The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
CORRECTED MEMORANDUM OPINION AND ORDER
In December 2005, the Court sentenced Robert Collins to a 210 month prison term on a narcotics charge. Mr. Collins has made what the Court construes as an oral motion to modify or correct the sentence. For the reasons stated below, the Court denies that request. The Court will, however, treat Mr. Collins' request as a motion under 28 U.S.C. § 2255 and proceed accordingly.
At the time the Court imposed sentence, Mr. Collins was already serving a prison term in the Illinois Department of Corrections. He was brought to this Court in November 2004 on a writ of habeas corpus ad prosequendum and remained here through the conclusion of the case.
At the sentencing hearing, the Court asked counsel whether Mr. Collins would receive credit against his state sentence for the time he had spent in federal custody awaiting disposition of his case, or whether he would get state credit only for the time he had spent in state custody. The prosecutor stated that he did not know; defense counsel and the probation officer both stated that they believed that Mr. Collins was accruing credit against his state sentence. The Court stated, "Presumably that is because he is here on a writ and not serving a sentence." Dec. 12, 2005 Tr. 8.
The Court then asked whether Mr. Collins would get credit against his federal sentence for the time he had been in federal custody awaiting disposition of his case. The probation officer said, "I don't believe so.... In my experience, that has not been happening. I had a sentence last week where the Judge provided credit for that time." Id. 9. The Court asked again, "If I impose a prison sentence on Mr. Collins, will he get credit against that prison sentence for the time that he has been here, since he was writted over here in November of last year?" The prosecutor said, "I believe so." The Court, evidently having misunderstood the probation officer, said, "Ms. Brown thinks so." The probation officer replied, "I don't think so. This was an issue last week [in another case]. The Guideline range was eighty to eighty-nine months. The Judge went to the low end rather than the high end to compensate." Id. Defense counsel did not state his views. The Court went on to discuss with the parties the issue of whether the sentence it imposed should be concurrent or consecutive with Mr. Collins' state sentence.
The Court orally imposed sentence as follows:
The sentence is going to be two hundred and ten months. I am going to make that concurrent with the State term. I don't think a consecutive term is required. It is a really severe prison term.
I am also going to give Mr. Collins - - the J&C order will provide that Mr. Collins get[s] credit for the sentence, for the time that he served in Federal custody since November 3, 2004.
Here is what that means, basically, so you have a feel for it. Two hundred and ten months sentence. Assuming you don't mess up and get your good time, you will get your good time. You will do about - - well, that takes it down to about one hundred and seventy-six or one hundred and seventy-seven months. You are getting credit for the thirteen months you have done. That takes it down to about one hundred and sixty-four. It is going to be concurrent with your State sentence, rather than consecutive....
Id. 20-21. In other words, the Court ordered that Mr. Collins was to receive credit for the time he had served in federal custody since being brought before the Court on the writ. This provision of the Court's oral ruling was incorporated into the written sentencing judgment, though with a scrivener's error noted below.
In mid-December 2009, the Court received a letter from the Chief of the Federal Bureau of Prisons' Designation and Sentence Computation Center. The letter referenced the Court's directive that Mr. Collins receive credit toward the service of his federal sentence beginning November 3, 2004, and stated as follows:
As a sentence cannot begin prior to its imposition, the Bureau of Prisons (Bureau) calculated Mr. Collins' sentence to run concurrent to his state sentence beginning on the date of imposition (December 12, 2005). In addition, the Bureau awarded the credit ordered by the Court. However, credit for the period of November 3, 2004, through December 11, 2005, is prohibited by Title 18 U.S.C. § 3585(b), as it was credited toward the service of another sentence.
The Bureau recognizes the Court's authority to apply credit under U.S.S.G. § 5G1.3, through an adjustment to the term imposed under § 5B1.3(b), or a downward departure under § 5G1.3(c). If it were the Court's intent to impose an adjusted sentence taking the above period into consideration, an ...