Anthony Del Guzzi v. United States of America U.S. Parole Commission United States Marshal U.S. Attorney General

980 F.2d 1269, 92 Cal. Daily Op. Serv. 9649, 92 Daily Journal DAR 16112, 1992 U.S. App. LEXIS 31383, 1992 WL 350783

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 1992
• Docket: 90-15813
• Status: Published

Opinions

PER CURIAM:

This case presents the question of a federal court’s authority to credit a federal prisoner with time spent in state prison. In August 1985, Anthony Del Guzzi pled guilty to a counterfeiting charge in federal court and was sentenced to a 5-year term. The sentencing judge ordered Del Guzzi to self-surrender to federal officials the next month. One week before he was due to turn himself in, Del Guzzi was arrested and charged with a California drug violation. Del Guzzi pled guilty, and the state court judge sentenced him to a 7-year term, to run concurrently with the pending 5-year federal term. The state judge recommended that Del Guzzi be transported to federal prison to serve his concurrent terms.

Del Guzzi was not transported to federal prison. Although the state officials informed the federal officials of Del Guzzi’s presence in state prison, the federal officials declined to accept him, apparently on the ground that they would take custody of Del Guzzi only upon completion of his state sentence.

After completing his state sentence on April 17, 1989, Del Guzzi was released from state custody, and immediately accepted into federal custody. Del Guzzi had spent three years and seven months in state custody. Del Guzzi immediately began petitioning federal prison officials to credit his state time against his federal sentence. His requests were consistently denied, as the federal official maintained that his federal sentence began on April 17, 1989, the day he arrived at the federal prison. After exhausting his administrative remedies Del Guzzi brought this pro se habeas petition. The district court denied it. Del Guzzi timely appealed.

18 U.S.C. § 3568, in effect at the time of Del Guzzi’s sentencing, states in relevant part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence....

If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.

No sentence shall prescribe any other method of computing the term.

Del Guzzi first argues that he was awaiting transportation within the meaning of § 3568. This argument fails. The state sentencing judge had no authority to commit Del Guzzi to the state prison to await transportation to the federal prison where he was to serve his federal sentence. Although the state judge stated that Del Guzzi’s sentence “may be served in the federal prison,” and “recommended that he be transported on the first available transportation,” his authority was limited to sending Del Guzzi to state prison to serve his state sentence. Accordingly, his federal sentence did not begin to run until April 17, 1989, when he was received at the federal prison. Hardy v. United States Bd. of Parole, 443 F.2d 402, 402 (9th Cir.1971) (“It is fundamental that appellant’s federal sentence did not begin to run until appellant ... was returned to federal prison for the service of the balance of his sentence”); Thomas v. Brewer, 923 F.2d 1361, 1368-69 (9th Cir.1991).

Del Guzzi next contends that even if he was not awaiting transportation within the meaning of § 3568, the federal courts have the authority to credit him with time spent in state prison. We are aware, however, of no such authority. To the contrary, we have no authority to violate the statutory mandate that federal authorities need only accept prisoners upon completion of their state sentence and need not credit prisoners with time spent in state custody. See, e.g., Smith v. United States Parole Comm’n, 875 F.2d 1361, 1364 (9th Cir.1989), Shabazz v. Carroll, 814 F.2d 1321, vacated 833 F.2d 149 (9th Cir.1987); United States v. Warren, 610 F.2d 680, 685, n. 9 (9th Cir.1980).

AFFIRMED.