United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
matter is before the Court on Mr. Marker's Motion for
Credit for Prior Custody, filed on July 17, 2017, as
supplemented by the Supplemental Motion, filed on September
7, 2017. (Docs. 90, 95.) Mr. Marker is incarcerated and
appears pro se. He asks the Court to credit the time he spent
in presentence confinement between August 17, 2012, and
October 14, 2014, to his federal sentence. (See Doc.
95.) For the reasons discussed below, the Court denies Mr.
August 15, 2012, Defendant was indicted on charges of
conspiracy and possession with intent to distribute 5 grams
and more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846, and 18 U.S.C.
§ 2. (See Doc. 2.) On that date, Defendant was
in the custody of the state of New Mexico on unrelated
charges. (See Doc. 5.) On August 16, 2012, the Court
granted the Government's Motion for Writ of Habeas Corpus
Ad Prosequendum and directed the Administrator of the Lincoln
County Detention Center, the facility where Defendant was
being held, to surrender Defendant to the United States
Marshal Service for prosecution in the federal case.
(See Doc. 6.) The Court further ordered that
"the United States Marshal Service is authorized to
return Defendant to the custody [from] whence he came during
the pendency of this action when his presence is not
needed." (Id. at 1.) The docket lists
Defendant's arrest date as August 17, 2012. (See
Aug. 17, 2012 CM/ECF text entry.)
pleaded guilty and entered into a plea agreement with the
United States on January 13, 2013. (Doc. 44.) On October 14,
2014, the Court sentenced Defendant to 70 months'
imprisonment, the term to run concurrently with the
Defendant's state sentence, followed by four years'
supervised release. (Doc. 85.) At the sentencing hearing,
Defendant's counsel mentioned that "Mr. Marker has
been in custody since August 17th of 2012, " and while
the Presentence Report was an older version and "gave
him custody up to January 17th, " 2014, Defendant had
"been in continuous custody since that time." (Doc.
98 at 12:4-8.) The Court responded that Defendant was
"entitled to full credit for all of [the] pre-sentence
confinement time against. . . the sentence . . . just
imposed." (Id. at 12:9-11.)
now asks the Court "to correct a clerical error in its
judgment filed October 14, 2014, " to clarify that the
beginning of his sentence actually began on August 17, 2012,
the date Defendant was arrested. (See Doc. 95 at 1.)
Court will deny Defendant's Motion for at least three
reasons. First, this Court "does not have inherent
authority to modify a previously imposed sentence; it may do
so only pursuant to statutory authorization." United
States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997)
(citing United States v. Blackwell, 81 F.3d 945,
947-48, 949 (10th Cir. 1996) (applying 18 U.S.C. §
3582(c))). Defendant offers no statutory authority for the
Court to modify his sentence. (See Doc. 95.)
Defendant moves the Court to correct his sentence pursuant to
Rule 36 of the Federal Rules of Criminal Procedure.
(See Doc. 95 at 1.) Rule 36 provides that
"[a]fter giving any notice it considers appropriate, the
court may at any time correct a clerical error in a judgment,
order, or other part of the record, or correct an error in
the record arising from oversight or omission." Fed. R.
Crim. P. 36. Defendant's sentence, however, does not
suffer from any clerical error.
believes his sentence commenced on the date of his arrest:
August 17, 2012. Pursuant to statute, however, "[a]
sentence to a term of imprisonment commences on the date the
defendant is received in custody awaiting transportation to,
or arrives voluntarily to commence service of sentence at,
the official detention facility at which the sentence is to
be served." 18 U.S.C. § 3585(a). "A federal
sentence does not commence until a prisoner is actually
received into federal custody for that purpose."
Binfordv. United States, 436 F.3d 1252, 1255 (10th
Cir. 2006). According to the Writ of Habeas Corpus Ad
Prosequendum, when Defendant was not defending his federal
case, he was transferred back to the custody of the Lincoln
County Detention Center-a state facility. And even though
Defendant was produced to the United States Marshal Service
for certain hearings in his federal case, New Mexico
"state officials did not relinquish jurisdiction
over" him at those times, "he continued to be a
'state prisoner."' Hernandez v. U.S.
Att'y Gen., 689 F.2d 915, 918 (10th Cir. 1982)
(citations omitted). Thus, Defendant was not "received
into federal custody" until after his sentencing
hearing. (See Doc. 85 at 2 (committing Defendant
"to the custody of the United States Bureau of
Prisons").) See also Binford, 436 F.3d at 1256
(finding that the defendant's "federal sentence
never began until he was finally received into federal
custody for the purpose of serving his federal sentence,
after completing his state sentence" at a state
facility) (citations omitted).
"even if the Court were to grant credit for prior
custody against the term of imprisonment, Defendant's
post-conviction custodian-the Attorney General or Bureau of
Prisons ('BOP')-would not be bound by the
calculation." United States v. Anguiano,
12-CR-0529 JP, Mem. Opinion & Order at *2 (D.N.M. Aug. 3,
2015). "The Attorney General, through the BOP, has the
responsibility of administering a federal sentence, including
computation of credit for pretrial incarceration."
Id. (citing United States v. Jenkins, 38
F.3d 1143, 1144 (10th Cir. 1994) ("only the Attorney
General through the Bureau of Prisons has the power to grant
sentence credit") (citing United States v.
Wilson, 503 U.S. 329, 333, 337 (1992))). Defendant may
seek judicial review of the BOP's computation of his
presentence credit only after exhausting his administrative
remedies. Wilson, 503 U.S. at 335-36 (citations
omitted). There is no evidence Defendant has exhausted his
administrative remedies, so this Court is without
jurisdiction to grant relief.
THEREFORE ORDERED that Plaintiffs Motion for Credit for Prior
Custody, filed on July 17, 2017, as supplemented by the
Supplemental Motion, filed on September 7, 2017 (Docs. 90,
95) is DENIED.