United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2241) filed by pro se Petitioner Sylvester Smith
(“Smith”) (#07375-095). Smith is an inmate in the
custody of the Federal Bureau of Prisons (“BOP”),
incarcerated at the Federal Correctional Institution in
Pollock, Louisiana. Smith challenges the calculation of his
sentence by the BOP.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of the Court.
pled guilty and was convicted of conspiracy to distribute and
possess with the intent to distribute five kilograms or more
of cocaine, and two counts of unlawful use of communications
facilities. (3:15-cr-0083, M.D. La.). Smith was sentenced to
a term of 120 months of imprisonment. (3:15-cr-0083, Doc.
982, M.D. La.).
sentencing, Smith's attorney made a verbal request that
Smith receive credit for 609 days that he had served on an
offense in the 18th Judicial District Court, which was
considered relevant conduct. (3:15-cr-0083, Doc. 961, M.D.
La.). The Court verbally granted the request and ordered that
Smith receive 609 days credit toward his federal sentence.
(3:15-cr-0083, Doc. 961, M.D. La.).
notified his attorney that the BOP had not given Smith credit
for the 609 days as ordered by the sentencing judge. Because
the judgment did not reflect the judge's ruling regarding
the 609 days of credit, Smith's attorney filed a motion
to correct a clerical error. (3:15-cr-0083, Doc. 961, M.D.
La.). The court issued an amended judgment that stated:
The defendant is hereby committed to the custody of the
United States Bureau of Prisons to be imprisoned for a total
term of: 120 months on count 1, and 48 months on each of
counts 24 and 25, to run concurrently.
Pursuant to USSG § 5G1.3 and § 5K2.23, the
defendant is to receive 609 days of credit toward this 120
months sentence, for time he served under Docket No. 122382
for the offense of possession of cocaine, 18th Judicial
District Court, Port Allen, Louisiana.
It is further recommended any future sentences for the
following: Stop When Traffic Obstructed, Expired Driver's
License, Driving Under Suspension, and Possession of
Marijuana, Baton Rouge City Court -Docket No. 08-CR-038345S;
Speeding 21-30 MPH Over Limit, Baton Rouge City Court -
Docket No. BR01903284; Possession of a Schedule II
Drug-Codeine, Use of a Firearm While in Possession of a
Controlled Dangerous Substance, and Convicted Felon Carrying
a Weapon, 32nd Judicial District Court, Houma, Louisiana -
Docket No.09-FELY-557901; Drug Financial Transaction, 32
Judicial District Court, Houma, Louisiana - Docket No. J-
01756-09; Following too Closely, Reckless Operation of a
Motor Vehicle, Flight From an Officer, Speeding, Failure to
Stop at a Stop Sign, No. Passing Zones, Improper Turn, No.
Headlights, Unattended Motor Vehicle, Blocking of Private
Driveways, Highways and Department Right of Way, and Driving
Under Suspension, 23rd Judicial District Court, Gonzales,
Louisiana - Docket No. 29615; Possession With the Intent to
Distribute Schedule I Controlled Dangerous Substance,
Possession With the Intent to Distribute Schedule II, 2
counts, Unlawful Use or Possession of Body Armor, and
Transactions Involving Proceeds From Drug Offenses, 23rd
Judicial District Court - Docket No. 29614, be served
(3:15-cr-0083, Doc. 982, M.D. La.) (emphasis added).
Law and Analysis
denied Smith's request for “609 days of credit
toward this 120 month sentence, ” as written in the
judgment. The BOP determined that awarding the credit ordered
by the sentencing judge was prohibited by 18 U.S.C. §
3585(b). Likewise, the probation officer informed the BOP
that the credit could not be honored by the BOP “based