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UNITED STATES v. GOETZ

March 5, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD LESTER GOETZ, Defendant.



The opinion of the court was delivered by: EUGENE F. LYNCH

 The above-captioned matter presents the Court with the following question: may the Court grant a defendant credit for time served prior to the imposition of a sentence of imprisonment for time spent prior to that sentence in a residential drug treatment facility?

 INTRODUCTION AND BACKGROUND

 Subsequently, Mr. Goetz pleaded guilty to count one of the indictment after a plea agreement was negotiated between defendant and the United States. Sentencing was set for December 6, 1991. The parties are in agreement that the applicable Guideline range for the offense committed is 12 to 18 months. As of the sentencing date, Mr. Goetz had been at Newbridge for six months. Accordingly, the Court must determine whether or not defendant may be given credit towards his sentence for time served prior to sentencing at Newbridge.

 ANALYSIS

 1. Conditions of Confinement at Newbridge.

 Newbridge Foundation is a residential drug treatment facility that employs profoundly restrictive conditions. As such, Mr. Goetz has been unable to leave the facility except to go to Court and to visit counsel. *fn2" Additionally, Mr. Goetz is prohibited from making or receiving telephone calls, and could not receive any mail or visitors during his first six months. *fn3" Mr. Goetz's activities have been closely monitored, and he has not been permitted to read books nor has he been permitted to sleep continuously for more than five hours.

 2. Applicable Law.

 In Brown v. Rison, 895 F.2d 533 (9th Cir. 1990), the Ninth Circuit held that the conditions of defendant Brown's confinement at E.C.I., a halfway house, deprived him of his liberty to such a degree that he was "in custody" for purposes of receiving credit for time served under 18 U.S.C. § 3568, the statute governing credit for time served at that time. The Court notes that the conditions of confinement in Brown were less exacting than those undergone by Mr. Goetz at Newbridge: defendant Brown was required to spend each evening at E.C.I. from 7:00 p.m. to 5:00 a.m.; maintain employment; restrict travel to a three county area; and submit to drug testing. Thus, Brown would appear to control, entitling Mr. Goetz to credit for time served. However, the Court must address two issues prior to making that determination: (1) the continuing vitality of Brown within the Ninth Circuit; and (2) whether or not a change in the language of the relevant statute precludes the granting of such credit. The Court turns to the latter question first.

 3. 18 U.S.C. § 3568 and its Successor 18 U.S.C. § 3585.

 Prior to November 1, 1987, the relevant statute governing the calculation of terms of imprisonment and credit for time served was 18 U.S.C. § 3568, which provided that:

 The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which the sentence was imposed.

 Under the Guidelines, applicable to criminal activity occurring after November 1, 1987, credit for time served is governed by § 3568's successor statute, 18 ...


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