United States District Court, D. New Mexico
C. Anderson United States Attorney Joseph M. Spindle
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the Plaintiff.
W. Moss Law Offices of Nicole W. Moss, LLC Albuquerque, New
Mexico Attorney for the Defendant.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Mr. Garcia's
Sentencing Memorandum and Objections to Pre-Sentence Report,
filed December 2, 2019 (Doc. 35)(“Objections”).
The primary issue is whether Defendant Clarence Garcia is
entitled to credit for the time he has spent in federal
custody. See Objections at 2-3. Although the Court
has no authority to direct the United States Bureau of
Prisons (“BOP”) how to calculate Garcia's
credit for time he served in federal custody, the Court will
make sure that the face page of the Pre-Sentence
Investigation Report, filed November 18, 2019 (Doc.
31)(“PSR”), reflects accurately how long Garcia
has been in custody and will hear arguments at the sentencing
hearing on Garcia's objection and variance request before
it issues his sentence.
September 13, 2019, Garcia pled guilty to a one-count
information alleging Abusive Sexual Contact in violation of
18 U.S.C. §§ 1553 and 2244(a)(5). See PSR
at 4. Although the Guidelines recommend a sentence of life
imprisonment for this offense, the United States, pursuant to
a written plea agreement and rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure, agrees that a sentence of 120 to
180 months is appropriate. See PSR at 4.
was previously convicted in Santo Domingo Pueblo Tribal Court
of charges relating to this case on March 12, 2014, for which
he was sentenced to three years of incarceration.
See PSR at 1. Garcia was released from tribal prison
on March 12, 2017. See PSR at 1. On March 28, 2019,
a writ of habeas corpus ad prosequendum was issued for
Garcia, who was then in the New Mexico Corrections
Department's custody on charges unrelated to this case.
See PSR at 1-2. Garcia says that he “was
serving an 18-month (542 days) sentence in the New Mexico
Department of Corrections for [Aggravated Indecent Exposure]
when he was brought into federal custody on the instant
matter on April 3, 2019.” Objections at 3. In the PSR,
the United States Probation Office (“USPO”)
identifies that, “[p]ursuant to U.S.S.G. § 5k2.23,
a downward departure may be appropriate to account for the
defendant's time in [tribal] custody.” PSR at 1.
The PSR asserts, however, that because Garcia is
“currently receiving custodial credit toward another
sentence, . . . he will receive no credit for time in custody
for the instant offense.” PSR at 2.
Objections, Garcia asserts that he began his State sentence
on October 9, 2018, “at which time Mr. Garcia was also
awarded 149 days of pre-sentence confinement credit,
resulting in a final sentence of 393 days.” Objections
at 3. Garcia says that the charge for which he was sentenced
“allows for up to 50% earned meritorious deductions
good time.” Objections at 3. Garcia avers that, with
this reduction, he would have been released from State
custody on April 24, 2019; without the reduction, he would
have been released on November 6, 2019. See
Objections at 3. “Therefore, ” Garcia asserts
that he should receive credit towards his federal sentence.
Objections at 3. Garcia argues that, “[b]ut for Mr.
Garcia's detention on [the federal charges], he would
have been released from custody” in April, 2019.
Objections at 3. Garcia accordingly “requests a
variance of eight months to credit him for the time he has
spent in federal custody but that he will not receive credit
for because he is being held on a writ from State
custody.” Objections at 3. The United States does not
respond to Garcia's argument on this point.
Garcia presents his argument as an objection to the PSR, the
Court construes his argument as a request for a variance.
See Objections at 3 (requesting “a variance of
eight months”). The USPO responds with its Addendum to
the Presentence Report, filed December 17, 2019 (Doc.
37)(“Addendum”). In the Addendum, the USPO notes
that the BOP ultimately calculates credit for time served.
See Addendum at 1. The USPO relates, however, that
it contacted the New Mexico Department of Corrections, which
[Garcia] is on in-house parole currently as of 5/26/2019;
however, he has not earned any goodtime since April 2, 2019,
due to the fact that he is out with the Marshals. . . . [S]o
as of right now he will discharge on 5/26/2020 unless he
returns to our custody and starts earning goodtime.
Addendum at 1.
Court has no authority to instruct the BOP how to calculate
Garcia's time-served credit. 18 U.S.C. § 3585(b)
provides that a defendant “shall be given credit toward
the service of a term of imprisonment for any time he has
spent in official detention prior to the date the sentence
commences.” Section 3585(b) also provides that this
time served credit must not have been “credited against
another sentence.” 18 U.S.C. § 3585(b). The
Supreme Court of the United States of America held, in
United States v. Wilson, that a district court may
not award credit at sentencing, because “Congress has
indicated that computation of the credit must occur after the
defendant begins his sentence.” 503 U.S. 329, 333
(1992). Accord United States v. Glaze, 132 F.3d 43,
1997 WL 774787, at *1-2 (10th Cir. 1997)(unpublished table
decision)(“On appeal, Mr. Glaze argues that in light of
18 U.S.C. § 3585(b), the district court erred in
refusing to award him credit for time served in detention. .
. . [I]t was entirely proper for the district court, at
sentencing, to decline to award Mr. Glaze credit for time
served and to leave that determination to the Bureau of
Prisons.”)(citing United States v. Wilson, 503
U.S. at 333); United States v. Rodriguez, 2011 WL
6831907, at *7 (D.N.M. Dec. 28, 2011)(Browning,
J.)(“The Court has no authority to tell the BOP how to
calculate Rodriguez' credit for the time he has served in
state custody, but will make sure that the cover page to the
PSR accurately reflects the time he has served.”).
Although the Court has no authority to advise the BOP how to
calculate Garcia's credit for the time he has served in
state custody, the Court will make sure that the PSR's
face page is accurate and will consider Garcia's
objection and variance request when it determines his
sentence for this offense.
in cases where a defendant has completed serving a term of
imprisonment, but in which U.S.S.G. § 5G1.3(b) would
have applied had the defendant's term been undischarged
at the time of his federal sentencing, the Guidelines
authorize a court to fashion a downward departure to achieve
a reasonable sentence. See U.S.S.G. § 5K2.23.
To come under the auspices of § 5G1.3(b), a
defendant's earlier imprisonment must have been for
conduct relevant to the federal offense with which he is
charged and that conduct must be the basis for an increase in
sentencing level with respect to the federal offense. Here,
Garcia's earlier imprisonment at the Santo Domingo Pueblo
is related to this case, but that conduct was not a basis for
an increase in Garcia's sentencing level for this case.
See PSR at 12. The Court will, however, consider
carefully Garcia's objection and variance request in
light of his earlier imprisonment, along with the §
3553(a) sentencing objectives, when it determines his
sentence for this offense.
IS ORDERED that Mr. Garcia's Sentencing
Memorandum and Objections to Pre-Sentence Report, filed