Nagib vs. Conner, (5th Cir. 1999)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40450 KAREEM A. NAGIB, Petitioner-Appellant, VERSUS N.L. CONNER, EDWARD CROSLEY, and UNITED STATES BUREAU OF PRISONS, Respondents-Appellees. Appeal from the United States District Court for the Eastern District of Texas (5:97-CV-252) August 13, 1999 Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge: * Kareem Nagib appeals the denial of his petition fo r writ of habeas corpus and declaratory judgment. Finding him entitled to some sentence credit for time spent in unofficial detention, we REVERSE and RENDER judgment granting a sentence credit of fifty-two days.

I. Police arrested Nagib in Wi sco nsin in September 19 89 for conspiracy to possess with intent to distribute narcotics. He was detained in federal custody at the cou nt y jail.

At a detention hearing in late September 1989, he requested release on bond to Forest Hospital, a private health-care facility, for treatment of drug addiction and depression.

The magistrate judge requested that the federal probation office investigate whether the proposed facility was a proper and secure facility for Nagib pending trial, and on November 1, 1989, the magistrate judge ordered NagibÂ’s release to Forest Hospital.

The order, entitled “Order: Conditio n al Release,” states that Nagi b “shall be released on his own recognizance subject to the following conditions,” including that the U.S. Marshal must transport Nag ib to Forest Hospital and retri eve hi m for court appearances. The order refers to Nagib’s “‘voluntary’ admission” to Forest Hospital and states that he “i s o rdered to remain in the program of said Forrest [sic] Hospital until he is discharged or until the further order of this court” and that if h e is discharged, “the U.S. Marshal is directed to b e present . . . and to * Pursuant to 5 TH C IR. R. 47.5, the c ourt has determined that this opinion should not be p ublished and is not precedent except under th e limited circumstances set forth in 5 TH C IR . R. 47.5.4. deliver the body of defendan t Nagib as directed by the court.” More than four months afte r he entered Forest Hospital, Nagib, on March 9, 1990, was convicted of conspiracy with intent to deliver narcotic s, an offense with a statutory minimum term of incarceration. Nonetheless, on March 14, the distr i ct court granted Nagib’s motion to continue his treatment at Forest Hospital pending sentencing. More than five months later , on Septem ber 28, Nagib was sentenced to 235 months’ im prisonment. Again, the court ordered that he be returned to Forest Hospital pending classification by the Bu r eau of Prisons. The court eventually ordered Nagib’s release from Forest Hospital, and, on November 20, 1990, he was taken into federal cu stody and transported to the Federal Medical C e nter in Rochester, Minnesota. In all, he spent 368 days at Forest Hospital, almost eight months of which was after his con vict ion. He spent 52 days at Forest Hospital after he was sentenced.

At sentencing, the court told Nagib he would receive credit toward his sentence for the time he spent at Forest Hospital. 1 Indeed, he init ially was credited with that time, but the government “recomputed” his sentence in July 1 994, to remove the credit. He was resentenced in 1993 to 151 months’ imprisonment under amendments to the Sentencing Guidelines, resulting in a release date of August 31, 2000. He contends that his sentence should be credited with the 368 days he spent at Fore st Hospital and, accordingly, that he should be released on August 28, 1999.

Nagib filed this habeas petition under 28 U.S.C. § 2241, arguing that the denial o f credit for the time he spent at Forest Hospital violates h is due process rights and that the retroactive appli cati on of R eno v. Koray , 515 U.S. 50 (1995), violates the ConstitutionÂ’s prohibition of ex post facto laws. 2 The district court refe rred the case to a magistrate judge, who issued a report and recommendation on February 22, 1999. The district court adopted the magistrate judgeÂ’s report and denied relief.

II. Pursuant to 18 U.S.C. § 3585, which was enacted as part of the Sentencing Reform Act of 1984 and became eff ect ive in 1987, a defendant is awarded credit for any time spent in “official detention.” 3 The Bureau of Prisons 1 The f ollowing conversation occurred at the sentencing hearing: MR. ZIEVERS [Na gibÂ’s counsel]: Your H onor, would there be—anothe r bookkeeping matter, would there be any entitlement to sentence credit at this point? THE COURT: That is automatically given, Mr. Zievers; so, yes, you will receive it with or without an order of the court.

MR. ZIEVERS: I’m—obviously if he was in Racine [jail], i t wouldn’t be a question; but I don’t want any confusion. He was in detention housed at Forest Hospital.

THE COURT: WeÂ’ll, if you want to send my clerk a letter Monday detailing the (continued...) (...continued) language that you would l ike in the formal judgment and c o mmitment order, I think itÂ’s appropriate since the defendant has been in effect in custody since his arrest.

MR. ZIEVERS: Thank you, Your Honor. 2 Nagib does not appeal the dismissal of his claim regarding the ex post facto application of Koray , bu t he does argue that the fact that the decision came a fter his bail hearings supports his contention that his right to due process has been infringed. 3 B efore 1987, a defendant was entitled to § 3568 (1982) (repe aled in 1984) (continued...) issued a program statement in 1992 providing that [t]ime spent in a community corrections center . . . . is not creditable as presentence time. A condition of bail or bond which is ‘highly restrictive,Â’ and that includes ‘house arrest,Â’ ‘electronic monitoring,Â’ or ‘home confinementÂ’ . . . is not considered as ti me in official detention.

Bureau of Prisons Program State ment 5880.28(c) (internal policy statement). In Koray , 515 U.S. at 64, the Court app ro ved the Bureau of Prisons's conclusion that time spent by a defendant at a community treatment center while § 3585.

Koray thus fore c loses any argument that Nagib's time at Forest Hospi t al comprised § 3585. 4 Precluded from directly attacking the governmentÂ’s refusal to credit his sentence, Nagib argues that he wa s either misinformed or uninformed regarding the consequences of his bail elect i on and that this lack of information violated his due process rights.

He bases his argument on Justice Ginsburg's concurring opinion in Koray , in which she explained: (...continued) (emphasis added). 4 In Koray , the Court con sidered a defendant who was r eleased to a Volunteers of America community treatment center pending sentencing for money launderin g , but whose § 3585(b), on the other hand, provides both it and the defendant with cl ear notice of the c onsequences of a § 3142 ‘releaseÂ’ or ‘detentionÂ’ (continued...) (...continued) order.” Id. at 64.

I write separately to po int out that Koray has not argued bef o re us that he did no t elect bail intelligently, i.e., with comprehension that time in the halfway house, unlike time in jail, would yield no credit against his eventual sentence.

T he Court thus does not foreclose the possibility that the fundamental fairness we describe as due “due process” calls for notice and a comprehension check.

Cf. Fed. Rul e Crim.

Proc. 11 (setting o ut information a court is to convey t o assu re that a defendant who pleads guilty understan d s the consequences of the plea).

Koray , 515 U.S. at 65 (Ginsburg, J., concurring). Nagib argued to the distri c t court, and asserts again on appeal, that at the time of his bail hearings he could not have known of the Bureau of Prisons's policy articulated in 1992 and the Koray decision in 1995, and that the court’s statement at the sente n cing hearing regarding sentencing credit led him to believe he would receive credit for the time he spent at Forest H ospit al. He contends that he has a due process right to clear notice of the consequences of electing a ‘release’ or ‘det ent ion’ order and that that right was vi o lat ed when the district court failed to inform him, when he init ially sought release to the con fined conditions of Forest Hospital, that he would receive no sentence credit for his time at the hospital.

III. A.

In rej e cting NagibÂ’s argument, the district court relied on Cucciniello v. Keller , 137 F.3d 721 (2d Cir. 1998). The defendant in that case had been released on bail, while he was a pretrial detainee, subject to a special condition of home confinement. The court said nothing at the bail hearing to indicate whether the period o f home confinement (both before and aft er conviction) would be credited agai nst any subsequent s entence. S ee id. at 722. The governme n t later refused to credit the sentence, and the de fendant sought habeas relief, arguing that his due process rights had been infringed because he was not informed at the bail heari ng that he would not receive credit toward any future sentence. The defendant specifically invoked Justice GinsburgÂ’s concurring opinion in Koray . See id. at 724. Affirming the dismissal of the petition, the court stated: We have respectf ul ly considered the force of the possibility raised by Justice Ginsburg that due process might require notice to a pretrial detainee that release conditioned on home confinement wi l l not be credi t ed against a subsequent sentence and conclude that no such constitutiona l requirement exists . . . .

There is no relinquishment of any significant right when a defendant elects bail. The defendant accept ing the conditions of bail is simply trading jailtype confin ement for something less restrictive. Tho ugh [the defendant] accepted home detention, this degree of confinement was not imposed as a surrender of prior liberty; it was an upgrade to less restrictive confinement.

Id. The court determined that any opportunity th e defendant may have to shorten a laterimposed sentence “is too insub stanti al to be regarded as a liberty interest protected by the Due Process Clause” because, at the time the defendant elects conditional bail, “it is entirely speculative whether he will be convicted, and, if so, whether he will be sentenced to prison.” Id. We find Cucciniello 's reasoning persuasive, and we agree that any liberty interest a pretrial detainee has in getting an early start on a possible future sentence is too insubstantial to merit prot ect ion under the Due Process Clause. Accordingly, Nagib was no t denied due process when the distr i ct court failed to inform him, at his bail hearing, t hat elective c o nfinement at Forest Hospital would not be credited toward any subsequently imposed sentence. He is therefore not ent itled to sentence credit for t he time spent at Forest Hospital prior to his conviction.

B. After a defendan t is convicted of a crime for which th ere is a mandatory minimum sentence, a futu r e sentence is no longer “e nt irely speculative,” and C ucciniello 's reasoning no longer applies. We must thus determine whether Na gib had a due process right to be informed, at the time of conviction, that his post-conviction tenure at For est Hospital would not count toward his sentence.

We conclude that he did not have such a constitutional right.

To determine what procedures are required by due pro cess, we balance private versus government inte r ests. See Morrissey v. Brewer , 408 U.S. 471, 481 (1972). Nagib contends that due process requires that a defendant be informed, when convicted, of the consequences of el ecting particular confinement options. The interests at stake are the defendant's interest in intelligently electing or declining to elect bail and the court's interest in avoiding the requirement to spell out for defendants all the implications of their bail election decisions. Given the heavy burden such a requirement would place o n courts, which already must provide a host of technical protections, and the fact that defendants could easily ask the court about sentencing credit (as Nagib finally did at his sentencing hearing), we do not believe the Due Process Clause places an affirmative duty on courts to inform convicts of the sentencing implications of their decisions regarding bail.

Accordingly, the court did not violate Nagib's due process rights in failing to inform him, when he was convicted, that any additional time a t Forest Hospital would not count toward his sentence. He is thus not entitled to credit for all the tim e he spent at Forest Hospital after his conviction.

C. B ut Nagib does not claim merely that the court violated his due process rights in failing to inform him that he would not receive sentence credit for his time at Forest Hospital; he als o notes that the court a ffirmatively misinformed him at his sentencing hearing that he would receive such credit. He claims that the court's misrepresentation violated his right to due process and that he should thus get sentence credit for his time at Forest Hospital.

We agree that the Du e Process Clause guaran t ees a defendant's right not to be affirmat ively misinformed of t he sentencing implications of his decisi o n to elect unofficial detention. “Litigants need t o be able to trust the oral pronouncements of dist r ict court judges,” Unite d States v. Buchanan , 59 F.3d 914, 918 (9th Cir. 1995), 5 and requiring district courts t o refrain from providing mis information, unlike affirmatively requiring them to provide information, does not impose a significant burden. Accordingly, Nagib's due process right s were violated when the court misinformed him that h e wo uld receive sentence credit, and he is therefore entitled to some relief.

Nagib asserts that he should get credit for his entire tenure (368 days) at Forest Hospital.

The sentencing court's misrepresentation concerning credit did not occur, however, until near the end of Nagib's st ay at t he hospital.

He thus did no t rely on this misstatement in 5 In Buchanan , a defendant entered into a plea agr eement in which he waived the right to appeal sentencing findings, yet when he appeared in court to enter the plea, the court stated twice that he did have a right to appeal the findings. 59 F.3d at 916-17. The government did not object to those statements when they we re made. The Ninth Circuit held the plea waiver unenforceable because the distri ct court's clear statements trumped the waiver language in the written agreement in light of the government's failure to object, and because “[l]i tigants need to be able to trust the oral pr onouncements of district court judges.” I d. at 918. In the case at hand, the government did not object to the sentencing court's assertion that Nagib would receive sentence credit for his time at Forest Hospital. See also United States v. Amaya , 111 F.3d 386, 387 (5th Cir. 1997) (vacating guilty plea entered in reliance on false promise that court had authority sua sponte to depart downward for substantial assistance). electing bail, and he is not entitled to credit for days s pent in Forest Hospital before the m isrepresentation. Instead, he is entitled to credit for the fifty-two days he spent in Forest Hospital after the court told him he w o uld receive sentence credit. Nagib elected to ret urn to Forest Hospi tal while he waited for the Bureau of Pri sons to take h im int o custody, and his decision to do so was surely influenced by the m isrepresentation regarding sentence credi t .

Fundamental fairne ss thus dictates that he receive credit for the fifty-two days he spent at Forest Hospital after his sente ncing hearing.

We therefore REVER SE the judgment that Nagib is e n titled to no credit for his time at Forest Ho spital and RENDER a judgment granting him fifty-two days of sentence credit.

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