Unpublished Disposition, 862 F.2d 875 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 862 F.2d 875 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.William F. REYNOLDS, Defendant-Appellant.

No. 87-1399.

United States Court of Appeals, Ninth Circuit.

Submitted*  Oct. 4, 1988.Decided Nov. 10, 1988.

Before TANG, DAVID R. THOMPSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Reynolds appeals the district's court's denial of his Rule 36 motion requesting credit for time he spent in a residential drug treatment program on a pre-sentence basis. In denying the motion, the court noted that the question of sentencing credits is a matter of discretion for the Bureau of Prisons, and not the court. We have jurisdiction under 28 U.S.C. § 1291. Because we agree that Reynolds has not exhausted his administrative remedies, the judgment of the district court is affirmed.

II

The appellant, William F. Reynolds, was charged with five counts of armed bank robbery, in violation of 18 U.S.C. § 2113, in an indictment filed October 19, 1984. On December 4, 1984, the District Court filed an Order which reduced Reynolds' bail from $50,000 to $25,000 and which also included the following conditions:

(2) the defendant shall reside in Walden House;

(3) the defendant shall obey all rules and regulations of Walden House;

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(5) the defendant shall under no condition leave Walden House without prior authorization of this Court.

Reynolds posted bail and was released to Walden House, a residential drug treatment center.

On March 5, 1985, a Judgment and Commitment Order was filed, finding Reynolds guilty of two counts of armed bank robbery, as charged in Counts Two and Three of the indictment. Reynolds was sentenced to ten years on each count, the sentences to run concurrently. On March 18, 1986, the district court filed an Order granting Reynolds' Motion to Modify Sentence Pursuant to Fed. R. Crim. P. 35. The sentence on Count Two was reduced from ten years to five years. The sentence on Count Three was suspended and Reynolds was placed on probation on Count Three for a period of five years, the probation to run consecutively with the sentence on Count Two.

On November 10, 1987, Reynolds filed a Motion pursuant to Fed. R. Crim. P. 361  requesting that he be given credit for the 90 days that he spent at Walden House prior to sentencing. The district court filed an Order on November 18, 1987, denying Reynolds' Motion, ruling that

[t]he matter of granting credit for time spent in half-way houses and like institutions is in the discretion of the Bureau of Prisons and not this Court.

On December 9, 1987, the district court filed an Order denying Reynolds' motion to have the court reconsider its decision.

The question of inmates receiving credit towards their sentence is considered in 18 U.S.C. § 3568, which states in pertinent part:

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 penitentiary, reformatory, or jail for service of such sentence. 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.

The Ninth Circuit, in interpreting Sec. 3568 has ruled that the question of giving credit for time previously served is a matter of discretion for the Attorney General, not the courts. United States v. Derry, 814 F.2d 1406 (9th Cir. 1987); see also United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir. 1979) ("It is the administrative responsibility of the Attorney General, the Department of Justice, and the Bureau of Prisons to compute sentences and apply credit where it is due. It is not the province of the sentencing court.")

For example, in Chua Han Mow v. United States, 730 F.2d 1308 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985), a prisoner was seeking to be awarded sentencing credit for time previously served. The prisoner had not exhausted his administrative remedies through the Bureau of Prisons as set out in 28 C.F.R. Secs. 542.10-542.16. The Ninth Circuit concluded that

This is exactly the type of case in which exhaustion of administrative remedies should be required. There has not been the development of a factual record which would enable this court to review the Bureau's decision. 730 F.2d at 1313-14.

Thus, it is well-settled that a federal prisoner must first exhaust administrative remedies before requesting that a court award credit for time previously served. Not only is there no indication in the record that Reynolds has exhausted his administrative remedies, but there is no indication that Reynolds has even begun the process. Even if a court were inclined to reach Reynolds' claim on the merits, the record before the court is insufficient.

AFFIRMED.

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The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Since the purpose of Rule 36 is merely to allow for the correction of "clerical errors," it is apparent that this rule cannot really be the basis for Reynolds' claim. See United States v. Kaye, 739 F.2d 488 (9th Cir. 1984)