The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION TO CORRECT SENTENCE [DOCKET NO. 37]
Pending before the court is defendant Norman Frank Quiver's motion to correct his sentence pursuant to Fed. R. Crim. P. 35. For the foregoing reasons, the court denies the motion.
Mr. Quiver was originally charged by indictment with assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. The charge stemmed from Mr. Quiver's beating of his girlfriend, Linda Lorraine Doyle, on February 20, 2010. Mr. Quiver's beating resulted in Ms. Doyle receiving a broken nose, a broken arm, and a black eye, among other injuries. At the time of the assault, Mr. Quiver and Ms. Doyle had one child together, an infant. By the time or shortly thereafter that federal charges were asserted against Mr. Quiver, Ms. Doyle discovered that she was pregnant again with Mr. Quiver's child. She reported that she and Mr. Quiver had reconciled.
Mr. Quiver was detained on the charges contained in the indictment from the time of his arrest on May 20, 2010. That detention continued throughout the pretrial phase of his case up to his sentencing on October 15, 2010.
Pursuant to a written plea agreement, Mr. Quiver pleaded guilty to two petty offense charges of assaulting by striking, beating or wounding and simple assault, in violation of 18 U.S.C. §§ 113(a)(4) and (5) and 1153. The maximum term of incarceration for either charge was six months. The plea agreement contained a written, non-binding, recommendation for sentencing whereby both parties agreed that Mr. Quiver should receive two six-month sentences of imprisonment to run consecutively, resulting in a total imprisonment of one year.
On October 15, 2010, this court sentenced Mr. Quiver to six months incarceration on count one of the information, and to two years probation on the second count of the information. The court recommended, but did not require, that the Bureau of Prisons not give Mr. Quiver credit for the time he served while in pre-trial detention--a period of approximately five months.
Mr. Quiver's counsel took issue with the court's recommendation in this regard at the sentencing hearing. He now moves the court to correct its judgment of conviction to remove the recommendation.
Mr. Quiver relies in his motion on two legal authorities: 18 U.S.C. § 3585(b) and United States v. Beston, 936 F.2d 361 (8th Cir. 1991). Neither are availing.
Section 3585(b) provides that a defendant "shall" receive credit for pre-trial detention on the charges on which he was sentenced, under certain specified circumstances. On the surface, this would seem to favor Mr. Quiver's argument. However, in a decision that has been of record for nearly two decades, the United States Supreme Court has interpreted § 3585(b) to deprive district courts of the authority to award credit for time served. United States v. Wilson, 503 U.S. 329, 334-35 (1992).
From 1966 until 1987, the federal statutes were clear that the Attorney General, through the Bureau of Prisons, had the sole authority and responsibility to award credit for time served. Id. at 331-32. Then, in 1987, Congress passed the Sentencing Reform Act, which contained the current version of § 3585(b).*fn1 Id. at 332. Notably, the new statute, unlike the old statute, does not specifically mention the Attorney General as the party who has the sole authority to award credit for time served. Id. As the Wilson Court noted, this created a split of authority among the circuits as to whether district courts were now empowered to determine and award credit for time served. Id. at 332-33.
It was during this interim period prior to the Wilson decision, that the Eighth Circuit decided United States v. Beston, 936 F.2d 361 (8th Cir. 1991), holding that the new § 3585(b) gave concurrent authority to both district courts and the Attorney General to award credit for time served. The Beston decision was overruled in this regard by the Wilson decision. As the Wilson Court unequivocally stated, "we conclude that § 3585(b) ...