UNITED STATES of America, Appellee, v. Fernando BATISTA, Defendant-Appellant, 369 F. App'x 289

SUMMARY ORDER Defendant-Appellant Fernando Batista appeals the judgment of the United States District Court for the Southern District of New York, sentencing him to the mandatory minimum of 120 months imprisonment after his plea of guilty to one count of conspiring to distribute and to possess with the intent to distribute five kilograms and more of cocaine in violation of 21 U.S.C. § 846. We assume the parties’ familiarity with the facts of the case, its procedural history, and the issue on appeal.

On April 25, 2007, Batista pled guilty in New York State Supreme Court to a narcotics charge unrelated to the instant offense, for which he is now serving a six-year sentence, to run concurrently with a two-to-four-year state sentence for bail jumping. In May 2007, he wrote a letter to the United States Attorney’s Office for the Southern District of New York stating that he was in state custody and requesting that he face federal charges pending against him.

Batista was transferred from state to federal custody in September 2007 but due to what Batista alleges to be “some level of inaction or even outright negligence on the part of the federal authorities” was not presented in federal court until April 4, 2008. The District Court sentenced Batista to the mandatory minimum of 120 months imprisonment.

In doing so, it imposed a sentence one month below the United States Sentencing Guidelines range of 121-150 months, citing “the factors in 18, U.S.C., 3553(a), and specifically, the fact that there were several months in which [Batista] was in the custody of the federal government before the authorities recognized that fact.” It also instructed that the 120 month sentence would run concurrently with the undischarged state sentences.

The District Court, however, rejected Batista’s argument that it should “credit” the time he spent in federal custody from September 2007 to April 2008, finding it had no such authority. Batista’s sole argument on appeal is that the District Court erred by stating that it did not have the authority to credit Batista for time he spent in presentence detention, even if the length of that time was attributable to negligence on the part of the Government. Generally the Bureau of Prisons, not a district court, has the authority to determine whether a defendant should receive credit for pre-sentence detention.

See United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir.1998) (“[C]redit is granted by the Attorney General through the Bureau of Prisons after a defendant is sentenced, and although the defendant may, after exhausting his administrative remedies, obtain judicial review of that Bureau’s determination, the credit is not to be granted by a district court at the time of sentencing.” (internal quotation marks and alterations omitted)). Moreover, credit for prior custody is only authorized pursuant to 18 U.S.C. § 3585(

b) where it “has not been credited against another sentence.” Here, as the District Court correctly noted, Batista’s time in pre-sentence federal custody was credited to his state sentence. Batista does not rely on

section 3585(b), however, but on an implicit equitable power that, he argues, might be inferred from a district court’s authority to adjust a sentence pursuant to Guidelines § 5G1.3(

b) and (c). This argument is without merit. As Batista readily conceded at the sentencing hearing,

section 5G1.3(

b) does not apply here. And it is settled law in this Circuit that

section 5G1.3(

c) does not authorize a district court to credit a defendant for time already served. See United States v. Fermin, 252 F.3d 102, 105 (2d Cir.2001); see also U.S.S.G. § 5G1.3(c), application note 3(e) (“Unlike subsection (b), subsection (

c) does not authorize an adjustment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment.”). We find unconvincing Batista’s attempts to distinguish Fermin from this case. We have reviewed all of Batista’s arguments and have found each of them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.