USA v. Mathias Pizano

1The Honorable Dean Whipple, Chief Judge, United States District Court of the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2495
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Lionel Johnson, *
*
Appellant. *
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Submitted: January 10, 2005
Filed: August 12, 2005
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Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and MURPHY,
Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
After revoking Lionel Johnson's supervised release, the district court 1 imposed
a sentence within the range suggested by the sentencing guidelines, see U.S.S.G.
§ 7B1.4, and Mr. Johnson filed this appeal. Mr. Johnson then filed a motion in the
district court asking it to grant him credit against his sentence for the time that he had
spent in a halfway house during supervised release. The district court denied the
motion.

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Mr. Johnson's counsel has moved to withdraw and filed a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that the district court erred by not giving
Mr. Johnson credit at sentencing for the time that he had spent at a halfway house
during his supervised release. Mr. Johnson filed a pro se supplemental brief, in
which he raises the same issue and asserts that he was subjected to significant
restraints on his freedom while at the halfway house.
Under 18 U.S.C. § 3583(e)(3), a district court may "revoke a term of supervised
release, and require the person to serve in prison all or part of the term of supervised
release without credit for time previously served on postrelease supervision."
(emphasis added). This provision "ensures that a defendant is not given credit for a
term of supervised release when he violates the conditions of that same release,"
United States v. Lominac, 144 F.3d 308, 318 n.12 (4th Cir. 1998), abrogated on other
grounds by Johnson v. United States, 529 U.S. 694 (2000), and thus we conclude that
Mr. Johnson is not entitled to the credit he seeks.
We also note that 18 U.S.C. § 3585(b) is not available to provide Mr. Johnson
with the relief that he seeks. Although it states that defendants should receive credit
for any time that they spend in "official detention" before sentencing, 18 U.S.C.
§ 3585(b), any request for such credit must be addressed to the Bureau of Prisons in
the first instance. See United States v. Pardue, 363 F.3d 695, 699 (8th Cir. 2004).
It is evident to us, moreover, that § 3585(b) would not authorize the credit sought by
Mr. Johnson because the Bureau of Prisons does not have control over a defendant
during a period of supervised release, see 18 U.S.C. 3624(e), and therefore the
defendant is not in "official detention" as that term is used in the statute. Cf. Reno v.
Koray, 515 U.S. 50, 58-59 (1995).

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Having carefully reviewed the record, we find no nonfrivolous issues. See
Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, we grant counsel's motion to
withdraw, and we affirm.
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