*1 finding The district court’s that Ramos affirmatively displayed accept-
had not an personal responsibility
ance of for his crim- clearly
inal conduct was not erroneous. two-point
Ramos was entitled to re-
duction in his offense level under the sen-
tencing guidelines.
V perceive ground upon no which to
We
reverse the lower court’s decision. The correctly
district court denied Ramos’ mo- suppress
tion to evidence obtained at his storage
Hawaiian Gardens apartment did not commit
area. reversible denying the motion to
error withdraw guilty pleas refusing grant or in two-point
Ramos a reduction in offense lev- acceptance responsibility
el for under sentencing guidelines. Use of the
guidelines deny process did not Ramos due
of law.
AFFIRMED. Ray THOMAS,
James
Petitioner-Appellant, BREWER, Warden, al.,
R.D. et
Respondents-Appellees.
No. 89-55498. Appeals,
United States Court of
Ninth Circuit.
Argued May and Submitted
Decided Jan.
RYMER, Judge: Circuit Ray James Thomas is a federal appeals who the district court’s denial of petition corpus. for writ of habeas He right claims the to immediate release on ground that his federal sentence has fully been served.
At the time of his on federal 4, 1964, charges August Thomas was a prisoner. He was transferred to fed- pursuant eral authorities to a writ of habe- corpus prosequendum, ad which directed the defendant’s return. After imposed committing Thomas for a di- agnostic study 4208(c), under 18 U.S.C. § he was returned to state authorities. Hav- ing sentences, served state he was released to federal authorities for commitment No- study vember 1966. The was then con- judgment ducted and a after ultimately entered for a maximum term of twenty-five years.
Thomas contends that the district court first, respects: erred in three in determin- ing that he was a state at the time second, sentencing; of his federal con- cluding that his federal sentence did not commence under 18 3568 and that U.S.C. § he was not entitled to credit toward his federal sentence from the time of his deten- wing Angeles tion in the federal of the Los County day sentencing; Jail on the third, failing recognize that he should be credited from the date he was commit- 4208(c). ted for under 18 U.S.C. § hold on the facts in case that the We this began federal sentence to run from Novem- 21, 1966, ber the date on which Thomas was released state authorities to federal Desfor, Student, Diane Law U.S.C. Law commitment, custody for and affirm. Center, Weis'selberg, D. Charles U.S.C. Center, Cal., Angeles, petition- Law Los I er-appellant. May Ray On James Libby, Atty., Jimmye John Asst. U.S. Gabriel, by the was arrested San California Warren, Atty., Angeles, Asst. U.S. Los
S. robbery Police for the armed local Cal., respondents-appellees. supermarket. in state While charge, charged Thomas was cоurt with one count of armed bank rob- 2113(a),(b). bery in of 18 violation U.S.C. § REINHARDT, LEAVY, brought Before On June RYMER, Judges. District Court Circuit before United States robbery charge pur- the sentence of Stephens on bank herein im- prose- posed subject shall suant to a writ of habeas to modification in U.S.Code, quendum issued June 1964.1 On June accordance with Title 22, 1964, 4208(b).”3 corpus ad a second writ of habeas prosequendum requiring was issued Thom- marshal, subsequent The federal *3 appearance Judge Stephens before on as’s sentencing, returned Thomas to the Los
June 1964.2 Angeles County 28, 1964, August Jail. On 4, 1964, again ap- August appeared Superi- Thomas Thomas before
On California Judge Stephens Judge for sentenc- or peared before Court Kaufman for on guilty guilty ing pleading plea deadly after one count of his to assault with time, robbery. weapon. Judge At this bank Kaufman sentenced Thom- wing being held the federal Los as to two terms to run concurrent the with Angeles County Judge The record does not each other. judgment Jail. Kaufman's reflect whether a writ was used to secure also recommended that Thomas “re- be presence in the court on leased to the Thomas’s district the Federal date, however, (custody August 1964. On this Government of the United States General).” Judge Stephens Attorney judgment Thomas “to the the committed On or- form, Attorney following рrinted or his der custody of the General the standard language “It representative for the maximum is further Ordered that authorized prescribed study for a as the defendant be into the period by law remanded custo- 18, U.S.Code, 4208(c), dy of the Director of in Title Corrections at described Chino,” study results of such to be furnished California State Prison at were whereupon typed the three months words “when available.” within warden, (c) form commanded the sher- scribed in subsection hereof. The results 1. This writ iff, study, together Angeles County any jailor Jail to of such with recommenda- or of the Los tions which the of the courthouse on Director Bureau of deliver Thomas to the federal 15, 1964, helpful would Prisons believes in determin- June case, ing disposition of the shall be fur- in order that said defendant in the above-enti- the court nished to within three months un- may arraigned case then and there be and tled time, grants less the court not to exceed an place, plea and and also enter his at said time months, study. additional three further may at court, other times as be ordered said such receiving reports After such and recommen- you and then and there this writ. have dations, (1) may the court in its discretion: delivery body Ray of said James The of the prisoner probation Place the as authorized of said United Thomas to the Courtroom title; (2) by section 3651 of this or affirm the Court, aforesaid, as and the States District imprisonment originally imposed, sentence of your by you of said defendant to custo- return imprisonment, the sentence of and or reduce dy compliance with shall be deemed sufficient any applicable commit the offender under the writ. provision of law. The term of the sentence original the date of the com- shall run from employed same second form writ This 2. mitment under this section. ap- requiring as the Thomas’s first (c) Upon commitment of a sen- pearance on June provisions under the tenced to Director, (a), such of subsection under 4208(b) (c), sections and which wеre 3. Former Attorney may pre- regulations as the General sentencing, time Thomas’s in effect scribe, complete cause a to be shall appear minor revisions as 18 U.S.C. now with prisoner and shall furnish to the made of the 4205(c) (d) pursuant to the Parole Com- together summary report Board of Parole Reorganization Act of 1976. See 1976 mission opin- any which in his with recommendations (90 Cong. & Admin.News Stat. U.S.Code 220). determining helpful suita- ion would be repealed by Public Law This section was report bility parole. This of the 98-473, section effective Nov. 1986. In may not be limited to data include but shall 4208(b) (c) provided: prisoner’s previous delinquency regarding experience, pertinent (b) circum- criminal If desires more detailed infor- or the court background, capabili- determining stances of his social ties, a basis for the sen- mation as health, physical may and such imposed, his mental to be the court commit tence pertinent. may as be considered other factors the defendant to the General, may such other The Board of Parole make shall be deemed which commitment necessary. may imprison- investigation deem as it the maximum sentence of to be for law, Cong. & Admin.News 992. prescribed by de- 1958 U.S.Code for a ment Thomas was then spent prison returned to the custo- in state from dy Angeles County оf the Los Sheriff. On to 1966. He alleged November also 11, 1965, February appeared be- that due to the miscalculation of his sen- Superior fore Court Noble after tence, being beyond expira- he was held pleading guilty charge kidnapping to a tion of his term. purpose for the robbery. Judge Noble Magistrate’s report and recommen- sentenced Thomas “for term of his February dation was filed on 1989. The life,
natural
which sentence is ordered to
adopted
Report
district court
and Rec-
concurrently
any
run
being
with
Magistrate
ommendation of the
and denied
served.” Thomas was then taken to the
petition
Thomas’s
on March
1989. The
Institution,
Cаlifornia State
Chino on Feb- Magistrate’s Report determined that since
ruary
*4
custody
Thomas was not in the
of the Unit-
23, 1966,
On November
Thomas was re-
23, 1966,
ed States until November
Thom-
turned to U.S. marshals to enable concur-
correctly
as’s sentence was
calculated.
rent service of Thomas’s federal and state
Magistrate
The
did not address Thomas’s
terms.
an
in
On
unknown date December
argument that his sentence commenced on
1966, Thomas
was delivered
the Federal
4,
August
language
1964 based on the
of
Institute,
California,
Lompoc,
Correctional
18 U.S.C.
3568 and former 18 U.S.C.
by Judge
where the
ordered
Ste-
4208.
4, 1964,
phens August
on
was commenced.
28,1989,
April
timely
On
Thomas
filed an
completion
study,
After
of the three-month
appeal to this court.
placed
Thomas was
in an “Out-to-Court”
7,
April
status on
1967 for return to the
II
district court for
determination of his
grant
The district court’s decision to
21, 1967,
September
sentence. On
deny
petition
corpus
or
for habeas
“Judgment
Stephens entered a
After
reviewed de novo.
v.
United States
Po
Study,” affirming
imprison-
the sentence of
811,
(9th
poola,
Cir.1989);
twenty-five
ment for the maximum term of
1178,
Risley,
v.
Norris
F.2d
4,1964.
originally
August
years
imposed on
Cir.1989).
necessary
To the extent it is
Thomas
then returned to the Federal
fact,
findings
clearly
review
errone
Lompoc.
Correctional Institution in
On
Norris,
applies.
ous standard
On habeas corpus pau- appears from the entire record for a writ of habeas forma ed that “[i]t court, peris pursuant petitioner in the district to 28 that fact 1915(a). Angeles County sought Thomas credit to- in the of the Los U.S.C. § brought time he he was out for ward his federаl sentence for the Sheriff at time purpose appearances of his in federal by you the return said defendant court ... at the time he received his to your custody shall be deemed [and] suffi- federal sentence.” Thomas compliance contends cient with the writ.” [empha- clearly this conclusion is erroneous. sis provided Because the writ added]. appearance Thomas’s “at such other times by state Thomas was first arrested may court,” as. be ordered pro- 10,1964. general May on As a authorities vided custody, for his return to state rule, sovereign the first a defen to arrest logical most inference is that Thomas was trial, рriority jurisdiction for dant has ordered at appearance his June sentencing, and incarceration. See United return for sentencing August Warren, 684-85 States simply that Thomas was retained in federal (9th Cir.1980). custody, in state While custody pursuant to the June 1964 writ however, charged in August until and that after sentencing robbery. appeared court with bank He Thomas was returned to state custody, federal court on June 15 June required by the writ. pursuant specific writs of habeas prosequendum. responds record does not Judge Stephens’ reveal a writ for the date initial sentencing similar order time committed at which Thomas received an him to the of the United *5 initial, General, tentative sentence States Attorney under 18 U.S.C. without acknowl- Thomas subsequently edging any qualifications 4208. was sen on the Attorney 28, August tenced state court on 1964 ability jurisdiction General’s to assert over 11, Thomas, February on 1965. He was re as would be the case if Thomas Therefore, leased to United States Marshals on No were in custody. sug- he 23, 1966, gests vember and taken to the federal that he already was in federal custo- penitentiary Lompoc dy at in December of at that time. 21, year. September that On Thomas “Judgment Study” The After issued court, Judge Stephens’ returned
was to at Judge Stephens 21, 1967, September on following which time his final sentence hоwever, nothing suggest contains to that imposed. was the court found the return of the argues Thomas that were because writs the defendant to his court for final sentenc- after, prior appearances, ing years obtained for his two three August the initial August appear- sentencing absence of a writ for his appearance, to be unusual improper. Judge Stephens ance demonstrates that a writ was unnec- or Nor did or- essary. only reason that a would der that writ be credited with the time Thomas unnecessary, suggests, he custody. Presumably, be served in state because had relinquished jurisdic- state authorities had Thomas’s transfer from his federal sen- him tencing tion over to federal authorities and he to state been inconsistent already custody. order, was in federal August with the court’s. Judge Stephens would have noted it at this disagree. prose- We The second writ ad time. quendum, 22, 1964, issued June and com-
manding Thomas’s
on June
appearance
Thomas further contends that
the lan-
appearance
August
guage
also authorized his
on
and intentions of the state sentenc-
ing judges
This writ
commanded that Thom-
also reveals that he was in
produced
First,
“in
custody August
as be
order that said defen-
federal
on
may
argues
dant in the above-entitled case
he
Judge
then
that
Kaufman’s recom-
arraigned
plea
and there be
and enter his
mendation that “the defendant be released
place,
at said time and
to the custody
also at such
of the Federal Government
may
(custody
Attorney
other times as
be
ordered
said
the United States
[emphasis
General),”
pro-
implicitly recognizes
court.”
It further
that Thom-
added].
delivery
body
vided that
of the
at the time of his
federal
“[t]he
Ray
sentencing
an intent to
said James
Thomas
the courtroom state
and shows
impose
of said United States District Court
...
a state sentence concurrent with
Second,
sug-
the federal
Thomas
eral
on
1964 was
sentence.
clearly erroneous.
gests
Judge
Kaufman’s оrder that
prison
the state
Thomas be committed to
B-
that he
“when available” establishes
immediately
his state
available
serve
that,
ap
even if his
time,
must
sentence at that
and therefore
sentencing August
pearance for
Finally,
prisoner.
a federal
have been
4, 1964,
pursuant to a writ of habeas
were
to time to
Judge Noble sentenced Thomas
prosequendum,
legal
no
rule re
any
“concurrently with
be served
quired his return to state court immediate
reveals, according
Thom-
being
served”
Instead,
suggests
ly
sentencing.
after
he
as,
of the federal sentence
an awareness
prison
that if state
authorities surrender
running.
impede
intent not to
its
authorities,
and an
thereby
er to federal
the state
grants
jurisdiction
the federal authorities
unpersuasive.
suggestions
These
are
judg
“try
and to render
[defendant]
Judge
recommended
Kaufman’s order
him
imprisonment against
ment of
and to
“that defendant
released to the
be
judgment.” Stamphill
execute that
v.
(custody of the
of the Federal Government
(9th Cir.),
Johnston, 136 F.2d
cert.
General).”
Had
United States
denied,
L.Ed.
320 U.S.
64 S.Ct.
in federal
at that
Thomas been
Thus,
(1943).
presence
“physical
time,
need-
Judge Kaufman would not have
gives
a District Court
a defendant before
that he
released to the
ed to recommend
him,
complete jurisdiction
that court
over
Furthermore,
government.
regardless
presence
of how his
was secured
“that
reason that
Kaufman ordered
292;
also United
Id.
see
of the
the defendant be
Warren,
States
Angeles,
County
of Los
to be
Sheriff
Cir.1980);
Zammiello,
United States v.
*6
by
custody
him
into the
of the
delivered
(9th Cir.1970);
Smith
at the California
Director of Corrections
(9th
1937).
Swope,
F.2d 260
Cir.
available,”
Chino;
when
State Prison
correctly
Although Thomas
states
that Thomas was next to be sentenced
was
rule,
dispositive in
general
it is not
this
Noble,
Judge
and not because
before
question
whether the
case where the
is not
custody at
that
Thomas was in federal
properly
juris
exercised
federal authorities
The wоrds “when available” are not
time.
prisoner
physi
in their
diction over a state
form,
because that
typed on
Noble’s
authori
possession,
cal
but whether state
sentencing
pending
all
order
resolved
by
jurisdiction
their
trans
ties abandoned
charges.
Judge Noble therefore ordered
prisoners pursuant to a
ferring one of their
to the
of the
Thomas remanded
prosequendum such that he became
writ ad
Angeles, to
County
of the
of Los
Sheriff
prisoner
point
that
forward.
a federal
from
custody of the Director of
delivered to the
Rather,
by
governed
this case is
Gunton v.
at Chino.
Corrections
(9th Cir.1950)
and
Squier, 185 F.2d
by
is reinforced
the Sen-
This conclusion
Madigan,
found that he was directing аn officer to commit a federal facility. tation to a federal to the of the Attorney clearly in The district court did not err diagnostic study, General for or other- in finding that Thomas was not held the wise, the officer’s failure to act in accord- county jail transport for to a federal facili- ance with that order cannot “charged up ty. pursuant He was there writ against prisoner.” See Smith corpus prosequendum plea ad for habeas Swope, (9th Cir.1937). We proceedings and further in connection with held in that Smith it, awaiting return to state authorities is entitled to serve his time sentencing on his state convictions. promptly if judgment such is the im- that, alsо under the terms posed, and he must be deemed to be sentence, he trans- of his should have been serving it from the date he is ordered to ported facility to a federal than re- rather serve it and is in the custody, that the mar- turned to state but commitment, if, marshal under the with- shals made a mistake. Kiendra v. See fault, neglects out his the marshal Cir.1985). Hadden, (2d place him in proper custody. There is no substantial evidence of error. Id. The court credited the defen- Smith event, held, any In as we have dant’s federal sentence with the entire time authorities fol- properly returned to state marshal, prison served in state because lowing his 1964 federal in contravention the federal commitment appearance, compliance in with the second order, prematurely turned him over to the corpus prosequendum. writ of habeas state authorities. Therefore, under the terms of section begun Here, Thomas’s sentence could not have the district court’s or- run until he was released state authori- der stated the federal for commit-
ties to authorities adjudged is that the defendant here- “[i]t in ment November 1966. is committed to the ... General The district court’s denial of Thomas’s period prescribed by for the maximum petition for writ of habeas ..., for a the results of such law AFFIRMED. this court within study to be furnished whereupon the sentence of three months REINHARDT, Judge, Circuit imposed imprisonment herein shall be concurring part dissenting part. in in in accordance subject to modification Although agree majori- I do not with the 18, U.S.Code, 4208(b).” section with Title reasoning, judg- I ty opinion’s concur its order does not While the district court’s ment to the extent that it concludes at which the explicitly set forth the time Thomas is not entitled to credit for the the Attor marshal shall commit Thomas to year-3 period month he served entire two I ney custody, General’s think court’s prison following imposition dispute. beyond intent is clear The deliv I the initial federal sentence. dissent ery made at the еarliest time the opinion was to be part majority fails to because *9 necessary implement marshal could the give Thomas credit for the three month physical arrangements. I find it difficult period he should have been in federal cus- McPike, penitentiary”); eral Zerbst v. to Federal and received at the Federal 1938) (under penal predecessor institution for service of his Federal sen- to Cir. tence"); Squier, Gunton v. begin to run "federal sentence could (9th Cir.1950) ("his not Federal sentence could only is defendant] from 'the date on which [the to and re- start to run until he was delivered reformatory jail penitentiary, or received at the plаce ceived the United States Marshal the ”). of said sentence’ for service transportation Fed- of detention to await to the that, choice, given to believe a a district grant would him period prior credit for the judge would diagnostic direct that a study to his return to scheduled federal court for not be years conducted until several after However, final sentencing. such following it, he has asked for or that he would ordi sentencing final a final order of commit- narily delay imposing want to a sentence ment would have issued and under applica- an years for undetermined number of while ble law the marshal would have re- been the defendant serves a state sentence. quired to return Thomas to the custody of Given the numerous criminal cases con Thus, the state. he is entitled to credit fronting judge a district difficulty any portion for of the time he serving recalling significant all of the events his state sentence than the other three trial, during that occur a it is far more months that should have served as the likely judge that a district order that would study period. Accordingly, Thomas’s man- diagnostic study be conducted at the datory January release date should be possible following earliest date initial sen April rather than tencing so that he impose could a final This in derogation conclusion is not within a reasonable time after the any State interest. The State surrendered plea of the or conclusion trial.1 authorities for sentenc- Moreover, the district ing proceedings, which included determina- appears order require Attorney court tion of a final sentence. majority As the General, representative, or his authorized notes, the diagnostic study results of the furnish the study results of within necessary are to transform a “wholly ten- days of the date on which the order was tative” sentence into a final one. More- issued. The order does not state that the over, no case law in this circuit undermines study may be conducted days within 90 this conclusion. Neither Gunton nor Lat- whenever Thomas is actually delivered to ios, example, for questions addresses the Rather,- Attorney General. it states presented by this case—whether the dis- that the results shall be to the furnished trict completed had court its within 3 ordinary court months. An read- proceedings and whether the district court ing of such an order lead would one to intended to return Thomas to the state that the conclude results shall furnished prior authorities to final sentencing. within 3 months of the date the order was light In foregoing, of the I respectfully issued.2 in part majority dissent from the judgment. correct, If I am erred in marshall returning Thomas to the state аuthorities committing
rather than in him to the custo-
dy period of the General for the
required study. to conduct the The mar-
shal’s error cannot override district order to the
court’s of the defen- detriment Smith, supra.
dant. See
Thus, Thomas is entitled to credit for the period
three month he have been in should diagnostic a while
study being prepared. holding Such quoted appears 1. The order above to be form three months unless the court within especially time, order rather than one tailored grants not to exceed an additional three circumstances Thomas's months, case. study.” Any further for concern reading may of the statute shorten the actu- Similarly, statutory language of U.S.C. conducting study al time for available appears diag- section mandate that the may alleviated the fact that the court extend days nostic be conducted within period up to three additional date which the trial court enters the tentative months. provides sentence. Section 4208 re- "[t]he *10 ... shall sults furnished