Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Carmen Gomez, Defendant-appellant, 940 F.2d 663 (6th Cir. 1991)

This is an appeal by a defendant who pled guilty under a Rule 11 agreement to possession of 10 grams of heroin. At the time of the guilty plea the defendant was serving a state sentence. Under the agreement the district court sentenced the defendant to a 12-month period of incarceration to be served consecutive to the state sentence then being served. At sentencing the defendant argued that he should be given approximately 9 months credit on his federal sentence because he had been in federal custody since the date of his arraignment without an opportunity to post bond. The district court rejected this argument and refused to give credit for the period between the date of arraignment and the date of sentencing.

The defendant waived oral argument and the case was submitted on briefs. Upon consideration of the briefs of the parties, together with the record on appeal, we conclude that the district court properly rejected the defendant's contention. The defendant was brought to federal court for arraignment on May 8, 1989, pursuant to a writ of habeas corpus ad prosequendum. After a preliminary examination on May 15, 1989, the defendant was again remanded to state custody where he remained until pleading guilty in November 1989. Sentencing took place in February 1990. The only sense in which the defendant was in federal custody in May 1989 rested on the fact that he was brought to federal court for a preliminary hearing pursuant to the habeas corpus writ. If it had not been for the writ, he would have been in state custody the entire time and even if bailed pending trial on the federal charges, would not have gained his liberty. The defendant has received credit against his state sentence for his time in federal custody during federal court proceedings and he is not entitled to double credit for his pre-trial confinement.

The judgment of the district court is affirmed.