United States District Court, D. Minnesota
Benjamin Bejar, Assistant United States Attorney, United
States Attorney's Office, Minneapolis, MN, on behalf of
Patrick L. Cotter, Esq., Sieben & Cotter, PLLC, South St.
Paul, MN, on behalf of Defendant Robert Hugh Wilson.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Robert Hugh Wilson's
(“Wilson”) Motion for Modification of Sentence
[Docket No. 342]. Wilson requests that his sentence be
modified or corrected to include credit for time he spent in
federal custody while his federal case was pending. For the
reasons set forth below, Wilson's Motion is denied.
November 18, 2014, a grand jury returned a five-count
Indictment against Wilson and eight co-defendants. Indictment
[Docket No. 18]. Wilson was charged with with one count of
conspiring to distribute 50 grams or more of methamphetamine
actual (Count I) and one count of possession with intent to
distribute 50 grams or more of methamphetamine actual (Count
was arrested on September 6, 2014 for the offense conduct,
and was initially detained in state custody on a revocation
of his supervised release for a 2012 state felony drug
conviction. Presentence Investigation Report
(“PSR”) at F.1, ¶¶ 36, 90, 92. On
November 20, 2014, after being federally indicted, Wilson was
transferred to federal custody pursuant to a writ of habeas
corpus. PSR at F.1, ¶ 36; Writ [Docket No. 27]; Executed
Warrant [Docket No. 74].
January 13, 2015, Wilson entered a plea of guilty to Count I
of the Indictment pursuant to a Plea Agreement. Min. Entry
[Docket No. 160]; Plea Agreement [Docket No. 161]. In the
Plea Agreement, the parties agreed that Wilson's advisory
Sentencing Guidelines range was 130 to 162 months'
imprisonment. Plea Agreement ¶ 5.f. This Guidelines
range matched the range calculated in the PSR prepared by the
U.S. Probation Office. PSR ¶¶ 3, 129, 131.
19, 2015, approximately six months after he was transferred
to federal custody, Wilson was sentenced to 124 months'
imprisonment. Sentencing J. [Docket No. 211] at 2; Hr'g
Tr. [Docket No. 340] at 11. The sentence represented a
six-month downward variance from the bottom end of the
advisory Guidelines range. The Court stated it would
recommend that Wilson's federal sentence be served
concurrently with his current state court sentence. Hr'g
Tr. at 12. The Court further stated that Wilson was to
receive credit for time served, but clarified that
“[t]he Bureau of Prisons will deal with the issues of
what part of your sentence has been federal custody.”
now moves to modify his sentence under Federal Rule of
Criminal Procedure 36. He argues that the Court ordered at
sentencing that credit for the time served would be applied
to his 124-month sentence, and that the sentencing judgment
mistakenly omitted the custody credit.
Court lacks authority to grant Wilson's Motion. The
determination of a defendant's credit for time spent in
official detention is made by the United States Attorney
General after a defendant is sentenced, not by a district
court at sentencing. United States v. Wilson, 503
U.S. 329, 333 (1992); United States v. Moore, 978
F.2d 1029, 1031 (8th Cir. 1992). The Attorney General has
delegated its authority to compute the credit to the federal
Bureau of Prisons (“BOP”). Moore, 978
F.2d at 1031 (citing 28 C.F.R. § .096). If a defendant
believes the BOP has miscalculated his custody credit, he is
entitled to administrative review of the computation.
Wilson, 503 U.S. at 335; United States v.
Tindall, 455 F.3d 885, 888 (8th Cir. 2006) (citing 28
CFR §§ 542.10-542.16). After properly exhausting
these administrative remedies, a defendant may seek judicial
review by filing a petition for a writ of habeas corpus under
28 U.S.C. § 2241. Id.
the BOP, rather than the district court, is responsible for
computing the ...