United States v. Cumming

Opinion

USCA1 Opinion

August 9, 1994
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1960 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  PETER M. CUMMING,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
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                                 ____________________

Peter Clifford on brief for appellant.
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            Peter M. Cumming on brief pro se.
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                                 ____________________

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Per Curiam.  Peter  M. Cumming, a federal prisoner,
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            appeals his  conviction and sentence following  a guilty plea

            to  eight  counts of  unlawful  importation  into the  United

            States  of  the controlled  substances  diazepam and  codeine

            phosphate  on various  dates in  April and  May of 1989.   21

            U.S.C.    952(a)  and 952(b).   The sentence  imposed was  78

            months'  imprisonment  (the  lowest level  of  the  guideline

            range), four  years  of supervised  release, no  fine, and  a

            felony assessment of $400.  Cumming's court-appointed counsel

            has filed a renewed  motion to withdraw1 and  briefs pursuant

            to Anders v.  California, 386 U.S. 738 (1967),  raising three
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            potential grounds  for relief,  but concluding that  none are

            meritorious and  requesting that  the appeal be  dismissed as

            frivolous.  Cumming has filed a supplemental pro se brief and
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            two  addenda  raising  additional  issues.   Our  independent

            review  of  these  filings  and  the  record,  which  is  now

            complete, fails  to reveal  any appellate issues  of arguable

            merit.

                      Cumming was in the "business" of importing into the

            United  States  large  quantities of  diazepam  (valium)  and

            codeine phosphate from a supplier in England.  Arrested there

            by  Scotland Yard  in April 1990,  Cumming pleaded  guilty to

            various counts charging him with assisting in or inducing the

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            1.  Counsel's  previous withdrawal motion  was denied pending
            review of the change-of-plea and sentencing transcripts.

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unlawful supply of  controlled drugs,  an offense  punishable

            under United  States law,  and received two  concurrent three

            and  six-year sentences.   Released  from British  custody in

            February  1993,  Cumming returned  to  this  country and  was

            promptly  arrested by DEA agents pursuant to a June 1990 109-

            count indictment  charging him  with unlawful  importation of

            controlled substances into the United States.

                      At sentencing  on August 20, 1993,  Cumming made an

            oral motion  for dismissal based on  double jeopardy grounds.

            He  contended  that the  British  indictment  and the  United

            States indictment charged  him with crimes  involving illegal

            importation  of the same drugs and that he had already served

            almost three years in  the British prison system for  what he

            characterized  as   the  same  offenses.     Second,  Cumming

            maintained  that his  arrest  was illegal  under 18  U.S.C.  

            41112  because  of that  foreign  conviction.   He  conceded,

            however,  that although  he had  been approved  for a    4111

            transfer, he had  opted out because of the  length of time he

            would have had to serve after the transfer.  Finally, Cumming

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            2.  Section 4111 governs treatment of persons  transferred to
            the United States  after a foreign conviction and provides in
            part that:

            An  offender transferred  to the United  States shall  not be
            detained,  prosecuted,  tried,  or  sentenced by  the  United
            States, or any State thereof  for any offense the prosecution
            of  which would have been  barred if the  sentence upon which
            the  transfer  was  based   had  been  by  a  court   of  the
            jurisdiction seeking to prosecute the transferred offender, .
            . .

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asked  to be given credit  for 34 months  in British custody.

            The district court denied Cumming's motion for dismissal.

                      Counsel  identifies  three  possible   grounds  for

            appeal:   (a)  double  jeopardy and  dual sovereignty  issues

            arising out  of the prosecutions  in England, (b)  defects in

            the change-of-plea proceeding, and (c) sentencing violations.

            Cumming's pro  se brief essentially reiterates  the arguments
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            made at sentencing.

                      (a)   Assuming that  the British and  United States

            convictions involve the same narcotics importation scheme and

            the  same offenses  under Blockburger  v. United  States, 284
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            U.S.  299, 304  (1932), it  is well  settled that  successive

            prosecutions by  two sovereigns for the same  conduct are not

            barred by the double jeopardy  clause of the Fifth Amendment.

            Heath v. Alabama, 474 U.S. 82, 88 (1985); United States  v. A
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            Parcel  of Land with A Building Located Thereon, 884 F.2d 41,
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            43 (1st Cir. 1989).  Nor does 18 U.S.C.   4111 afford Cumming

            any  relief.    Its protections  can  only  be  invoked if  a

            defendant  is  transferred  to  the United  States  "for  the

            purpose  of execution in one country of a sentence imposed by

            the  courts  of  another  country."   18  U.S.C.     4101(j).

            Cumming  does not (nor could  he) claim that  he was actually

            transferred in order to complete the execution of his foreign

            sentence,  since  that  sentence  was  fully  discharged   in

            England.

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(b)    Our review  of  the  change-of-plea colloquy

            clearly shows  that Cumming's  guilty plea was  knowingly and

            voluntarily made.  See  Boykin v. Alabama, 395 U.S.  238, 242
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            (1969).  The factual basis of the plea was undisputed and, in

            response  to the  court's inquiries,  Cumming stated  that he

            understood the rights relinquished by his plea change and the

            concomitant sentencing exposure.

                      (c)  Moreover, we perceive no apparent error in the

            district  court's sentencing procedures  or calculations.  We

            observe that  insofar as Cumming simply  seeks federal credit

            for the time spent  in British custody, a request  for credit

            for  prior custody under 18 U.S.C.   3585(b)(2) must be made,

            in the first  instance, to the  Attorney General through  the

            Bureau of Prisons upon imprisonment after sentencing.  United
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            States v.  Wilson, 112 S.  Ct. 1351, 1354  (1992) ("[Section]
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            3585(b) does not  authorize a district  court to compute  the

            [presentence  detention]  credit  at  sentencing.").     Once

            administrative remedies  are  exhausted,  see  28  C.F.R.    
                                                      ___

            542.10-542.16, prisoners may then seek judicial review of any

            jail-time credit  determination, Wilson, 112 S.  Ct. at 1355,
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            by filing a habeas petition under 28 U.S.C.   2241.  Koray v.
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            Sizer, 21 F.3d 558, 559 (3d  Cir. 1994); McClain v. Bureau of
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            Prisons, 9 F.3d 503, 505 (6th Cir. 1993).
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                      To the extent that Cumming's request for credit was

            a  request for a downward departure under U.S.S.G.   5K2.0 --

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i.e.,  that  the  prior  foreign custody  could  properly  be
            ____

            considered a  mitigating factor -- and  assuming that Cumming

            contends that a mistake  of law was made, the  district court

            correctly  found  no reason  to  depart.   Under  Wilson, the
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            authority  vested in  the Attorney  General to  compute prior

            jail-time  credit  cannot  be   circumvented  by  allowing  a

            downward departure under U.S.S.G.   5K2.0, absent exceptional

            circumstances not present here.  United States v. Daggao,    
                                             _____________    ______  ___

            F.3d       , No. 93-10321,  (9th Cir. Jul.  1, 1994), 1994 WL
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            288129.  The caselaw is otherwise clear that Cumming's credit

            request was not a  proper sentencing factor and thus  was not

            yet ripe for review.  See Martinez v. United  States, 19 F.3d
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            97, 99  (2d Cir. 1994); United  States v. Huss,  7 F.3d 1444,
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            1448-49 (9th Cir. 1993); United States v. Brann, 990 F.2d 98,
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            103-04 (3d Cir. 1993);  see also United States v.  Moore, 978
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            F.2d 1029, 1030-31 (8th Cir. 1992).

                      In accordance with the dictates of Anders, 386 U.S.
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            at 744, counsel adequately conveyed the potential conceivable

            issues  for  appeal  and  concluded that  no  arguable  error

            exists.  Careful review confirms that no arguably meritorious

            issues are raised by this appeal.  Id.  Appellant's motion to
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            consider pro se  supplemental briefs is  granted.  All  other
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            pending motions by appellant are denied.
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                      The  judgment of  the  district court  is summarily

            affirmed under Loc. R. 27.1.
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