Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1987)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 849 F.2d 1477 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Psalm Alex MOREZ, Defendant-Appellant.

No. 87-1149.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 1988.Decided June 9, 1988.

Before JAMES R. BROWNING, ALARCON and NORRIS, Circuit Judges.


MEMORANDUM*

Psalm Alex Morez has appealed the denial of his motion under Rule 35(a), Federal Rules of Criminal Procedure, to correct his sentence. Morez contends that the district court erred in refusing to recommend that his federal sentence be served concurrently with a later imposed sentence of imprisonment by a state court judge on unrelated charges.

Morez was indicted for the crime of rape by a federal grand jury on December 18, 1985. He was arrested on the federal charge on February 16, 1986. On February 19, 1986, Morez was released on his own recognizance.

On August 26, 1986, he pled guilty in the District Court for the District of Arizona to the crime of assault with intent to commit rape pursuant to an agreement that he would not receive a prison sentence that exceeded four years. Morez was permitted to remain free on his own recognizance pending his sentencing hearing. The sentencing hearing was scheduled for October 6, 1986.

On September 20, 1986, prior to being sentenced on the federal crime, he was arrested by Coconino County law enforcement officers on September 20, 1986, for child abuse, sexual assault, and burglary.

Morez did not post bond on the state charges. Accordingly, he was held in custody pending disposition of the state charges.

On October 6, 1986, Morez appeared for sentencing in the district court on the federal charge pursuant to a writ of habeas corpus ad prosequendum. The district court sentenced Morez to serve a term of imprisonment of four years.

During the sentencing hearing, the district court was requested by defense counsel

not to consider any information related to those [state] charges at this time, because if Mr. Morez is to be adjudicated guilty on those charges, or to be punished for those charges, better left to the Coconino County Superior Court and not to this Court.

In response, the district court stated:

Mr. Morez, the Court agrees with your attorney that certainly the charges in Flagstaff are not something for this Court to consider because you are presumed to be innocent of those charges.

(Emphasis added).

The district court ordered the sentence to commence as of September 20, 1986, the date Morez was arrested and confined on the state charges. In this connection the court stated: "That will give credit to you for all the time thus confined other than the three days at the time of your initial arrest."

On January 21, 1987, Morez filed a motion to reduce the sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. In this motion Morez asked that his sentence be reduced to three years and four months "to reflect the court's original intention that the sentence begin as of September 20, 1986."

Morez asked for reduction on his sentence of 196 days to reflect

the 16 days between September 20 and October 6, the 120 days between October 6 and February 3, [the trial date of the state charges], the 30 days [anticipated] continuance of the trial date, and the [estimated] 30 days that would pass between his trial and sentencing. In addition, Mr. Morez would be entitled to receive seven days per month (or a total of 42 days) in good time if he were in federal custody during that time.

At the February 2, 1987 hearing on the motion to reduce the sentence, counsel for the Government and Morez's attorney agreed that the court's October 6, 1986 order that the four-year sentence commence on September 20, 1986 was invalid because "the Court was not entitled to give credit for confinement other than in connection with the charge for which the sentence was being imposed."

Morez's attorney argued that in view of the fact the court could not give him credit for the time served in state custody, the court could "reduce the sentence to reflect that intent."

The Court then asked counsel the following question:

If his sentence doesn't really begin until he's delivered to federal custody, would it be appropriate, and since we really don't know how long that's going to be, would it be appropriate to defer consideration of your motion until such time as he's delivered to federal custody to understand the full impact of whatever may have occurred.

Morez's attorney responded that he was bound by the 120-day time limits set forth in Rule 35. Counsel also stated:

As for whether it might be more appropriate to consider it in the future, probably in these circumstances it would because then we would know the exact impact of his stay in federal custody on his federal sentence. But we are not asking you to speculate about what will happen. We are just asking you to give him credit for the time he's already done.

(Emphasis added).

The Government opposed the granting of credit for the eight-month period that Morez might be required to spend in confinement in state custody prior to being sentenced. The Government pointed out that he had only been in custody "about six months at the present time." In fact, as of the February 2, 1987 hearing, the defendant had been in custody less than five months since his arrest on the state charges on September 20, 1986.

The Government also suggested to the court that Morez could file a petition under 18 U.S.C. § 2255, after his state court proceedings were terminated, to request credit for the time he was confined on the state charges. The Government further requested that the court, instead of reducing the present sentence,

wait to see what the resolution of the state matter is so that if there is credit given, he will not have a concurrent sentence, so to speak, with the state custody. And I believe that the four-year sentence that was imposed here is an appropriate sentence and that making the time concurrent with the state time that he is--he is pending at this point, pending trial as to make it concurrent and that that's inappropriate under the facts and circumstances of this case.

The district court responded as follows:

Well, let's see. I believe that four years was an appropriate sentence, and that if he had been confined at an earlier time than the date of sentence on that federal charge, that he should have the credit.

(Emphasis added). Thereafter, the district court took the motion to reduce the sentence under submission without making any statement of its intended decision.

On February 10, 1987, while the motion to reduce his sentence remained under submission, Morez was sentenced in state court to serve five years in prison. He was given credit for the 144 days he had spent in custody while awaiting sentence.

The state trial judge also stated:

The Court has no objection to said sentence of imprisonment being served in a federal facility. The defendant shall be given credit against the state sentence for any time served in the federal facility.

On March 5, 1987, the district court issued an order modifying the sentence imposed on October 6, 1986 to provide that Morez serve a term of imprisonment of three years and eight months and that the sentence should commence on the original sentencing date. The result of the modification was that Morez received four months credit for the period of time he was confined in state custody between October 6, 1986 and February 2, 1987, the date of the hearing on his motion for a reduction of his sentence.

On March 5, 1987, Morez filed a motion to correct the sentence pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. Morez requested that the court amend its judgment

to indicate that this court recommends that the federal sentence be served concurrently to the state sentence imposed upon Mr. Morez on February 10, 1987, and in addition that this court recommends that a state institution be designated as the place for Mr. Morez to serve his federal sentence.

This unverified motion was not supported by points and authorities nor a declaration or affidavit. In the March 5, 1987 motion Morez's counsel stated that he

[had] been informed by Richard Murray, Community Programs Manager for the Federal Bureau of Prisons, that Mr. Morez is in state custody and will be required to serve his state sentence in state custody before he can be returned to federal custody.

The motion indicated that oral argument was not requested. On May 13, 1987, the district court denied the motion to correct the sentence. On May 20, 1987, Morez filed a notice of appeal from the May 13, 1987 order denying his motion to correct the sentence.

Rule 35(a), prior to its amendment effective November 1, 1987, provided that

[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

Morez does not contend that the sentence was imposed in an illegal manner. Instead, he argues that the failure of the district court to "correct" the judgment to recommend that the federal sentence should be concurrent with the state-imposed imprisonment, so that Morez can receive credit for the total time he spends in state custody, "is completely contrary to the judgment of October 6, 1986."

We review de novo the question whether a sentence is illegal. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 107 S. Ct. 1309 (1987). We have previously determined that a sentence is illegal if it is not authorized by the judgment of conviction, exceeds the statutory penalty for the crime, or violates the constitution. Id. Morez pled guilty to the crime of assault with intent to commit rape in violation of 18 U.S.C. § 113(a). The punishment for that crime in 1986 was imprisonment for not more than twenty years. The sentence ultimately imposed by the district court was three years and eight months. This sentence is authorized under 18 U.S.C. § 113(a) for a conviction for assault with intent to commit rape and did not exceed the twenty-year maximum. No claim has been made that the sentence was imposed in violation of the federal constitution. Thus, the sentence imposed by the district court was legally correct under Rule 35(a).

Morez does not appear to quarrel with the legality of the sentence of three years and eight months he received in response to his Rule 35(b) motion to reduce his sentence. In fact, he did not appeal from that order. Instead, relying solely on Shabazz v. Carroll, 814 F.2d 1321 (9th Cir. 1987), Morez argued in his opening brief that this court has the jurisdiction

to specifically direct that the District Court should recommend that Mr. Morez's federal sentence be served concurrently with the state sentence, and that the state facility be designated as the place for Mr. Morez to serve his federal sentence.

In our original opinion in Shabazz, we held that this court could order that time spent in state prison should be credited against a prisoner's federal sentence, to carry out the state court judge's intention that the sentences should be served concurrently, when the state authorities fail to return the prisoner to federal custody until he had completed his term in state prison. Id. at 1323-24. Shabazz was decided on April 10, 1987. On November 25, 1987, we vacated the portion of the opinion relied upon by Morez. We explained our modification as follows:

That portion of the opinion entered herein on April 10, 1987, 814 F.2d 1321, that gives Shabazz credit for time spent in state prison against Shabazz's federal sentence is vacated. This court lacks jurisdiction to grant such relief.

Shabazz v. Carroll, 833 F.2d 149, 149 (9th Cir. 1987). As a result of this modification of the opinion in Shabazz we cannot fashion the relief requested by Morez.

Morez contends that the district court intended that his federal sentence be served concurrently with his state sentence. The present record does not support this assertion. As described above, at the hearing on the motion to correct the sentence the trial judge stated that his intention in ordering that the original four-year sentence begin on September 20, 1986 was based on his mistaken impression that Morez had been in custody since that date "in connection with this charge." It should also be noted that on the original sentencing date in the district court, Morez had not been tried or sentenced on the state charges.

The district court did not state its reasons for reducing the punishment to three years and eight months from the original four-year sentence. As noted above, the time between the original sentencing proceedings (October 6, 1986) and the hearing on the motion to correct the sentence (February 2, 1987) was approximately four months. At the hearing on February 2, 1987, the parties agreed that the sentence imposed on October 6, 1986 was illegal because credit cannot be given on a federal sentence for time spent in confinement on unrelated state charges. In recommending a reduced sentence Morez's counsel stated, "We are not asking you to speculate about what will happen. We are just asking you to give him credit for the time he's already done." (Emphasis added). Thus, in reducing the sentence to three years and eight months, the court appears to have granted this request. The court took into consideration the total time Morez had spent in custody prior to the filing of the motion to correct the sentence. The court rejected the request that Morez be given credit for an additional four months that might elapse before he was sentenced on the state charges.

On the present record it would appear quite clear that the district court did not intend to recommend a concurrent sentence. It is not clear to us, however, whether the court intended that Morez spend more than a total of four years in custody from October 6, 1986, the date of the original sentence.

Morez's Rule 35(a) motion was unsupported by a factual showing to support his claim that a Federal Bureau of Prisons official informed his attorney that Morez will be required to serve his state prison time before being returned to federal custody. There is also no evidence in the present record to support the factual assertion in appellant's supplemental brief that " [t]he state authorities attempted to turn him over to the Federal Bureau of Prisons, which refused to pick him up."

We affirm the court's order denying the Rule 35(a) motion to correct the sentence because the punishment imposed was lawful. The district court did not abuse its discretion in refusing to recommend that the federal sentence run concurrently with the state prison sentence imposed on February 10, 1987.

We do not, in these Rule 35(a) proceedings, reach the question whether any attempt by the Federal Bureau of Prisons to confine Morez longer than three years and eight months from the date of October 6, 1986 may violate the district court's March 5, 1987 order. Our determination of this matter in its present posture is without prejudice to the filing for relief under 18 U.S.C. § 2254, after exhaustion of any applicable state remedies, or under 18 U.S.C. § 2255.

AFFIRMED