

14   sentencing.” (internal quotation marks and alterations

15   omitted)).   Moreover, credit for prior custody is only

16   authorized pursuant to 18 U.S.C. § 3585(b) where it “has not

17   been credited against another sentence.”    Here, as the

18   District Court correctly noted, Batista’s time in pre-

19   sentence federal custody was credited to his state sentence.

20       Batista does not rely on section 3585(b), however, but

21   on an implicit equitable power that, he argues, might be

22   inferred from a district court’s authority to adjust a

23   sentence pursuant to Guidelines § 5G1.3(b) and (c).    This


                                   4
1    argument is without merit.   As Batista readily conceded at

2    the sentencing hearing, section 5G1.3(b) does not apply

3    here.   And it is settled law in this Circuit that section

4    5G1.3(c) does not authorize a district court to credit a

5    defendant for time already served.   See United States v.

6    Fermin, 252 F.3d 102, 105 (2d Cir. 2001); see also USSG §

7    5G1.3(c), application note 3(e) (“Unlike subsection (b),

8    subsection (c) does not authorize an adjustment of the

9    sentence for the instant offense for a period of

10   imprisonment already served on the undischarged term of

11   imprisonment.”).   We find unconvincing Batista’s attempts to

12   distinguish Fermin from this case.

13       We have reviewed all of Batista’s arguments and have

14   found each of them to be without merit.   Accordingly, the

15   judgment of the district court is AFFIRMED.

16
17
18
19                                  FOR THE COURT:
20                                  Catherine O’Hagan Wolfe, Clerk
21
22
23
24
25




                                   5
