Case: 19-30401      Document: 00515310148         Page: 1    Date Filed: 02/13/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-30401
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 13, 2020
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ANTHONY JOSEPH FELIX,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:18-CR-187-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Anthony Joseph Felix pleaded guilty to attempting to possess with intent
to distribute a controlled substance. At sentencing, Felix’s defense counsel
informed the district court that Felix served a year-long state court sentence
for the same conduct that resulted in the instant conviction. He requested that
the court take into account the fact that Felix “was prosecuted in state court
and pled guilty there also and has now discharged that term of imprisonment.”


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-30401

The Government agreed that Felix had been in custody since April 25, 2018,
and stated that it had no objection to crediting him with time served. The
district court sentenced Felix to 96 months of imprisonment and ordered that
he was to receive full credit for his time served since April 25, 2018. Likewise,
the judgment committed Felix to a 96-month term of imprisonment “with time
served since April 25, 2018.”
      As Felix argues, and the Government concedes, the district court failed
to effectuate its intended sentence because it lacked authority to award Felix
credit for time served on his discharged state term of imprisonment. The
parties also agree that, absent the error, there is a reasonable probability that
the district court would have fashioned a shorter sentence to account for Felix’s
prior time served.
      “The Attorney General, through the Bureau of Prisons (BOP),
determines what credit, if any, will be awarded to prisoners for time spent in
custody prior to the commencement of their federal sentences.”           Leal v.
Tombone, 

, 428 (5th Cir. 2003). Federal law “does not authorize a
district court to compute the credit at sentencing.” United States v. Wilson,

, 334 (1992).       Thus, “the district court must calculate the
defendant’s final sentence itself; it cannot simply order the BOP to award
credit.” In re U.S. Bureau of Prisons, 

, 439 (5th Cir. 2019).
“Sentencing courts, however, retain residual authority to reduce defendants’
sentences based on previous time served related to their offenses.” See United
States v. Hankton, 

, 792 (5th Cir. 2017); see also U.S.S.G. § 5G1.3
& comment. (n.5); U.S.S.G. § 5K2.23, p.s.
      Regardless of the standard of review, resentencing is warranted in these
circumstances. Therefore, we VACATE the sentence and REMAND for the
district court to clarify its intended sentence by considering whether to



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                               No. 19-30401

fashion—through an adjustment, a departure, a shorter within-guidelines
term of imprisonment, or a variance—a sentence that accounts for Felix’s time
served.




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