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Smith v. Warden

United States District Court, W.D. Louisiana, Alexandria Division

January 8, 2018

SYLVESTER SMITH, Petitioner
v.
WARDEN, Respondent

          DEE D. DRELL JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge.

         Before 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.

         This 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.

         I. Background

         Smith 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.).

         At the 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.).

         Smith 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 concurrently.

(3:15-cr-0083, Doc. 982, M.D. La.) (emphasis added).

         II. Law and Analysis

         The BOP 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 ...


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