United States v. Omar Jahal Daggao, A.K.A. Omar Jahal Ali-Daggao

preceding para- order form” sixth

graph). paragraph The third covers sto- money they

len orders this case because money provided by

were blank orders

post postal printed office. Since the service provided money orders involved in case, they “provided,” were “issued” they

and the fact that were stolen does not

change this outcome. Turner could there-

fore be convicted for “alteration” because he

imprinted money values onto blank orders Thus, post

stolen from the office. the dis- properly

trict court denied Turner’s motion judgment acquittal

for a on his convictions altering money passing orders and money

altered order.

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, DAGGAO,

Omar Jahal a.k.a. Omar Jahal

Ali-Daggao, Defendant-Appellant.

No. 93-10321.

United Appeals, States Court of

Ninth Circuit.

Argued May and Submitted July

Decided Portman,

Barry J. Federal Public Defend- er, Francisco, CA, San for the defendant- appellant. court the district that requested Atty., San Boersch, Asst. Martha authority, it have such if it did even hold that

Francisco, CA, plaintiff-appellee. for de- request for a deny the Daggao refused. the district court parture, imprisonment, to 87 sentenced release. supervised years by five followed POOLE, CHOY, and Before end the low 87 month Judges. REINHARDT, Circuit on a range, based guideline applicable the catego- 27, level of total offense by CHOY; Dissent by Judge Opinion history. ry III criminal REINHARDT. Judge court’s the district timely appealed Daggao CHOY, Judge: Circuit erred court sentence, claiming that authority under it lacked finding that PROCEDURAL AND I. FACTUAL depart downward § to 5K2.0 U.S.S.G. BACKGROUND We detention. under in-house (a.k.a. affirm. Jahal Omar Daggao Jahal Omar committing charged with Ali-Daggao) was robberies, arrest- II. DISCUSSION bank

three armed held He was August ed on de novo review he September until custody grant a that it lacked decision magistrate a United appeared before from magistrate released hearing. The Lira-Barraza, United States with $100,000 property bond Daggao on banc). Cir.1991) (en 745, 746 F.2d Dag- that ordered It was conditions. several Daggao claims house, and parents’ his confined gao be lacked it court erred He was electronically monitored. depart downward all house at parents’ his at be confined in-house de spent under local times, except to attend sentencing. U.S.S.G. 'to tention by reasons authorized for other college, and § order, 5K2.0 states: Pursuant Pretrial Services. 3553(b) sentencing his to leave § him authorized Services Under Pretrial Friday Monday through every may impose sentence outside house court parents’ Daggao guide- by applicable P.M. range to 5:00 established A.M. from 8:00 an “that there exists line, court finds if in such in-house mained eight circumstance and a half aggravating mitigating or seven proximately adequately kind, degree, not to a or months.1 consideration taken into requested a sentencing, Prior formulating the Guidelines sen- his Guideline a sentence result in that should the basis of 5K2.0 tence under U.S.S.G. described.” from that period of eight-month approximately aggravating court identifies If the district denied house detention. adequately mitigating circumstance stating that it did departure, the downward Commission, then account taken into authority to not believe so legally authorized “the in-house for time is consistent long as the prosecutor When 5K2.0. tention date, has not the defendant reported "[t]o Daggao violated alleges that Government pre-trial services conditions, of his claims to conditions violated while his release report relied surrendered was the until Because this supervision.” terms abided sentence, making his prison serve its himself the con- minor violations officer shows a few record accept the conclusion the Presen- of his release. ditions of his conditions Daggao did violate sentencing just prior to Report, prepared release. incidents, was reported above after prescribed by factors Con tention rather than state custo- 3558(a), gress in 18 U.S.C. with the Guide dy, this is not a meaningful distinction for lines, and, course, with the Constitution.” purposes Accordingly, 5K2.0. Lira-Barraza, 941 F.2d at 746. precludes if departure for spent in state custody,

To the extent that the Commis precludes departure sion has not also spent considered the conditions or for time un- time under which a defendant i's der released or in-house detention. sentencing, before trial detained or it is sim Daggao claims that Huss is not dispositive ply because a court lacks statuto because the court opinion couched its ry authority to consider it as a factor at the rationale that rather than ask for a down- sentencing, Supreme as the Court held in departure ward spent for time in state custo- — Wilson, United States v. U.S. —, dy, the defendant should have exhausted ad- (1992). Wil S.Ct. 117 L.Ed.2d In ministrative appealing. remedies before son, Supreme Court held that the district remedy administrative the court referred to authority grant court has no to a defendant challenge was a Attorney to the General’s credit for time served in detention before sentencing policy, followed a habeas cor- sentencing, but rather Attorney that pus petition on that Daggao issue.3 As rec- has authority grant General the sole to credit ognizes, in Huss was focused on opinion our already for time served. credit, grant an administrative Huss, In United States v. action which generally is left to Attorney (9th Cir.1993), upheld 1448-49 reason, General. For this we did not discuss authority it lacked whether detention was considered depart downward from the Guidelines on the Guidelines, constitutes a basis of time which the defendant al- had a downward ready spent custody. in state We found that ture. authority depart precluded by was Supreme Court’s decision in Wilson. In do- Daggao claims that this court in Huss did so, rejected ing we argument the defendant’s not discuss detention was asking that “he was not Guidelines, or constitutes a Wilson, circumvent but rather to credit Huss mitigating circumstance, because Huss asked for time that he served that would not be departure for a purpose for the of Huss, recognized by the BOP.” 7 F.3d at obtaining credit he would otherwise not re- 1449. The court stated that credit for such Huss, ceive. 7 F.3d at Daggao 1448-49. only time served pursued could be in district argues that his claim is that he court once the defendant had exhausted ad- credit, asking has made it clear he is not by challenging ministrative remedies the de- only that his detention be considered aas (BOP) cision of the Bureau of Prisons not to mitigating argument circumstance. This Id. Therefore we refused to grant credit. Huss. point holding misses the our reverse the district court’s determination denied the downward in terms of authority depart that it lacked credit because we deter- spent custody. for time in state mined that improper it was to circumvent the

Daggao Attorney trying policies regarding is also General’s receive a down- granted. policies ward for time for credit should which the BOP Such will not directly though credit.2 While should be attacked. Even finement involved time asking de- this case General, Program 2. The Statement residence or a residential center is 5880.24, pur- No. has determined that for the credit. poses credit towards a sentence days spent "custody” served for under 18 infra, rejected 3. As noted this court such a chal U.S.C. 3568 or "official detention” under its lenge under circumstances similar to those of replacement Daggao’s pre-trial detention in v. United physical Prisons, jail-type incarceration aor institution or States Bureau 1 F.3d 924 Cir. 1993). facility would be credited. Pre-trial detention in case distinguishing Instead result is “mitigation,” the is between Huss, distinction appropriate in the form time served wants credit distinguishable and Miller. Miller Huss Huss we departure. ground Huss and both lacks termined who someone it involved served. for time sentenced, in Wilson whereas this construction argues that for time Huss, question in Unit by this court’s decision undermined holding of Miller sentencing. The before Cir. v. ed States where unique situation to the limited ease, held that this court an erroneous the district court proper Cook, from United States quotation because from the Cir.1991) Judge which F.2d 149 938 de which the of home six-months is in Miller in his Tang cites concurrence an errone already served under had fendant unique point: combi- “[A] this on instructive held court ous mitigat- may [a constitute of factors nation the district inapposite to was departure is ... ing] ‘circumstance’ from court’s case,’ atypical finds an ‘a court occur n. 2. at 554 Id. Sentencing Guidelines. from significantly differs conduct ‘where one were of Miller However, the circumstances ” J., (Tang, con- 555 F.2d at 991 norm.’ at bar. of the case those (quot- dissenting part) curring in and part was that in Miller the case posture of court, as Cook, This 938 F.2d ing initial court’s Guidelines, have made aswell by this remanded was from the Guidelines to be departures are clear that it ade failed to because court situations, be and will “atypical” reserved departing its reasons explain quately A4(b). Part infrequent. U.S.S.G. highly See court When the atypical the as might one characterize While sentence, one of same reimposed the er- sentenced a defendant is where situation already had that Miller gave was reasons resentencing not be roneously, and original six-month most served under house for time served credit sentence, a “trav it would be atypical. arrest, not situation Daggao’s sen the Guideline her serve esty” to make agreed This point. at this further undermined Daggao’s claim is part: attack on rejection of a direct proper to been may have agree it We regarding in-house policy BOP’s credit of the six months depart because Bureau Fraley v. United In tention. already served. Miller had (9th Cir.1993), Prisons, we 924 punished she’d fact that corpus a habeas the dismissal affirmed certainly to what relevant extent some challenged the denial which petition punish her is needed further spent under house of credit time BOP 18 U.S.C. See others. deter so, recog- doing trial. In prior to arrest (sentence 3553(a)(2) reflect imprisonment purposes of the different nized considerations). And because and other compared as a sentence home confinement to have not consid- seems the Commission as a bond in-house detention time compensating for issue of ered the in Fra- Daggao, the defendant dition. Like served, was erroneously her home to leave permitted ley was not 3553(b). depart. office, See free permission from without We held electronically monitored. specifically stated We F.2d at 554. credit, entitled the defendant compensating for is “the issue those of approach the conditions did as the Commission erroneously which served” rejected an case, Id. at incarceration. Id. not considered. people challenge on based protection equal part of an errone- not as time served being than six-months of less sentences sentence, merely a condition but was ous confine- in home their terms to serve allowed flight. a risk of Daggao posing based The court found that the defendant 5K2.0 to ment. downward from situated, similarly was not because of a dif Guidelines on the basis of legal ferent status. contrast to those under in-house detention. The confinement, “pre-sen- sentenced to home General has sole being punished; they tence residents are not credit for time served detention before conditionally halfway released to [the sentencing. That cannot be cir- protect house] to and assure by allowing cumvented presence sentencing.” their at trial and Id. 5K2.0, except tures under U.S.S.G. Woods, (quoting United States exceptional circumstances such as when a denied, cert. erroneously, defendant is sentenced and has 110 S.Ct. 108 L.Ed.2d 478 served time under that erroneous sentence. (1990)). AFFIRMED. Daggao argues distinguish- able because does not claim that he REINHARDT, Judge, dissenting: Circuit is entitled to credit for time served under detention, majority certainly stating correct in house rather that the circum- stances of the courts cannot his home detention detention. See United , — departure. —, which to base downward States v. 112 U.S. S.Ct. Wilson 1351, 117 (1992). Fraley While is correct that My colleagues L.Ed.2d 593 bar, dispositive Fraley of the issue at effec- err, however, by treating what tively allowing rationale undermines actually asking departure for —a downward in-house detention as a § under 5K2.0 of the Guide if equivalent request lines —as it were to a granting ture. The rationale for such a Accordingly, for credit. It is not. I dissent. departure recognition would be Wilson, Supreme the Court held that a punishment. such confinement as lacked Fraley in pretrial we held that in-house con- for time served in detention before sentenc punishment, finement does not serve as ing. The Court stated that under 18 U.S.C. serving separate purpose. “In stead 3585(b), § credit for such detention could be trast, pre-sentenced being residents are not — granted only by Attorney the General.1 Woods, punished.” (quoting 1 F.3d at 926 at —, 1354, 112 S.Ct. 117 L.Ed.2d 888 F.2d at 593. The General has determined It be inconsistent that a hold home detention —no matter defendant should be allowed a downward de- imposed what the terms of the confinement parture spent based on time under in-house in the individual case—is not a sufficient light detention in that credit liberty qualify restriction on as “official warranted, for such time is not served as Program detention” under statute. See Fraley. in court held Pre-trial in-house de- agreed Statement No. 5880.24. We with this separate purpose pun- tention serves 3585(b) construction of 18 U.S.C. ishment, safeguarding community, that of Prisons, 1 v. United States Bureau F.3d assuring present at that the defendant is (9th 924, Cir.1992), noting 926 that at least sentencing. trial and other circuits had reached the same three conclusion.2

III. CONCLUSION quite point, All of this is beside the howev- affirm the district court’s determina- er, authority under because the determination that tion that lacked the Edwards, 278, 3585(b) provides, pertinent part, 2. See United States v. 960 F.2d 283 18 U.S.C. Wickman, (2d Cir.1992); 955 United States v. Cir.1992) (en banc); (8th A defendant shall be credit toward F.2d 593 United imprisonment service of a term of Cir.1991). Insley, States v. he has detention Zackular, official States v. See also United date the sentence commences.... (1st Cir.1991). 425 n. added). (Emphasis 5K2.12) (§ to avoid cion and duress qualify “official as does not home 5K2.11). The (§ harm greater 18 U.S.C. is used in detention,” term as that to ac- departures also authorize downward tell us 3585(b), does not simply not considered other circumstances count for in the intended Section Sentencing Commission. prohibit downward Sentencing Guidelines if the states that of the Guidelines 5K2.0 lengthy periods inordinately departure when mitigating cir- sentencing judge identifies Bu- Although occur. into consid- adequately taken “not cumstance Prisons reau of Commission, impose “may eration” spent in only for time 3585(b) give credit range established outside a sentence Commis- detention,” “official § 5K2.0. guideline.” applicable constraint under no similar sion departures gard to downward wheth- directly considered never haveWe cases Thus, and the Guidelines. can serve er point.3 plying it are not basis Nevertheless, holding in our down- statutory credit and Although both Miller, F.2d 552 United reducing the effect ward it clear that makes serve, the two will defendant determin- be relevant home detention differently and quite operate mechanisms availability of downward ing the Credit, purposes. quite different serve some circumstances. automatically for time granted which is for the to account departed incarceration, prevent acts to pre-sentence that the defendant six are unable who to defendants unfairness erroneously imposed sen- under an result, pre- subject, as a make the de- To make home detention. imprisonment. equivalent trial detention the entire Guideline fendant serve mandatory and is credit is court, have would, according to the district statutory specific a terms of by the controlled upholding “travesty”. a constituted who have defendants provision. Convicted suggested that departure, we statutory provision of the terms satisfied significant pun- constituted home right. matter a to credit as are entitled of ishment: hand, on the other departures, Downward proper to been agree it have statute, grant- are but by controlled are not of home of the six depart because Guidelines, ed, permitted cases served. detention Miller sentencing judge's according to the largely punished to already been fact that she’d depar- option of discretion. to what certainly relevant extent is some to ac- was included tures punish her sentence needed further to the de- relevant for circumstances count others. See and deter consid- just but not termination (sentence 3553(a)(2) reflect sentencing setting the Guidelines ered considerations). And because other authorize expressly ranges. The Guidelines consid- have seems the Commission variety of circum- in a for compensating ered the issue is af- defendant stances, as when the such served, erroneously impair- extraordinary physical flicted with 3553(b). depart. See 18 U.S.C. free (§ 5H1.1), (§ 5H1.4), infirm aged or ment F.2d at 554. to authorities assistance substantial provided detention, home Thus, it seem that would by victim (§ 5K1.1), provoked trial, may be period during the even coer- (§ 5K2.10), crime under or committed consid- majority discusses cited cases the other 3. All of a basis Sentencing by under 18 U.S.C. ered requests for credit relate 3585(b), inapplicable to departure, or whether for United departure. As quest for a downward stitutes Huss, a case 7 F.3d 1444 v. that the holds departure. Huss heavily, did not majority relies request on which pursued his defendant should question of downward there reach the exhausting remedies by his administrative custody, state Huss tures. involved at 1448-49. Id. General. with the never opinion in Our Huss detention. by judicial judges by discretion left to worthy of consideration Sentencing majority’s Guidelines. The compensation for time errone- judge. Like opinion unnecessarily, curtails that discretion ously post-conviction served in home deten- unfortunately consequences. and with harsh tion, compensation inordinately respectfully I dissent. detention has not expressly been indeed has there

Commission. Nor subject pre- consideration of the

express

trial home detention at all the Commis- Nevertheless, strong

sion. there is evidence in the Guidelines themselves that the Com- INDIANS, TRIBE SPOKANE OF mission views home detention as a substan- Plaintiff-Appellee, (as, course, tial form of restraint we did v. Miller). 501.1(e)(3) Section of the Guide- STATE, WASHINGTON State imposition authorizes the of home de- lines Gardner, Washington; Booth Governor tention for sentence that falls within Washington; of the State of Ken Eiken A, B, Zones or C of the Table. berry, Attorney of the General State of Guidelines, result, certain As a Washington; Miller, Deputy Franklin L. up prison terms of to 16 months Washington Director of the Gam State served, entirety, their home detention. bling Commission, Defendants-Appel short, Commission has lants. sufficiently that home detention is concluded INDIANS, TRIBE SPOKANE OF replace- restrictive to serve as a one-to-one Plaintiff-Appellant, imprisonment in ment for certain cases. Giv- this, say en I cannot the Commission prohibit categorically pre- the use of STATE, WASHINGTON State

trial home detention as basis downward Washington; Gardner, Booth Governor departure regardless length of time Washington; of the State of Ken Eiken Indeed, berry, the defendant has been detained. Attorney General of the State of likely Washington; is more the Commission would Deputy Franklin L. permit judges Washington to consider whether to Director of the State Gam bling Commission, grant case-by- Defendants-Appel a downward on a basis, lees. case at least in cases where the home detention at issue meets the definition set 92-35113, Nos. 92-35446. Commentary

forth in the 5F1.2.4 The Appeals, United States Court of in this case meets defini- Ninth Circuit. Accordingly, I tion. would reverse the dis- trict court’s determination that it lacked au- Argued and Submitted Oct. 1993. thority a downward July Decided resentencing. remand for important vestiges is one of the most program training programs, educational other "Home detention" means of con- such supervision that finement and restricts the defen- items as authorized. Elec- place continuously, ex- dant to his of residence monitoring appropriate tronic is an means absences, cept by appro- enforced authorized ordinarily be used in surveillance priate means of surveillance with home detention. al- connection office. When an order of home detention is ternative means of surveillance be used as imposed, the defendant is to be in his long they moni- are as effective as electronic place except of residence at all times toring. proved gainful employment, absences for com- care, service, 5F1.2, (n. 1). services, Commentary munity religious medical

Case Details

Case Name: United States v. Omar Jahal Daggao, A.K.A. Omar Jahal Ali-Daggao

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 1, 1994

Citation: 28 F.3d 985

Docket Number: 93-10321

Court Abbreviation: 9th Cir.