             United States Court of Appeals
                        For the First Circuit

No. 06-2444

                       UNITED STATES OF AMERICA,

                              Appellant,

                                  v.

                 RANDOLPH MILLS, a/k/a DASHE BECKFORD,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                Before

                       Torruella, Circuit Judge,

                 John R. Gibson, Senior Circuit Judge*

                      and Lipez, Circuit Judge.


     Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on brief
for appellant.
     John S. Ferrara, with whom Dalsey, Ferrara, & Albano, was on
brief for appellee.



                            August 30, 2007



     *
         Of the Eighth Circuit, sitting by designation.
            JOHN R. GIBSON, Circuit Judge.          Randolph Mills pleaded

guilty to one count of illegal reentry of a removed alien, in

violation of 8 U.S.C. § 1326.          The presentence report computed a

total offense level of seventeen and a criminal history category of

I.   The resulting guideline imprisonment range was twenty-four to

thirty months.    The district court sentenced Mills to two years'

probation and a $100 special assessment.               The government now

appeals.    We vacate Mills's sentence and remand for resentencing.

            Randolph Mills was born in Kingston, Jamaica. He entered

the United States legally and became a lawful permanent resident,

but the State of Connecticut sentenced him to a five year term of

imprisonment following a conviction on drug charges.                The State

suspended    Mills's   term    of    imprisonment   after   one   year.   The

government    placed   Mills    in    removal   proceedings   following   his

release and deported him to Jamaica on January 9, 1999.               On July

29, 2004, Mills was arrested in Greenfield, Massachusetts, for

firearm and drug offenses under the name of "Dashe Andre Beckford."

The State released Mills on bail but he failed to appear for

subsequent court appearances, and the State issued a warrant for

his arrest.    The State arrested Mills per the warrant on March 2,

2005, and determined that he was the same individual who had been

deported in 1999.      After his arrest on March 2, the State retained

custody of Mills.

            On April 14, 2005, the government charged Mills with


                                       -2-
illegal reentry of a removed alien in violation of 8 U.S.C. § 1326.

Mills made an initial appearance before the United States District

Court for the District of Massachusetts on May 6, 2005, pursuant to

a writ of habeas corpus ad prosequendum.              The presiding magistrate

judge granted the government's motion for detention.                         Federal

authorities, however, did not detain Mills at that time, but

instead    returned     him    to   state   custody   pursuant    to    the    state

charges.      Mills pleaded guilty to the federal offense on May 11,

2006, and the district court sentenced him to probation on August

16, 2006.       During the sentencing hearing, the district court

expressed particular concern with the amount of time Mills had

spent in custody and the possibility of Mills receiving credit for

that time.       The district court noted that Mills had been in

detention for the seventeen months following his arrest on March 2,

2005.      The government objected that the seventeen months was

irrelevant because it was on unrelated state charges. The district

court then decided to sentence Mills to probation instead of time

served so as to avoid "getting into whether time served is an

appropriate sentence or not."

              On September 28, 2006, Mills pleaded guilty to the state

drug    and    weapon    charges      and     was   sentenced    to    365    days'

imprisonment.     He received a credit of 365 days for time served and

immediately      entered      the   custody    of   Immigration       and    Customs

Enforcement where he currently remains. The government now appeals


                                        -3-
the sentence given by the district court.

           We review the district court's sentence under the now

advisory guidelines for reasonableness.   Rita v. United States, __

U.S. __, 127 S. Ct. 2456, 2459 (2007); United States v. Booker, 543

U.S. 220, 260-63 (2005).   The government argues that the district

court erred in concluding that the State of Massachusetts was

holding Mills pursuant to the federal charges. We review for clear

error a district court's factual findings relevant to a sentencing

calculation.   United States v. Goodhue, 486 F.3d 52, 55 (1st Cir.

2007).   "[A] sentence will be vacated as unreasonable under Booker

if it is predicated on a clearly erroneous view of material facts."

United States v. Robinson, 433 F.3d 31, 38 (1st Cir. 2005).

           In this case, it is apparent that the district court's

decision to sentence Mills to probation was predicated on an

erroneous finding that Mills had been imprisoned on federal charges

while in state custody before trial.      Examining the sentencing

transcript and the statement of reasons, we observe that the

district court was under the impression that Mills was in custody

on the basis of the federal charge, illegal reentry of a removed

alien.   First, Mills's counsel notified the district court during

the sentencing hearing that Mills had been held on the order of

detention since May 6, 2005.    The district court then responded

with concern that Mills "has been in jail for fifteen months."

Later, the district court concluded that probation was appropriate


                                -4-
because Mills had "served enough on the charge before me" (emphasis

added).     The district court then emphasized that everyone should

"understand the reason" for the sentence imposed, namely that "I

think he has served enough time on this charge" (emphasis added).

Finally, in its statement of reasons, the district court explained

that it was sentencing Mills outside the advisory guideline system

because Mills had "already served enough time in prison on these

charges, but in state custody" (emphasis added).

            Contrary to the district court's assertions, however, it

is evident that the presentence report, to which neither party

objected, plainly states that Mills was being held pursuant to

unrelated state charges.     The district court, moreover, gave no

indication why it was disregarding the presentence report.    While

Mills did appear before the district court on several occasions,

those appearances did not change his custody status. See Sinito v.

Kindt, 954 F.2d 467, 470 (7th Cir. 1992) (per curiam) (holding that

"[t]he issuance of the writ of habeas corpus ad prosequendum did

not alter [the prisoner's] custody status").   Since credit for 365

days that Mills was in state custody was properly applied to the

eventual guilty plea on separate state charges, Mills is not

entitled to have that time also credited towards his federal

sentence.    See United States v. Wilson, 503 U.S. 329, 334 (1992);

18 U.S.C. § 3585(b)(2).

            Mills argues that because the government obtained a


                                 -5-
detainer against Mills while he was in state custody, the time

served should apply to the federal sentence.1          This argument is

unpersuasive.    It is well-established that when a federal detainer

is irrelevant to custody in relation to a state offense, credit is

not available.    See Bloomgren v. Belaski, 948 F.2d 688, 690 (10th

Cir. 1991) (noting that when a federal detainer is unrelated to a

state prisoner's continued custody, credit is not available for the

federal   sentence).    In   this   case,   Mills   offers   no   argument

contradicting the presentence report's statement regarding the

reason for Mills's state custody. We have no reason, therefore, to

conclude that the federal detainer was the sole reason for Mills's

continuing custody.

           Finally, we have some concern regarding the district

court's decision to sentence Mills to probation in consideration of

his seventeen month detention with state authorities.        The Supreme

Court has plainly stated that 18 U.S.C. § 3585(b)(2) "does not

authorize a district court to compute the credit at sentencing."

Wilson, 503 U.S. at 334. The district court, therefore, should not

have taken into account Mills's custody in its sentencing decision,



     1
      Mills cites the Supreme Court's decision in Reno v. Koray,
515 U.S. 50 (1995), in his argument that the federal detainer
qualifies him for credit towards his sentence. Mills's reliance is
misplaced. The Court in Koray held that time spent in a community
treatment center did not qualify as official detention for
crediting purposes. The decision does not address whether time
spent in detention on state charges can also qualify a prisoner for
credit on federal charges.

                                    -6-
but   should    have    instead   left    the    determination       of   Mills's

eligibility for credit for time served to the Attorney General and

the   Bureau   of    Prisons.      The    fact   that    the    district    court

technically refrained from sentencing Mills to "time served" is

insufficient to cure the district court's error under Wilson.

            We conclude that the district court's consideration of

Mills's    custody     on   unrelated    state   charges       at   the   time   of

sentencing     was   clearly    erroneous.2      We     therefore    vacate      the

sentence imposed and remand for resentencing consistent with this

opinion.     In light of our holding, Mills's pending motions are

denied.




      2
      Because we determine that Mills's sentence must be remanded
due to the district court's consideration of an erroneous factual
conclusion, we express no opinion as to the government's argument
that a sentence of two years of probation would be substantively
unreasonable on the facts of this case.

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