ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 01-cr-00346) District Judge: Hon. Joseph E. Irenas
Before: Alito, Roth, and Stapleton, Circuit Judges
The opinion of the court was delivered by: Alito, Circuit Judge
This appeal requires us to review a downward departure from the sentence prescribed by the United States Sentencing Guidelines.*fn1 The defendant, Arthur D'Amario, was convicted of violating 18 U.S.C. § 115(a)(1)(B) by threatening to kill a federal judge with the intent to impede, intimidate, and interfere with the judge while engaged in the performance of official duties, and with intent to retaliate against the judge on account of the performance of official duties. The defendant committed this crime while serving a prison term on a federal conviction for possession of a firearm by a convicted felon. The defendant was apparently motivated to write the threatening letter by frustration regarding the way in which time that he spent in custody after arrest was taken into account in determining the amount of time that he was required to serve on the federal felon-in-possession conviction and a related state sentence. The District Court's downward departure appears to have been designed in large part to rectify this determination. We reverse and remand for resentencing within the Guidelines range.
In early February 1999, law enforcement officers in Rhode Island executed a search warrant for D'Amario's residence and found a handgun and ammunition. At that time, D'Amario was on probation for a prior state felony conviction. Rhode Island state authorities arrested D'Amario for violating the terms of his state probation, and he was assigned to a state correctional facility pending disposition of the state probation violation charge.
On March 3, 1999, D'Amario was indicted by a federal grand jury in the District of Rhode Island for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Because all of the district judges in the District of Rhode Island were recused, D'Amario's federal case was assigned to Judge Joseph A. DiClerico, Jr., of the District of New Hampshire, who sat by designation in the District of Rhode Island. On March 5, D'Amario was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum but was returned to state custody on September 15. On December 20, 1999, he was again transferred to federal custody, this time for trial. A jury found D'Amario guilty on the felon-in-possession charge, and on March 10, 2000, Judge DiClerico sentenced him to 18 months' imprisonment. Judge DiClerico recommended that the Bureau of Prisons ("BOP") give D'Amario credit for the period that he had spent in custody since his federal indictment. In so doing, however, Judge DiClerico recognized that the BOP was not required to accept his recommendation. See App. at 782.
Following the federal sentencing, D'Amario was returned to the state for the probation violation hearing, and on March 13, 2000, Judge Clifton of the Rhode Island Superior Court sentenced D'Amario to a term of 386 days' imprisonment and entered a judgment for "time served," crediting D'Amario for the time that he had spent in custody from February 22, 1999, to the date of the judgment. App. at 755, 775. D'Amario was then released to federal custody to serve his federal sentence and was sent to the Federal Correctional Institution at Ft. Dix, New Jersey. Because almost all of the time that D'Amario had spent in custody following his arrest had already been credited against his state sentence, the BOP declined under 18 U.S.C. § 3585(b)*fn2 to credit any of that time against his federal felon-in-possession sentence. Under that provision, time spent in custody before sentencing may be credited against a sentence if, among other things, that time "has not been credited against another sentence." Id.
Although D'Amario could have challenged the BOP's decision in administrative proceedings, he did not do so but instead filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the District of Rhode Island. On June 5, 2000, Judge DiClerico dismissed the petition without prejudice to re-filing in the District of New Jersey after exhaustion of administrative remedies.*fn3 In an appeal, the UNITED STATES COURT OF APPEALS for the First Circuit affirmed D'Amario's conviction and sentence and held that he could not contest the BOP's decision concerning his sentence until he had exhausted administrative remedies. United States v. D'Amario, 2 Fed. Appx. 25, 2001 WL 120055, 2001 U.S. App. LEXIS 16669 at *29 (1st Cir. Feb. 12, 2001).
D'Amario then mailed a letter dated June 22, 2000, from Ft. Dix to Ed Roy, Esq., his attorney in the state and federal cases in Rhode Island. The letter stated in pertinent part:
[I]f they make me work one more day, and continue to fuck up my sentence computation, I will seek revenge on the day of my inevitable discharge against the conspirators. As soon as I get off the bus in Providence next month or next year, I will kill the judges who directed the state police to frame me with those nursery rhymes. I may charge after one and break his neck with my bare hands, or I might douse myself with gasoline and light the match next to a judge, or I may get a gun and shoot them all....
As I said, you must understand how sick I am of losing, and that I will not accept this latest conspiracy. The co-conspirators are:
4. [The AUSA in the District of Rhode Island] [12 others]
So the way we left it is that nobody had better push me or I'll explode. 'Leave me the fuck alone!' I said, or I'll kill somebody. I also said that I will not do this time and plan to beat the judges however I can even if it means hanging myself....
But they have to let me out eventually. I've told them where we're at. If they don't drop these terror tactics immediately, I'm dedicated to killing R.I. judges when I'm out. I'll put the conspirators on the front page.... I dare anybody to push me. You can accept all they've done to me in this hoax case. I won't. If I'm in S.H.U. when this arrives, I expect ...