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w . v i l l a no v a . e du/thir dc ir c uit_2013/1377NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 1 2

- 1 356

____________ UNITED STATES OF AMERICA

v. ROBERT COLBERT, App ellant

___________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 2

- 08

- cr - 004 11

- 001 ) Dis trict Judge: Honorable Gustave Diamond

___________ Submitted Under Third Circuit L

. A

. R

. 34.1 (a)

October 2 5 , 2012 Before: HARDIMAN , GREENAWAY, JR. , and VANASKIE, Circuit Judges (Filed January 15, 201 3 )

___________ OPINION

___________ VANASKIE, Circuit Judge. Robert Colbert pled guilty to conspiracy to conduct a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 196 2 (d) , and wa s sentenced to a prison term of 159 months . On appeal, Colbert contends that the District Court erred because it did not adjust, credit, or otherwise depart2

from the imposed sentence based on the time he spent incarcerated in pretrial detention pend ing di sposition of the RICO charge and for the time he served for the state convictions that formed predicate acts under lying the RICO charge . Finding his challenges to the denial of credit for pretrial detention to be encompassed by an appel late waiver and dis cerning no error in the refusal to credit time served on the predicate act convictions, we will affirm.
I. Since we write principally for the parties, we set forth only the facts essential to our analysis

. On March 29, 2008, Pittsburgh police arrested Co lbert and charg ed him with a state firearms violation and three related offenses

. Those charges were nolle prossed after a federal grand jury returned an indictment on December 4, 2008 charging Colbert for the same conduct in violation of 18 U.S.C. § 922( g) for possession of a firearm by a convicted felon. In the meantime, on August 21, 2008, the Pennsylvania Parole Board lodged a detainer against Colbert. The detainer was lifted on November 6, 2009, when the maximum expiration date for a 2006 state cour t conviction was reached. Colbert made an initial appearance in federal court on January 5, 2009 and has remained in federal custody since then. On February 12, 2010, the grand jury returned a
37

- count superseding indictment

. Count Two charged Colbert w ith conspiracy to conduct a racketeering enterprise under RICO for his involvement in gang

- related drug activities

. On August 5, 2011, Colbert pled guilty to Count Two of the superseding indictment

. On January 30, 2012, t he District Court sentenced Colbe rt to 159 months‟3

imprisonment and , pursuant to the plea agreement, the court dismissed the remaining charges against him . T wo prior drug

- related state convictions, referred to in the indictment as “Overt Act Number 2” and “Over t Act Number 14,” were the predicate criminal acts for the federal RICO charge

. Over t Act 2 related to Colbert‟s 200 2 conviction for possession with intent to deliver a controlled substance. Colbert pled guilty and the Allegheny County Court of Common Pleas sentenced him to two to four years‟ impr isonment , effective October 28, 2001

. 1 On June 19, 2003, Colbert was paroled to a community corrections center but was recommitted on August 8, 2003 for a parole violation. He was again paroled on June 8, 2005. Overt Act 14 was based o n Colbert‟s 2006 conviction for delivery of a controlled substance. O n April 19, 2006 , t he Allegheny County Court of Common Pleas sentenced him to one to three years‟ imprisonment. He was paroled on November 6, 2007. On August 5, 2011, Colbert entered a guilty plea to the RICO conspiracy charge pursuant to a written plea agreement that stipulated that the advisory sentencing guideline imprisonment range was 168 to 210 months. At his sentencing proceeding on January 30, 2012 , Colbert argued for reduction s in his sentence based upon the time spent in custody from h is arrest on March 29, 2008 on state fir earms charges until the date that the federal sentence was imposed , and for the time he spent in state custody for the RICO predicate offenses. In imposin g a prison term of 159 months, nine months below the

1 At the same sentencing, Colbert also received concurrent prison sentences for two other counts unrelated to this appeal.4

minimum in the advisory guidelines range, the District Court effectively gave Colbert credit for the time spent in state custody before federal charges were brought against him

. The District Court expla ined that it varied downward by nine months out of concern that the Federal Bureau of Prison s would not credit Colbert with that period of time spent in state custody. The District Court did not reduce the prison term for time spent in federal custody sin ce January 5 , 2009

. It also did not reduce Colbert‟s sentence for the time he served on the convictions for the two RICO predicate acts, finding that Colbert was not entitled to such a reduction , either as a matter of law or in the exercise of the Distric t Court‟s sentencing discretion. Colbert appeals these determinations. As part of his plea agreement , however, Colbert agreed to waive his right to directly appeal his conviction except in limited circumstances. Relevant to this appeal, Colbert reserv ed the right to appeal his sentence on the issue of whether he “is entitled to receive a downward sentence adjustment based upon time served in state custody, pursuant to the holding of United States v. Dorsey , 166 F.3d 558 (3d Cir. 1999), and U.S.S.G. § 5 G1.3(b).” (Supplemental App. 2.)
II. The District Court had ju risdiction under 18 U.S.C. § 3231 , and we have appellate jur isdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1)

- (2)

. On appeal, Colbert advances three arguments related to his sentence . First, he argues that the District Court erred by failing to adjust his sentence under U.S.S.G. § 5G1.3 for the entire period of time he was in custody

– Ma r ch 29, 2008, when he was arrested by Pittsburgh police on the firearms charge, until January 30, 2012, when the5

District Court sentenced him for the RICO charge. Second, Colbert asserts that the District Court erred by failing to credit his s entence for satisfactory behavior under 18 U.S.C. § 3624(b) during th at same period. Specifically, Colbert claims an entitlement to a sentence reduction of 108 days for “good time credit.” (Appellant‟s Am. Br. 11.) Finally, Colbert contends that the Dis trict Court erred by failing to depart downward for the five years, eight months and ten days he spent incarcerated for his state convictions underlying Overt Act s 2 and 14.
A. The Government seeks to enforce the appellate waiver with respect to Colbert‟s first two arguments , asserting that the y fall outside the waiver‟s exception for appeals premised upon an asserted entitlement to a downward departure for time served in state custody pursuant to Dorsey . In Dorsey , we held that district courts may depart downward to adjust a defendant‟s sentence based on time served in state custody prior to federal sentencing when the criteria in U.S.S.G. § 5G1.3(b) are met. Dorsey , 166 F.3d at 562. Section 5G1.3(b) of the Sentencing Guidelines authorizes a sentencing court to adjust a sentence based on the period of time a defendant already served on an undischarged prison term for an offense that was “relevant conduct” und er U.S.S.G. § 1B1.3(a)(1)

- (3) and resulted in an incr ease in the offense level under Chapters Two or Three of the
Gu idelines

. We exercise plenary review of whether an issue on appeal is subject to an appellate waiver. United States v. Goodson , 544 F.3d 529, 537 n.6 (3d Cir. 2008). “ We decline to exercise jurisdiction

. . . where the issues on appea l fall within the scope of the6

waiver and the defendant knowingly and voluntarily agreed to the waiver, unless „enforcing the waiver would work a miscarriage of justice.‟” United States v. Saferstein , 673 F.3d 237, 242 (3d Cir. 2012) (quoting United State s v. Corso , 549 F.3d 921, 927 (3d Cir. 2008)). Colbert‟s first two arguments concern the District Court‟s failure to depart downward in imposing his sentence or give credit toward his sentence for good behavior for the period from March 29, 2008 to Janu ary 30, 2012 , when he was in custody following his arrest on state firearms charges up to the point of his federal sentencing. The District Court did grant a downward variance for the period from March 29, 2008 to January 7, 2009 , during which Colbert was held in state custody on a state firearms charge before his arraignment in federal court. Colbert argues that the District Court also should have reduced his sentence for the period for which he was in federal custody prior to his sentencing

. He also ar gues that his sentence should have been reduced by 108 days to account for good conduct time during the entire period of pre

- sentence detention, both in state and federal custody. The two arguments in support of a reduction for time spent in pretrial dete ntion do not fit within the l imited exception to the appellate waiver , which concerns only whether Colbert “is entitled to receive a downward sentence adjustment based upon time served in state custody ” under Dorsey and U.S.S.G § 5G1.3(b) , (Supplemental Ap p. 2 (emphasis added) ). Therefore, Colbert‟s first two arguments fall within the scope of the appellate waiver.7

We also find that Colbert knowingly and voluntarily agreed to the appellate waiver. At the change of plea hearing, the Government‟s counsel a nd the District Court summarized the terms of the plea agreement and Colbert affirmed under oath that he understood those terms and signed the agreement voluntarily. In addition, during the colloquy, both defense counsel and Colbert himself sought to clar ify the reservation of Colbert‟s right to appeal as it pertained to the state prison sentences he served for the crimes underlying Overt Act s 2 and 14 under Dorsey . The record indicates that Colbert understood the terms of the plea agreement, including th e appellate waiver, and knowingly and voluntarily agreed to them

. In addition, enforcing the appellate waiver would not work a miscarriage of justice. At the sentencing hearing, the District Court explained that it granted the downward variance for the p eriod from March 29, 2008 to January 7, 2009 , during which Colbert was held on the state firearm s charges , based on its belief that the Bureau of Prisons would not credit that time because he was not in federal custody. As to the period of time that Colbe rt was undeniably in federal custody, however, the District Court lacked authority to award credit against the federal sentence because it is the United States Attorney General, acting through the Bureau of Prisons , who is vested with the authority to awar d pre

- sentence credit for time spent in federal custody. See 18 U.S.C. § 358 5 (b); United S t ates v. Wilson , 503 U.S. 329, 336

- 37 (1992). Nor would there be a miscarriage of justice by our failure to entertain Colbert‟s argument that the District Court shou ld have reduced his sentence under 18 U.S.C. § 3624(b) for any satisfactory behavior during his incarceration between March 29, 20088

and January 30, 2012

. T hat authority also is vested in the Bureau of Prisons. See 18 U.S.C. § 3624(b) (1) ( stating tha t a prisoner may receive credit toward his or her sentence “subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations” )

. Finding no miscarriage of j ustice in the enforcement of the appellate waiver, we decline to exercise jurisdiction to review the issues relating to any adjustments to Colbert‟s sentence for the period he was in custody between March 29, 2008 and January 30, 2012.
B. Colbert also con tends that the District Court erred by failing to depart downward under U.S.S.G. §§ 5G1.3 and 5K2.23 for the time he served in state custody for his state drug convictions, which form ed the basis for Overt Act s 2 and 14 in the RICO charge. To the extent C olbert challenges the District Court‟s interpretation of the U.S. Sentencing Guidelines, our review is plenary. United States v. Fumo , 655 F.3d 288, 309 (3d Cir. 2011). Section 5K2.23 authorizes a sentencing court to grant a downward departure if the def endant already completed a previous term of imprisonment and a downward departure under § 5G1.3(b) would have applied if that time served was part of an undischarged
sentence. See also U.S.S.G. § 5G1.3, cmt

. 4 (clarifying that a court may grant a downwar d departure for time served on a discharged sentence if § 5G1.3(b) would have applied if the completed term had been undischarged)

. Colbert asserts that he served a9

total of 2096 days in state custody for t he two state drug convictions for which he should have received credit under Dorsey

. O ne criterion for the application of a downward departure under § 5G1.3(b) is that the previously served “term of imprisonment [must have] resulted from another offense . . . that was the basis for an increase in the of fense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments) . . . .” U.S.S.G. § 5G1.3(b). Here, Colbert‟s two previous state drug convictions were calculated as part of his criminal history category; t hey were not used to increase his offense level for the RICO c onviction

. As a result, § 5G1.3(b) does not apply , and Colbert was not entitled to a downward departure under § 5K2.23 for the time he served for th e two state court convictions

. See United States v. Parker , 512 F.3d 1037, 1040 (8 th Cir. 2008).
III. For the foregoing reasons, we will affirm the judgment of the District Court.