UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 97-4948

JAMES RAY STUBBS, JR.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CA-95-63-H)

Argued: May 8, 1998

Decided: June 24, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and

TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David J. Cortes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellant. Bobby Grey Deaver, West

Jefferson, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United

States Attorney, Raleigh, North Carolina, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendant, James Ray Stubbs, Jr., was indicted on October 18,

1995, for conspiracy, mail fraud, and wire fraud in connection with

his marketing activities while serving as president of Automotive

Guaranty Corporation, a North Carolina automobile warranty company. On July 31, 1996, Stubbs pled guilty to one count of mail fraud.

At the sentencing hearing, the district court determined that Stubbs'

guideline range was 18 to 24 months' imprisonment, but the court

departed downward and ordered the defendant to serve three years of

probation, be confined for four consecutive weekends, and pay a

$10,000 fine. J.A. at 42. The government appealed. We held that the

downward departures were unwarranted, and vacated and remanded

for "resentencing within the applicable guideline range of 18-24

months." J.A. at 45.

At the resentencing hearing on October 14, 1997, the district court

sentenced the defendant to 18 months' imprisonment, but ordered the

Bureau of Prisons to give the defendant credit against his prison time

for "time served and probationary restraints previously imposed" such

that defendant would be released "12 months and one day" from the

date of resentencing. J.A. at 62, 70. From the district court's order on

remand, the government appeals. We reverse.

The district court clearly erred in calculating the credit against sentence to which Stubbs was entitled and in ordering the Bureau of Prisons to reduce his sentence accordingly. Credit for prior custody is

governed by 18 U.S.C. § 3585(b), which states as follows:

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.

 2
Id. Although this section speaks in the passive voice, the Supreme

Court held in United States v. Wilson , 503 U.S. 329 (1992), that section 3585(b) "does not authorize a district court to compute the credit

at sentencing." Id. at 334. Rather, only the Attorney General, through

the Bureau of Prisons [BOP], may compute credit. Id. at 334-35.

Accordingly, the district court exceeded its power by computing and

ordering the BOP to award credit for time served. 1

Stubbs, presumably recognizing the strength of the government's

position, contends that, under United States v. Guevara, 941 F.2d

1299 (4th Cir. 1991), the government waived its right to appeal the

district court's order. In Guevara, the defendant had entered into a

plea agreement, whereby she waived her right to appeal her sentence.2

_________________________________________________________________

1 The defendant almost certainly is not entitled to a credit nearly as

large as that computed by the district court, in any event. The Supreme

Court held in Reno v. Koray, 515 U.S. 50 (1995), that a prisoner was not

entitled to credit against his term of imprisonment for the time that he

was "released" on bail pursuant to the Bail Reform Act of 1984 and confined to a community treatment center. Id. at 52. Although some of the

Court's reasoning was peculiar to the bail context, it noted more broadly

that,

credit for time spent in "official detention" under § 3585(b) is

available only to those defendants who were detained in a "penal

or correctional facility," § 3621(b), and who were subject to

[Bureau of Prison]'s control.

Id. at 58. The Court also observed that,

§ 3585(b) reduces a defendant's "imprisonment" by the amount

of time spent in "official detention" before his sentence, strongly

suggesting that the period of presentence "detention" must be

equivalent to the "imprisonment" itself. It would be anomalous

to interpret § 3585(b) to require sentence credit for time spent

confined in a community treatment center where the defendant

is not subject to BOP's control, since Congress generally views

such a restriction on liberty as part of a sentence of "probation"

. . . or "supervised release," . . . rather than part of a sentence of

"imprisonment."

Id. at 59 (citations omitted).

2 Stubbs' waiver of his right to appeal may have been even more comprehensive than the waiver at issue in Guevara , because it is clear that

Stubbs waived not only his right to direct appeal but also his right to any

postconviction relief. It is not clear whether the waiver in Guevara was

limited to direct appeal.

 3
We held that when the government requires a defendant to waive his

right to appeal (to achieve finality), the government implicitly waives

its own rights to appeal:

"[T]he government has added the waiver language to its

standard plea agreement precisely because it preserves the

finality of judgments and sentences imposed pursuant to

valid pleas of guilty." [United States v. Wiggins, 905 F.2d

51, 54 (4th Cir. 1991).] The finality of judgments and sentences imposed is no more preserved by appeals by the government than by appeals by the defendant, and it strikes us

as far too one-sided to construe the plea agreement to permit

an appeal by the government for a fancied mistake by the

district court as here, but not to permit an appeal on similar

grounds by the defendant, which Wiggins held to be precluded. That being the case, we are of the opinion that such

a provision against appeals must also be enforced against

the government, which must be held to have implicitly cast

its lot with the district court, as the defendant explicitly did.

Guevara, 941 F.2d at 1299-1300. See also United States v. Marin,

961 F.2d 493, 495 n.2 (4th Cir. 1992) (noting in dicta that the government could not appeal a certain error because the defendant had

waived his right to appeal and thus Guevara prevented the government from appealing).

The Guevara rule of reciprocity, however, does not bar the government's appeal in this case. Even when a defendant has waived his

right to appeal his sentence, we have said that he is still entitled to

appellate review of some sentencing errors:

We agree with [defendant] that a defendant who waives his

right to appeal does not subject himself to being sentenced

entirely at the whim of the district court. For example, a

defendant could not be said to have waived a right to appellate review of a sentence imposed in excess of the maximum

penalty provided by statute or based on a constitutionally

impermissible factor such as race.

Marin, 961 F.2d at 496. It was on this reasoning that, in United States

v. Broughton-Jones, 71 F.3d 1143 (4th Cir. 1995), we allowed a

 4
defendant who had validly waived her right to appeal her sentence to

challenge the legality of a restitution order on the ground that the

order exceeded the district court's authority under the Victim and

Witness Protection Act. Id. at 1146-47. As we explained:

Marin's language making waivers inapplicable to appeals

that challenge sentences as "imposed in excess of the maximum penalty provided by statute" is instructive. Appeals

challenging sentences of imprisonment that exceed the statutory maximum surely are such. Because a restitution order

imposed when it is not authorized by the VWPA is no less

"illegal" than a sentence of imprisonment that exceeds the

statutory maximum, appeals challenging the legality of restitution orders are similarly outside the scope of a defendant's

otherwise valid appeal waiver.

Id. at 1147.

Similarly did the district court in this case clearly exceed its authority by computing defendant's credit for time served and ordering the

BOP to reduce the defendant's sentence in accordance with that calculation. Reciprocity thus requires that the government be able to

appeal the legality of the district court's order, just as a defendant

would be allowed -- despite a valid waiver of his right to appeal --

to challenge the legality of a district court sentencing order in similar

circumstances.3

_________________________________________________________________

3 Defendant makes a vague argument that the government did not

object to sentencing below and thus that it "waived the issues of legality

and extent of the departure on appeal." Appellee's Brief at 10. However,

it is clear that the sentencing colloquy to which defendant is referring

occurred at his first sentencing, before his first appeal, not at his resentencing. Id. at 9-10. Although the government did not specifically object

to the fact that the district court, rather than the Attorney General, calculated the sentence, the government clearly objected at the resentencing

hearing to the court's computation of the credit to which defendant was

entitled, J.A. at 65, arguing that the proper amount of time for defendant

to serve "is 18 months minus whatever days the Defendant actually

served in Cumberland County Jail." Id.

 5
Accordingly, the judgment of the district court is again vacated and

remanded for "resentencing within the applicable guideline range of

18-24 months."

VACATED AND REMANDED

 6