UNPUBLISHED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.

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Vacated and remanded by unpublished per curiam opinion.

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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 McKen-
zie Cole, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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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 com-
pany. 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 sen-
tence to which Stubbs was entitled and in ordering the Bureau of Pris-
ons 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


speaks in the passive voice, the Supreme
Court held in United States v. Wilson , 

(1992), that sec-
tion 3585(b) "does not authorize a district court to compute the credit
at sentencing." 

only the Attorney General, through
the Bureau of Prisons [BOP], may compute credit. 

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, 

(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
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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, 

(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 con-
fined to a community treatment center. 

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.

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."

omitted).
2 Stubbs' waiver of his right to appeal may have been even more com-
prehensive 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, 

, 54 (4th Cir. 1991).] The finality of judgments and sen-
          tences imposed is no more preserved by appeals by the gov-
          ernment 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 pre-
          cluded. 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.

. See also United States v. Marin,

, 495 n.2 (4th Cir. 1992) (noting in dicta that the govern-
ment could not appeal a certain error because the defendant had
waived his right to appeal and thus Guevara prevented the govern-
ment from appealing).

The Guevara rule of reciprocity, however, does not bar the govern-
ment'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 appel-
          late review of a sentence imposed in excess of the maximum
          penalty provided by statute or based on a constitutionally
          impermissible factor such as race.

. It was on this reasoning that, in United States
v. Broughton-Jones, 

(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. 

we explained:

          Marin's language making waivers inapplicable to appeals
          that challenge sentences as "imposed in excess of the maxi-
          mum penalty provided by statute" is instructive. Appeals
          challenging sentences of imprisonment that exceed the stat-
          utory 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 resti-
          tution orders are similarly outside the scope of a defendant's
          otherwise valid appeal waiver.

did the district court in this case clearly exceed its author-
ity by computing defendant's credit for time served and ordering the
BOP to reduce the defendant's sentence in accordance with that cal-
culation. 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
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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 resen-
tencing. 

the government did not specifically object
to the fact that the district court, rather than the Attorney General, calcu-
lated 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." 

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