United States District Court, C.D. Illinois, Urbana Division
MICHAEL P. McCUSKEY, District Judge.
Defendant, Kaliph P. Whitlow, pled guilty in 2011 to two counts of distribution of five or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), crimes that he committed before the August 3, 2010 effective date of the Fair Sentencing Act of 2010 (FSA). This court sentenced Defendant to 262 months in the Federal Bureau of Prisons (BOP). Following the U.S. Supreme Court's decision in Dorsey v. United States, 132 S.Ct. 2321 (2012), the U.S. Seventh Circuit Court of Appeals vacated Defendant's sentence and remanded the case for resentencing in accordance with Dorsey and the FSA. This court subsequently sentenced Defendant to a term of 170 months in the BOP. Defendant appealed again. The Seventh Circuit vacated Defendant's sentence and remanded the case to this court for the limited purpose of allowing this court the opportunity to exercise its discretion to adjust Defendant's sentence to account for the eight months he spent in pretrial detention, if this court finds it appropriate to do so. For the following reasons, the court finds such an adjustment would not be appropriate.
On June 9, 2010, Defendant was charged with two counts of possession with intent to distribute five grams or more of crack cocaine. Defendant pled guilty in April 2011 and was sentenced in October 2011 to 262 months in prison to be followed by eight years of supervised release. Following the issuance of Dorsey the case was returned to this court by the Seventh Circuit for resentencing pursuant to the FSA.
On remand, the probation office re-calculated Defendant's sentencing ranges under the FSA to reach a new advisory guidelines range of 188 to 235 months. The Pre-Sentence Report (PSR) continued to assert that Defendant qualified as a career offender. Neither party objected to the new PSR, but Defendant filed a sentencing memorandum that raised, among other arguments, the argument that some discount to his sentence was necessary to correct a calculation by the BOP that resulted in a failure to credit him for approximately eight months in federal custody while he was serving time on a state sentence for a crime that could be considered relevant conduct to the offense of conviction in this case. The government argued at sentencing that Defendant should be sentenced as a career offender and noted that this was Defendant's eighth felony drug conviction and that he also had a robbery conviction on his record, justifying a career offender sentence. The government, responding to this court's question, contended it was up to the BOP to fix any error in connection with Defendant's pretrial custody period and opposed any action by the district court to credit Defendant for that time.
Defense counsel argued for adjustments based on the BOP error, the need for incremental punishment, the inappropriateness of applying the career offender guideline to a someone like Defendant, and Defendant's post-sentencing efforts at rehabilitation. Regarding the BOP, this court remarked:
"Well, and but the way the Bureau of Prisons did it in this case was, in effect, made it consecutive. By not starting until March, they, in effect, waited, I think, until the State sentence was over and then started there and, in effect, took away from me a decision as to whether I wanted consecutive or concurrent. They made it, in effect, consecutive, the way it looks to me."
The court departed from the guidelines range by 18 months, citing Defendant's efforts to rehabilitate himself while in custody. The court, in sentencing Defendant to 170 months, stated:
"I'm not going to make any comment about the Bureau of Prisons' calculation. So I'm not, in effect, lowering your sentence because they decided to make the sentence consecutive. I would have made it concurrent if I'd have known it, but that's the way things are."
The Seventh Circuit vacated Defendant's sentence and remanded to this court on the BOP credit issue, stating:
"The parties now agree that the court misapprehended its discretion to adjust [Defendant]'s sentence to account for the eight months he was held in pretrial custody, time for which the BOP declined to give him credit. The court made it clear that it would have sentenced [Defendant] differently if it had known the BOP would take this approach. But the court does in fact possess the discretion to adjust [Defendant]'s sentence to account for the time the BOP refused to credit. [citations omitted] We therefore vacate and remand [Defendant]'s sentence for the limited purpose of giving the court an opportunity to exercise its discretion to adjust [Defendant]'s sentence to account for the eight month pre-trial detention, if the court finds it appropriate to do so." Whitlow, 740 F.3d at 440.
This case is back before this court on the narrow issue of whether this court, in its discretion, will adjust Defendant's sentence downward eight months for the eight months he spent in federal custody in pretrial detention while also serving his sentence on a state court conviction. Defendant argues that he is entitled to an eight month adjustment under the sentencing guidelines because "[t]he offense conduct in the state case could easily be considered relevant conduct in this case" and "[t]hus, it is reasonable to adjust the sentence downward in this case to account for the [eight] months [Defendant] spent in federal pretrial custody that the BOP refused to credit." The government responds that the guidelines do not support such an adjustment and that a downward adjustment is not supported by the sentencing factors of 18 U.S.C. § 3553(a).
18 U.S.C. § 3584 gives a district court the discretion to impose a term of imprisonment either concurrently or consecutively to a prior discharged term, taking into consideration factors enumerated in 18 U.S.C. § 3553(a). United States v. Campbell, 617 F.3d 958, 960 (7th Cir. 2010). The guideline section which governs the imposition of a sentence that is subject to another undischarged term of imprisonment is U.S.S.G. § 5G1.3. Campbell, 617 F.3d at 960. Because the instant offense was not ...