United States v. Omar Jahal Daggao, A.K.A. Omar Jahal Ali-Daggao

Opinion by Judge CHOY; Dissent by Judge REINHARDT.

I. FACTUAL AND PROCEDURAL BACKGROUND

Omar Jahal Daggao (a.k.a. Omar Jahal Ali-Daggao) was charged with committing three armed bank robberies, and was arrested on August 27, 1992. He was held in custody until September 9, 1992, when he appeared before a United States magistrate for a bail hearing. The magistrate released Daggao on a $100,000 property bond with several conditions. It was ordered that Dag-gao be confined to his parents’ house, and electronically monitored. He was required to be confined at his parents’ house at all times, except to attend a local community college, and for other reasons authorized by Pretrial Services. Pursuant to this order, Pretrial Services authorized him to leave his parents’ house every Monday through Friday from 8:00 A.M. to 5:00 P.M. Daggao remained in such in-house detention for approximately seven and a half to eight months.

Prior to sentencing, Daggao requested a downward departure from his Guideline sentence under U.S.S.G. § 5K2.0 on the basis of the approximately eight-month period of in-house detention. The district court denied the downward departure, stating that it did not…

dissenting:

The majority is certainly correct in stating that the courts cannot grant credit for time served in pre-trial detention. See United States v. Wilson , — U.S. —, 112 S.Ct. 1351 , 117 L.Ed.2d 593 (1992). My colleagues err, however, by treating what Daggao is actually asking for — a downward departure under § 5K2.0 of the Sentencing Guidelines — as if it were equivalent to a request for credit. It is not. Accordingly, I dissent.

In Wilson , the Supreme Court held that a district court lacked authority to grant credit for time served in detention before sentencing. The Court stated that under 18 U.S.C. § 3585 (b), credit for such detention could be granted only by the Attorney General. 1 — U.S. at —, 112 S.Ct. at 1354 , 117 L.Ed.2d 593 . The Attorney General has determined that pre-trial home detention — no matter what the terms of the confinement imposed in the individual case — is not a sufficient restriction on liberty to qualify as “official detention” under the statute. See Program Statement No. 5880.24. We agreed with this construction of 18 U.S.C. § 3585 (b) in Fraley v. United States Bureau of Prisons, 1 F.3d 924, 926 (9th Cir.1992), noting that at least three…

28 F.3d 985 UNITED STATES of America, Plaintiff-Appellee, v. Omar Jahal DAGGAO, a.k.a. Omar Jahal Ali-Daggao, Defendant-Appellant. No. 93-10321. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 10, 1994. Decided July 1, 1994. Barry J. Portman, Federal Public Defender, San Francisco, CA, for the defendant-appellant. Martha Boersch, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before CHOY, POOLE, and REINHARDT, Circuit Judges. Opinion by Judge CHOY; Dissent by Judge REINHARDT. CHOY, Circuit Judge: I. FACTUAL AND PROCEDURAL BACKGROUND 1 Omar Jahal Daggao (a.k.a. Omar Jahal Ali-Daggao) was charged with committing three armed bank robberies, and was arrested on August 27, 1992. He was held in custody until September 9, 1992, when he appeared before a United States magistrate for a bail hearing. The magistrate released Daggao on a $100,000 property bond with several conditions. It was ordered that Daggao be confined to his parents' house, and electronically monitored. He was required to be confined at his parents' house at all times, except to attend a local…