Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1990)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Saul PALACIOS-PAREDES, Defendant-Appellant.
No. 90-50656.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1991.* Decided Aug. 1, 1991.
Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.
MEMORANDUM**
Saul Palacios-Paredes appeals his sentence, imposed following conviction at a bench trial, for being a deported alien found within the United States, in violation of 8 U.S.C. § 1326. Palacios-Paredes contends the district court erred by finding it did not have the discretion to grant him credit for time served in state custody prior to his federal conviction. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Palacios-Paredes argues the district court had authority under 18 U.S.C. § 3585 to grant him credit for time served in state custody. We review de novo the district court's construction or application of a statute. United States v. Martinez-Jimenez, 864 F.2d 664, 665 (9th Cir.), cert. denied, 489 U.S. 1099 (1989). Section 3585 provides in relevant part:
A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited towards another sentence.
18 U.S.C. § 3585(b) (West 1990).
Palacios-Paredes' offense of conviction had not yet occurred when he was serving the time in state custody which he wants credited towards his federal sentence.1 Clearly, Palacios-Paredes was neither in state custody as a result of the offense of conviction nor was he held in custody after the commission of the offense of conviction. In addition, the time spent in state custody was entirely the result of a state matter unrelated to any federal action. Therefore, the district court was not at liberty to grant Palacios-Paredes credit for the time he spent in state custody between June 13, 1990 and July 13, 1990. See 18 U.S.C. § 3585.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
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
The stipulation of facts at the bench trial established only that Palacios-Paredes was deported from the United States on or about April 18, 1989, and that he was apprehended in Imperial County within the Southern District of California on or about July 16, 1990. The trial transcript reveals that Palacios-Paredes was arrested in Los Angeles on June 13, 1990, by officers of the Los Angeles Police Department on the ground that there was an outstanding bench warrant issued against him. Although the warrant was determined to have been cleared, the court held Palacios-Paredes in state custody for thirty days pending verification of his probation status. Upon his release from custody on July 13, 1990, Palacios-Paredes was held by the Immigration and Naturalization authorities and then voluntarily returned to Mexico. The indictment charged Palacios-Paredes with being a deported alien found in the United States on July 16, 1990. Palacios-Paredes attempts to characterize his presence in the United States on July 16, 1990 as part of a continuing presence in this country in violation of 8 U.S.C. § 1326, thereby establishing that his state custody between June 13, 1990 and July 13, 1990 occurred after the commission of the offense for which the sentence was imposed. Nonetheless, the stipulated facts at the bench trial contradict this view, establishing only that Palacios-Parades was found in the United States on July 16, 1990. In addition, Palacios-Paredes returned to Mexico between the time that he was held in state custody and his arrest on July 16, 1990, thus establishing a break in time between his April, 1989 entry and his presence in the United States on the date of his arrest
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