In this case we are asked to decide whether the district court appropriately departed from the Sentencing Guidelines to account for a criminal defendant’s loss of opportunity to serve concurrent sen
BACKGROUND
In 1991, Juan Francisco Los Santos, a citizen of the Dominican Republic, illegally entered the United States. Within four years of his illicit arrival here, he was convicted in a New York State court of three felony narcotics charges and one count of Third Degree Criminal Possessiоn of a Weapon, for which he was incarcerated and placed on a term of parole for life. The Immigration and Naturalization Service (INS) deported Los Santos in 1998.
Despite his expulsion from the United States, Los Santos once again found himself under arrest in New York on October 13,1999. Using the аlias “Omar Vasquez,” Los Santos was charged with possession of stolen property and unauthorized use of a motor vehicle. Although New York issued a warrant for Los Santos for violating his parole, the underlying charges that formed the basis of the violation were dropped.
On December 6, 1999, during a routine sсreening of inmates at the Ulster Correctional Facility in New York, INS discovered Los Santos’ illegal presence in this country after deportation. Fingerprint comparisons on March 14, 2000 confirmed that he was the same person deported just a year earlier, and the INS took custody of him for removal proceedings on March 21, 2000. On April 6, 2000, Los Santos was indicted for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Los Santos pleaded guilty to the indictment on July 5, 2000.
At sentencing, Los Santos requested that the district court depart from the guideline range under U.S.S.G. § 5K2.0 to give Los Santos credit for the periоd between his arrest and the date of the indictment. Los Santos argued below, as he does here, that the government had delayed his prosecution until after his release from state custody. According to Los Santos, this delay deprived him of the opportunity to receive a federal sentenсe concurrent with the state sentence for his parole violation. As would be expected, the government opposed the departure.
The district court agreed with Los Santos. The court below granted him a downward departure of fourteen months, which credited him with the entire period of his custody from the date of his state arrest in New York City until his federal sentencing. Los Santos was thus sentenced to a term of 56 months imprisonment, which reflected a fourteen-month downward departure from the bottom of the guideline range of 70 to 87 months. The incarceration was to be followed by a three-year term of supervised release. The government now seeks to have this Court reverse the district court’s downward departure. For the reasons discussed below, we vacate the district court’s ruling and remand for new sentencing.
DISCUSSION
A- sentencing judge’s decision to depart downward from the sentencing guideline range is reviewed by this Court for an abuse of discretion. Koon v. United States,
INS became aware of Los Santos’ presence in this country while he was in a state custodial drug treatment program, on December 6, 1999. Los Santos was scheduled to be released from this program sometime between March 21 and June 13, 2000. On the very day that Los Santos was first eligible for release from state custody, March 21, the federal authorities toоk custody of him. The federal indictment did not follow until April 6, 2000.
The district court found that there was a “missed opportunity” for a concurrent sentence by the government’s delay in prosecuting Los Santos, and therefore departed from the guideline range in order to “credit” Los Santos for the time he served in state custody. Although the district court failed to fully elaborate on its rationale, presumably it was guided, at least in part, by U.S.S.G. § 5G1.3. Subsection (b) states that “If ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offеnse, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” U.S.S.G. § 5G1.3(b) (2000). In United States v. Fermín,
The fallback position is provided by subsection (c), which would apply in Los Santos’ case. Under that subsection, the district court could have imposed a concurrent sentence “to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c). Although it now is settled that subsection (c) does not allow for “crediting” for time served in the same fashion that subsection (b) does, we have not yet squarely decided whether it is appropriate for a district court to depart because the government’s delay in prosecution deprived the defendant of an opportunity for a concurrent sentence under subsection (c). See Fermin,
The district court did indicate that it would have imposed a concurrent sentence if Los Santos had not already served the balance of his state time. That is, had Los Santos been indicted and pleaded guilty while still serving state time, the district court would have imposed a sentence to run concurrently with the state time remaining. Because the federal government waited until Los Santos was discharged from state custody to indict him, the district court seems to have found Los Santos lost his opportunity to receive a concurrent sentence, which took his case out of the heartland. The district court sought to apply a remedy that encompassed the period beginning on the dаte of Los Santos’ arrest by officers of the New York City Police Department (N.Y.PD) on October 13, 1999, which resulted in a departure of fourteen months.
Postponing the issue of whether or not the missed opportunity to serve a concurrent sentence is an acceptable basis for
To the extent the district court “credited” Los Santos with time served from the date of his initial state arrest in New York City, the judge below abused his discretion. This time includes the 54 days that preceded INS’s discovery of Los Santos’ crime. Los Santos was arrested by NYPD on October 13, 1999, but INS did not discover Los Santos’ presence until he was interviewed in the Ulster Correctional Facility on December 6, 1999. Presumably, because Los Santos apparently admitted to the arresting officers that he was here illegally,
Similarly, the district court abused its discretion by departing in order to credit Los Santos with the time from his transfer to federal custody on March 21, 2000 to the date of sentencing eight months later. Under 18 U.S.C. § 3585(b)(1), Los Santos is to be credited by the Bureau of Prisons (BOP) for the time he served “in official detention prior to the date the sеntence commences as a result of the offense for which the sentence was imposed.” By factoring this eight-month period into the departure, the district court effectively double-credited Los Santos for this time. It is well settled that the credit to which Los Santos is due for time spent in federal custody is to be handled by the BOP and not the sentencing court. See United States v. Wilson,
What remains of the original fourteen-month downward departure, after subtracting the eight months that will be credited by BOP аnd the two months before the INS knew of Los Santos’ presence, is the four-month period from when
This case is difficult because we recognize that a rule requiring a defendant to show bad faith on the government’s part would nearly always prove to be an insurmountable burden for the defendant, even in a case where the delay is extreme. Moreover, such a rule would enable the government to be utterly negligent and careless in its prosecution without giving recourse to a defendant, the only one who would suffer from such negligence. On the other hand, we also acknowledge that the government is certainly entitled to a reasonable amount of time to investigate and gather evidence before indictment, even if state authorities are holding the dеfendant for other crimes. To be sure, that the government waited to take custody of Los Santos until the very day he was due to be released from state prison at least raises the suspicion of bad motive on the part of the government.
The only one of our sister circuits to have squarely addrеssed this issue thus far is the Ninth Circuit Court of Appeals. That court, sitting en banc, found that departure due to the “missed opportunity” is appropriate. United States v. Sanchez-Rodriguez,
The First Circuit has also acknowledged that even in the absence of deliberate tampering to increase sentencing, “careless or even innocent delay [could produce] sentencing consequences so unusual and unfair that a departure would be permissible.” Saldana,
Considering these cases and the policy concerns raised by the government in their brief, we hold that in order for a district court to depart under § 5K2.0 bаsed on a prosecutorial delay that resulted in a missed opportunity for concurrent sentencing, the delay must either have been in bad faith or have been longer than a reasonable amount of time for the government to have diligently investigated the crime involved such that the delay takes the case out of the heartland. Applying this principle to the case at bar, although the government’s fortuitous timing raises an eyebrow, it is not enough on its own to
Therefore, because the government’s delay in prosecuting Los Santos here was for a legitimate reason and was for a reasonable time to accomplish that goal, the remaining four months of the district court’s departure must be also vacated and the case remanded for re-sentencing.
Sentence vacated and remanded.
Notes
. We note thаt we can find no evidence in the record that Los Santos made this admission, especially in light of his use of an alias upon arrest.
. We suggest to district courts that they endeavor to create a clearer record in the future as to their rationale and basis for departure from the guidelines. This is especially necessary when venturing into an unsettled area of law such as this.