In United States v. Jacinto-Gonzalez, 2018 WL 1378021, the Eleventh Circuit vacated a sentence in order for an inmate to be credited with the time that he spent in a federal facility.
Jacinto- Gonzalez was arrested and charged with being in the United States after being previously deported. He pled guilty on June 23 and had been in custody since March 26. His punishment range was between 8 and 14 months. His counsel asked the court “to fashion a sentence that gives him credit for that time.” The court said it was hard to know how much credit Jacinto-Gonzalez would get and sentenced Jacinto-Gonzalez to eight months confinement with no credit for time served. The court said:
“What I’ve essentially done is given him credit for the time served and calculate it as a 13- or 14-month sentence, depending on whether you’re giving him credit or not for the 30 days he did on state time, which technically he should not get credited against this, but the bottom line is eight months with no credit for time served before today.”
When his attorney objected, the court said that he was effectively getting credit. The court placed in the order that: “The defendant has received credit for his prior time in custody. Thus, the defendant SHOULD NOT receive credit for any time served prior to October 4, 2017, the date of sentencing (emphasis added)”
The court stated that while 18 USC 3585(b) says that “‘a defendant shall be given credit” for time served in official detention “that has not been credited against another sentence.’” The Supreme Court has also stated that section does not authorize a district court to compute the credit at sentencing. Rather, it is the Bureau of Prisons that computes credit for time served. This means that although the court could adjust Jacinto-Gonzalez’s sentence for the amount of time served that he had, the court didn’t have the authority to prevent the BOP from calculating the time served.
The government said that this error was harmless and invited. The court disagreed. First Jacinto-Gonzalez just asked that the court also consider his time served when the court was deciding the appropriate length of the sentence under 2L1.2 of the Guidelines. Second, with regard to harmlessness, Jacinto-Gonzalez did not necessarily receive a shorter sentence by getting sentenced to 8 months with no credit for time served. Finally, it wasn’t clear when he went in and out of federal custody meaning it’s not clear beyond a reasonable doubt that the error complained of did not contribute to the sentence.
The Eleventh Circuit reversed with orders that the district court can consider the time spent by Jacinto-Gonzalez received in state custody pursuant to 2L1.2 comment 6, but the court can’t preclude the BOP from performing its own calculation of time served. 2018 WL 1378021