United States of America v. Luke Preacher

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6515
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
LUKE PREACHER,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:14-hc-02179-FL)
Submitted: September 29, 2015 Decided: October 7, 2015
Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Michael Bredenberg, Special Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On August 20, 2014, the Government filed a Certificate of a
Sexually Dangerous Person against Luke Preacher, seeking his
civil commitment pursuant to 18 U.S.C. § 4248 (2012). Preacher
moved to dismiss the proceeding, asserting that he was not in
the legal custody of the Bureau of Prisons (“BOP”) at the time
the Government initiated the civil commitment proceeding. The
district court denied the motion and subsequently determined
that Preacher qualified as a sexually dangerous person and
ordered his commitment to the care and custody of the Attorney
General. Preacher appeals, challenging the district court’s
determination that the Certificate was timely filed.
As Preacher correctly notes, a person must be under the
legal custody of the BOP at the time the Government files a
Certification of a Sexually Dangerous Person; otherwise, the
civil commitment proceeding must be dismissed. United States v.
Joshua, 607 F.3d 379, 388 (4th Cir. 2010); see 18 U.S.C.
§ 4248(a) (providing that civil commitment proceeding may
commence against a person “who is in the custody of the Bureau
of Prisons”). Thus, for Preacher’s commitment under § 4248 to
stand, he must have been under both the physical and the legal
custody of the BOP on August 25, 2014. We find that he was, and
therefore affirm.

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On April 25, 2000, the Fort Hall Police Department on the
Fort Hall Indian Reservation in Idaho arrested Luke Preacher on
charges of rape, abduction for defilement, possession of
marijuana, and endangering the welfare of a minor child.
Preacher pled guilty to rape and was sentenced to nine months’
imprisonment.
Preacher subsequently pled guilty in the federal district
court to aggravated sexual abuse of a child within Indian
Country based on the same conduct for which he pled guilty in
the tribal court. The district court sentenced him to 168-
months’ imprisonment. The district court was silent as to
whether the 168-month term was to be served concurrently with or
consecutive to the nine-month sentence imposed by the tribal
court, but the court did recommend that “the defendant be
credited with all time served, including time served through
tribal court.” On January 5, 2001, the tribal court
relinquished authority over Preacher and turned him over to the
U.S. Marshals to begin serving his federal sentence.
Preacher contends that, due to the district court’s
recommendation that he receive credit for all time served,
including that served under his tribal sentence, his federal
term of imprisonment expired on April 25, 2014, exactly 168
months after his arrest by the Fort Hall Police Department.
This argument fails.

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Assuming Preacher is correct that the district court
intended a credit for all nine months of his tribal sentence,
this calculation would not be binding on the BOP if not
permitted under 18 U.S.C. § 3585(b). District courts lack
authority to compute credit at sentencing. United States v.
Wilson, 503 U.S. 329, 334 (1992). Under 18 U.S.C. § 3585(b),
the Attorney General, acting through the BOP, makes these
calculations. Id. In determining the amount of prior custody
credit a defendant is to receive, § 3585(b) directs the BOP to
give the defendant credit “for any time he has spent in official
detention prior to the date the sentence commences . . . as a
result of the offense for which the sentence was imposed; . . .
that has not been credited against another sentence.” 18 U.S.C.
§ 3585(b) (emphasis added).
Here, the BOP heeded the district court’s recommendation
and calculated the credit available to Preacher under § 3585(b).
First, the BOP determined that the tribal authorities credited
Preacher’s nine-month sentence with all of the time served from
April 25, 2000, the date of his arrest, until January 5, 2001,
the date the tribal court relinquished authority over Preacher.
Because Preacher received credit for time served from the Fort
Hall Jail, the BOP appropriately determined that Preacher was
not entitled any additional prior custody credit against his
168-month federal sentence. See 18 U.S.C. § 3585(b); see also

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Wilson, 503 U.S. at 337 (“Congress made clear that a defendant
could not receive a double credit for his detention time.”).
Accordingly, Preacher commenced serving his 168-month federal
sentence on January 5, 2001. Accounting for good time credit,
Preacher’s release date was appropriately computed to be October
12, 2014.
In sum, on the date the Government initiated the civil
commitment proceeding, August 25, 2014, Preacher was in the
physical as well as the legal custody of the BOP. Thus, the
district court had authority to proceed with the determination
of whether to certify Preacher as a sexually dangerous person.
Accordingly, we affirm the district court’s order denying
Preacher’s motion to dismiss the proceeding and therefore affirm
the civil commitment order. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

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