Unpublished Disposition, 930 F.2d 31 (9th Cir. 1991)

MEMORANDUM^* 

Octavio de Jesus Zapata appeals his sentence after pleading guilty to one count of conspiracy to possess with intent to distribute and conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846. Zapata argues that the district judge erred by not reducing his federal sentence for time served in a state prison on narcotics charges stemming in part from the same events upon which the federal charges were based. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the sentence.

BACKGROUND

On February 12, 1986, Zapata was arrested in Miami and taken into custody by officers of the Metro-Dade Police Department for possession of 35 kilograms of cocaine. He entered a conditional guilty plea to state narcotics possession charges, and was sentenced to 15 years in Florida state prison. The appellant was in state prison for some 15 1/2 months, from the date of his arrest until May 28, 1987, at which time he was transferred to federal custody for arraignment on federal drug charges. The federal charges resulted from a coordinated federal, state and local undercover investigation, named "Operation Pisces," that was aimed at the Medellin drug cartel and its American connections.

On October 19, 1987, Zapata pleaded guilty in U.S. District Court to Count One of the First Superceding Indictment, charging him with conspiracy to possess and to distribute cocaine, conspiracy to aid and abet the same, and conspiracy to use a communication facility in furtherance of narcotic trafficking activity. In addition to possessing the 35 kilograms of cocaine upon which the Florida state charges were based, Count One alleged that Zapata and a codefendant "supervised the distribution of cocaine in Miami, Florida" for the cartel, and that he delivered $100,000 to an undercover agent for laundering.

At the sentencing hearing on January 4, 1988, Zapata's counsel argued that it would constitute double jeopardy to sentence the appellant to a term longer than that imposed by the state court, which, with allowances for good time credits, would amount to "somewhere between seven and eight years." The judge rejected that argument, and sentenced the appellant to 15 years in federal prison, with the possibility of parole after five years. In the plea letter, the government agreed to "recommend that whatever sentence [Zapata] receives be concurrent to his Florida sentence." The judge adopted that recommendation, and the sentencing order, filed on January 13, 1988, states that the "sentence shall run concurrent to any other sentence now being served." The appellant filed a timely notice of appeal from that order on January 21, 1988.

On June 21, 1988, before taking any action on the appeal, the appellant filed a motion to correct the sentence under FRCrP 35(a). In that motion, the appellant alleged that the sentence was improper because it failed to award him time served for the 15 months of state incarceration. Zapata argued that "a truly concurrent sentence" would require such a deduction, and that the failure to reduce his federal sentence constituted double jeopardy. The district judge denied the motion. The appellant did not file a separate notice of appeal challenging the denial of the Rule 35(a) motion.

DISCUSSION

A. GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

Before addressing the merits of Zapata's claim, we must first consider the government's motion to dismiss this appeal for lack of jurisdiction. The government contends that the present appeal represents an appeal from the district judge's denial of Zapata's Rule 35(a) motion to correct the sentence. It argues that because Zapata did not file a notice of appeal following the denial of that motion, the legality of the sentence is not properly before us.

We disagree. As a purely factual matter, it is true that Zapata did not file a separate notice of appeal relating to the denial of his Rule 35(a) motion. It does not necessarily follow, however, that the issue of the propriety of the sentence has not been preserved for appeal. Zapata did file a timely notice of appeal after the entry of judgment and the imposition of his sentence. It is also true that the notice of appeal, filed January 21, 1988, purported to be an appeal "from the judgment of conviction entered of record herein on the 4th day of January, 1988." But the actual "judgment" was in fact a single court filing, signed by the district judge, and captioned "Judgment and Probation/Commitment Order." The one-page order both indicates that the appellant pleaded guilty to the narcotics charges, and sets forth the sentence imposed by the judge. We think that the appellant's timely notice of appeal from that order preserved his right to contest the legality of his sentence on appeal.

The record supports this conclusion. The appellant pleaded guilty to the charges, giving rise to a strong inference that his appeal was from the sentence. That inference is bolstered by the fact that Zapata's attorney argued at the January 4, 1988 sentencing hearing many of the same points that are raised in his brief to this Court. We think it is most reasonable to assume that the appellant's notice of appeal was an appeal from his sentence. The government has not pointed us to, and our research has not revealed, any requirement that a party who has filed a timely notice of appeal relating to his sentence must file a new notice following the denial of a Rule 35(a) motion. Accordingly, this Court therefore has jurisdiction to address the issue, and the government's motion to dismiss for lack of jurisdiction is denied.¹ 

B. FAILURE TO AWARD TIME SERVED FOR STATE INCARCERATION

The appellant's contention that the district judge erred in not awarding him credit against his federal sentence for the time he served in state prison rests on two main grounds: (1) because the state and federal cases arose out of "substantially similar conduct," a "truly concurrent" sentence requires that the judge award him time served; and (2) 18 U.S.C. § 3568 requires that the Court grant the award.²  This Court reviews the legality of a sentence de novo. United States v. Jones, 852 F.2d 1235, 1236 (9th Cir. 1988).

Both of Zapata's arguments are conclusively refuted by reference to the very statute he relies upon to support his claim. Section 3568 provides:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the [place of incarceration]. 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 sentence was imposed. As used in this section, the term "offense" means any criminal offense ... which is in violation of an Act of Congress and is triable in any court established by Act of Congress.

18 U.S.C. § 3568.³  We have long recognized that, under this section, a federal prisoner's term "may not begin to run until he is received by federal authorities." United States v. Myers, 451 F.2d 402, 405 (9th Cir. 1972). More recently, this Court, in reversing a district court's order, stated that it was "invalid because, by crediting time spent in state custody, it effectively began [the prisoner's] sentence before he was delivered to federal authorities. This violates 18 U.S.C. § 3568." United States v. Warren, 610 F.2d 680, 685 n. 9 (9th Cir. 1980). And if these cases leave any room for doubt, it is answered by reference to our opinion in Raines v. United States Parole Comm'n, 829 F.2d 840 (9th Cir. 1987), where, in response to a prisoner's contention that he was entitled to credit towards his federal parole sentence for time spent in Oregon state prison, we stated:

[T]here is no statutory provision that accords a prisoner credit against a federal sentence for time served in a state prison on a state charge. Appellant's reliance on 18 U.S.C. § 3568 is misplaced. It provides that the Attorney General give prisoners credit toward federal sentences for the days spent in custody in connection with the offense for which the federal sentence is imposed prior to the actual imposition of the sentence. It cannot serve as a basis for relief here.

Id. at 843; see also Tucker v. Carlson, No. 88-15568, slip op. 1341, 1346-47 (9th Cir. February 5, 1991).

As we noted in Raines, Sec. 3568 provides that the Attorney General shall award credit for time served only when the prior period of custody was "in connection with" an offense--which, by the statute's very terms, is limited to federal offenses. Zapata's prior incarceration in the Florida prison, resulting as it did from a violation of the state narcotics possession law, was not in connection with the federal offense. The appellant's argument that his state and federal charges were based on substantially similar conduct does not weaken the force of Sec. 3568. This argument is an attempt to ascribe to the word "concurrent" a peculiar meaning by conjuring the specter of double jeopardy. Zapata's state and federal charges, however, were for different substantive offenses (i.e. possession in state court, and conspiracy in federal), involved different underlying activities (money laundering was part of the federal count), and were obviously based on offenses against different sovereigns.

Stripped of its double jeopardy component, then, Zapata's argument reduces to the assertion that the sentencing judge was required to do what Sec. 3568 and the related case law plainly prohibited him from doing. That being the case, the sentence is AFFIRMED.