United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
GUISEPPE D'ANNA'S MOTION TO ALLOW CREDIT FOR SIXTY
(60) DAYS SERVED IN HIS RELATED STATE CONVICTION
Page Hood Chief Judge.
October 18, 2016, Defendant Guiseppe D'Anna filed the
instant Motion to Allow Credit for Sixty (60) Days Served in
His Related State Conviction. The Government filed a response
opposing the motion on October 25, 2016 and Defendant filed a
reply on November 2, 2016. Defendant waived oral argument in
his reply brief.
entered into a Rule 11 Plea Agreement with the Government on
April 6, 2016. (Doc. No. 96) A Presentence Report was
prepared by the Probation Department. The parties had the
opportunity to review the Report, submit sentencing memoranda
and argue their respective positions before the Court. The
Court determined the guideline range at 33 to 41 months of
imprisonment. The Government recommended a 33 months term of
imprisonment, while the defense recommended a term of
probation. On October 17, 2016, the Court sentenced Defendant
to a 16-month term of imprisonment. Defendant now seeks to
“clarify” whether or not the Court considered
U.S.S.G. § 5K2.23 in its variance at sentencing. If not,
Defendant requests that the Court further depart downward an
additional 60 days from the 16-month term of imprisonment
imposed by the Court.
Court notes that Defendant did not expressly request a
downward departure under § 5K2.23, although Defendant
sought a variance from the guideline range to a term of
probation. None of the submissions filed by the parties
expressly raised a downward departure under by the parties in
any of its papers or at any of the sentencing hearings.
Neither the Presentence Report nor the objections thereto
expressly address a downward departure under § 5K2.23.
the Attorney General, through the Bureau of Prisons, and not
the district court, has the authority to grant credit for
time served under 18 U.S.C. § 3585(b). United States
v. Wilson, 503 U.S. 329, 333 (1992); United States
v. Sylvester, 289 F. App'x 860, 867 (6th Cir. 2008).
The Court is authorized to depart downward in certain
circumstances. In the instant motion, Defendant identifies
§ 5K2.23 of the United States Sentencing Guidelines
(2015) which provides:
A downward departure may be appropriate if the defendant (1)
has completed serving a term of imprisonment; and (2)
subsection (b) of § 5G1.3 (Imposition of a Sentence on a
defendant Subject to Undischarged Term of Imprisonment or
Anticipated Term of Imprisonment) would have provided an
adjustment had that completed term of imprisonment been
undischarged at the time of sentencing for the instant
offense. Any such departure should be fashioned to achieve a
reasonable punishment for the instant offense.
U.S.S.G. § 5K2.23. Section 5G1.3(b) provides for an
adjustment if a prior term of Imprisonment “resulted
from another offense that is relevant conduct to the instant
offense that is relevant conduct to the instant offense of
conviction under the provisions of subsections (a)(1),
(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct).”
U.S.S.G. § 5G1.3(b) (2015). The Court may then adjust
the sentence “if the court determines that such period
of imprisonment will not be credited to the federal sentence
by the Bureau of Prisons.” U.S.S.G. § 5G1.3(b)(1)
(2015). Departures under § 5K2.23 are discretionary.
United States v. Reeves, 226 F. App'x 234,
236-37 (6th Cir. Apr. 6, 2007).
Presentence Report provides that on October 27, 2011,
Defendant pled nolo contendere to Assault with a Dangerous
Weapon and Bribing/ Intimidating/Interfering with Witnesses
before the Sixteenth Circuit Court, Mt. Clemens, Michigan.
Defendant was sentenced on January 6, 2012 to 3 years of
probation, 60 days jail time, 90 days on tether, $32, 265.83
in restitution and $4, 399.17 in fines and cost. Defendant
satisfied his restitution obligation and was discharged from
probation on April 2, 2014.
offense before the state court is relevant conduct to the
charge before this Court. The Court did not make any express
determination as required under § 5G1.3(b)(1) whether
the Bureau of Prisons would not credit any of the time served
in the state court sentence to Defendant's federal
sentence since Defendant did not expressly request the Court
to depart downward under § 5K2.23 and make such a
finding. The Court, however, granted Defendant's request
to depart below the Guideline range (although not to the term
of probation he requested) by imposing a 16-month term of
imprisonment. The Court expressly imposed the sentence after
noting the factors the Court must consider under 18 U.S.C.
§ 3553(a). One of the reasons for the Court's
variance below the Guideline range was that Defendant had
served his sentence for the relevant Assault with a Dangerous
Weapon and Bribing/Intimidating/Interfering with Witnesses.
Although the Court did not expressly depart downward based on
§ 5K2.23, the Court's sentence took into
consideration Defendant's discharged sentence before the
state court, including the 60 days Defendant served in jail.
The Court finds that the sentence imposed is a reasonable
punishment for the crime Defendant pled guilty to and will
not further depart downward.
IT IS ORDERED that Defendant Giuseppe D'Anna's Motion
to Allow Credit for Sixty (60) Days Served in His Related
State Conviction (Doc. No. 104) is
GRANTED IN PART as to his request to
clarify, but DENIED IN PART as to his