United States v. Zeno
In United States v. Zeno, No. 23-30651 (5th Cir. May 6, 2024) (unpublished), the Fifth Circuit vacated the defendant’s sentence and remanded his case for resentencing because the district court had miscalculated the amount of time already spent in state custody, which would not be automatically credited by the Federal Bureau of Prisons. See USSG § 5G1.3.
Background: Zeno spent 20 months in state custody for possession of a firearm as a convicted felon, after which he was sentenced to “eight years of hard labor.” After that state sentencing, Zeno was federally indicted for the same conduct under 18 U.S.C. § 922(g)(1). Before his federal sentencing, Zeno filed a memorandum “requesting that the district court reduce his sentence under § 5G1.3(b) by 20 months—the amount of time he spent in state custody.”
At sentencing, the district court started at the upper end of the Guideline range (27 months), then subtracted 5 months pursuant to § 5G1.3(b), resulting in a final sentence of 22 months. The court chose a 5-month reduction because of the time Zeno was held in federal, not state, custody.
Issue 1: Did Zeno preserve his argument about the calculation of time in state custody even though he did not object at his sentencing hearing? Held: Yes.
Zeno sufficient preserved the issue in his sentencing memorandum, and at sentencing, the district court acknowledged that it had reviewed that memorandum. That was “sufficient to put the district court on notice of the argument and thus preserve the issue for appeal, even if Zeno did not explicitly renew his position at the sentencing hearing.”
Issue 2: Did the district court calculate the Guidelines range correctly? Held: No.
Only the Attorney General, through the Bureau of Prisons, may calculate and award credit toward a federal sentence. United States v. Taylor, 973 F.3d 414, 418–19 (5th Cir. 2020). “But if the Bureau of Prisons will deny a defendant credit, U.S.S.G. § 5G1.3(b) permits a sentencing court to reduce a defendant’s sentence based on previous time served if the offenses are related.”
A district court may decline to reduce a sentence under § 5G1.3, but it is not free “to just avoid § 5G1.3(b) altogether without considering it in its sentencing determination.” Here, the district court indicated that it had considered § 5G1.3(b), but “it did not calculate the guidelines range correctly before making its sentencing decision.” Here is the key portion of the court’s legal analysis:
“At sentencing, the district court stated that there were only ‘five months that BOP will not credit’ to Zeno, pointing to the five-month period that Zeno was held in federal custody. Such calculation does not account for the 20 months that Zeno served in state custody for the same offense. This time would not have been credited by Bureau of Prisons because it was ‘already credited toward a state sentence.’ Smith v. McConnell, 950 F.3d 285, 288 (5th Cir. 2020) (citing Stevens v. United States, 470 F. App’x 303, 303 (5th Cir. 2012)).”
The district court’s incorrect calculation was procedural error, and it was not harmless, because it “influenced the district court’s sentencing determination.” So the court vacated Zeno’s sentence and remanded his case for resentencing.