The opinion of the court was delivered by: Vaughn R. Walker United States District Judge
STIPULATION AND [Proposed] ORDER IMPOSING "TIME SERVED" SENTENCE TO ENSURE CUSTODY CREDITS ARE APPLIED AS INTENDED BY THE COURT AT SENTENCING
Defendant Enrique Sanchez, through counsel, and Plaintiff United States of America, through counsel, hereby stipulate as follows:
1. This stipulation and proposed order are submitted by the parties to address a conflict that has arisen regarding the custody credits applied by the Bureau of Prisons to Mr. Sanchez's sentence, which is based on the manner in which the sentence was imposed earlier in this case.
2. At the sentencing hearing, the parties and the U.S. Probation Office jointly recommended a sentence of 60 months. The parties noted that a state court sentence had been imposed on Mr. Sanchez in connection with a state court case based on the same conduct at issue in this federal case. Based thereon, and seeking to ensure that the federal pre-sentence custody credits ran from June 17, 2006 (the date of arrest) and that the federal sentence ran concurrent to the state court sentence, the Court adjusted the sentence and noted that it was to run concurrent to the state court sentence. At the sentencing hearing, following discussions with counsel, the Court stated in imposing sentence, "The defendant will, very shortly, have spent, in custody, a time equivalent to the sentence which I'm about to impose."
Reporter's Transcript ("RT") 05/06/10 at 16. The Judgment reflected the following at p. 2: "The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned 1 for a total term of 57 months to run concurrent to state sentence."
3. It has come to defense counsel's attention that the Bureau of Prisons ("BOP") recently indicated that due to the language used in imposing the sentence, and due to the BOP's required method for calculating and applying custody credits when state custody time overlaps with federal custody time, Mr. Sanchez will not currently receive credit for the time he served in state custody, and that under those calculations, he will not be released until October 21, 2012 under the sentence as currently imposed.
4. Defense counsel has discussed this matter with the a representative of the BOP's Designation And Sentence Computation Center ("DSCC"), who has confirmed that October 21, 2012 is the current release date, absent further order of the Court. The BOP DSSC representative also has indicated that if the Court's intent at sentencing was as set forth above, the most efficient way to effectuate this intent is for the Court to order the sentence be modified to a "time served" sentence.
5. Based on the above, and based on the Court's and counsels' discussion at the sentencing hearing, the parties believe that a "time served" sentence, effective as soon as the Court can review this stipulation and issue the order proposed below, is reasonable, appropriate, and conforms with the Court's intent at the time of sentencing.
6. The parties also respectfully request that the Court review and consider this stipulation 8 and proposed order on an expedited basis. Mr. Sanchez currently is housed at FDC-Dublin (but likely only for a short period of time). By defense counsel's calculations, Mr. Sanchez already has served more than the Court intended Mr. Sanchez to serve. The Court and the parties also stated and intended at the original sentencing hearing that Mr. Sanchez would be released from FDC-Dublin so that he could visit with his family in Santa Rosa for one or two days after his release, prior to reporting within 72 hours of his release to the U.S. Probation Office in the state of Washington, where he will serve his term of supervised release. If the Court acts quickly, while Mr. Sanchez is still at FDC-Dublin, he can be released from there.
7. In light of the foregoing, the parties respectfully request that the Court enter an order in accordance with this stipulation, as set forth below.
Dated: November 1, 2010 Melinda L. Haag United States Attorney Timothy Lucey Assistant United States Attorney
Dated: November 1, 2010 Judd C. Iversen Attorney ...