857 F. 2d 1479 - United States v. Dazen

MEMORANDUM**

Larry Rydell Dazen was convicted of arson. His original sentence of five years in prison was suspended on condition that he serve six months in a jail-type institution and be placed on probation for the remaining four and one half years. After his release, Dazen violated his probation. The district court revoked his probation and sentenced him to three years in prison. Dazen appeals the district court's denial of his Fed.R.Crim.P. 35(a) motion to correct his sentence. He argues that under 18 U.S.C. Sec. 3568 he is entitled to credit against his three year sentence for the time spent in custody prior to his probation. He asserts that the Bureau of Prisons miscalculated the length of his sentence by giving him credit for the six months served only after it aggregated his previous six months sentence with his current three year sentence.

The Bail Reform Act of 1966, 18 U.S.C. Sec. 3568, made the responsibility for allocating sentencing credit exclusively an administrative function of the Attorney General. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984). In Giddings, 740 F.2d at 771 (9th Cir.1984), we upheld a district court's denial of a Rule 35(a) motion, where the prisoner claimed he was entitled to receive credit against his sentence pursuant to 18 U.S.C. Sec. 3568, because the claim addressed the execution of the sentence rather than the sentence itself. Id. (citing United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir.1979); Aldridge v. United States, 405 F.2d 831, 831-32 (9th Cir.1969) (rule 35 proceeding inappropriate for obtaining such relief); Lee v. United States, 400 F.2d 185, 188-89 (9th Cir.1968) (giving of credit is administrative, not judicial, act)). There is no distinction between Dazen's motion and the prisoner's motion in Giddings.

AFFIRMED.