Opinion
CASE NO. 05-20052.
July 30, 2007
ORDER
Before the Court is the Petitioner's Motion for Correction of Sentence Pursuant to 28 U.S.C. 2255, filed on July 10, 2007 (Doc. 32). Petitioner was Sentenced on September 11, 2006 to serve seventy (70) months in the United States Bureau of Prisons (BOP). This Court stated the sentence imposed would run concurrent with any undischarged state court time and credit for time served since February 8, 2006. February 8, 2006 was the date which Plaintiff's state sentence on charges stemming from the same conduct began. Judgment was entered by this Court on September 12, 2006.
Pursuant to the Bureau of Prisons, and 18 U.S.C. § 3585(b), the defendant can not receive doubled credit toward another sentence, which would include the time period of February 8, 2006 through September 12, 2006. See also United States v. Wilson, 503 U.S. 329 (1992). The Government advises it has no objection to an adjusted sentence being entered of 62 months and 28 days to achieve the Court's goal and intent at sentencing.
The Court finds that the BOP's calculation of Petitioner's pre-sentence custody credit fails to account for this Court's order that the federal and state sentences run concurrently. United States v. Smith, 318 F. Supp.2d 875 (D.C. Cal. 2004). Accordingly, Petitioner's Motion for Correction of Sentence Pursuant to 28 U.S.C. § 2255 is GRANTED. The Bureau of Prisons shall recalculate the length of Petitioner's federal prison term in the underlying federal criminal case to reflect pre-sentence custody credit for the period of February 8, 2006 through September 12, 2006.
IT IS SO ORDERED.