9th Cir.;
15-30229

The court of appeals vacated a judgment and remanded. The court held that the district court erred in concluding that an inmate's total “term of imprisonment” could not include time spent in state custody under a state conviction for the same conduct.

Gilbert Brito pleaded guilty to a single count of possession of heroin with intent to distribute. Brito and the government agreed to recommend a sentence of 80 months imprisonment, which took into account a four-month downward variance based on Brito's guilty plea. At sentencing, Brito asked for an additional four-month reduction to take into account four months Brito had served in state custody under a state conviction for the same conduct. The court granted the request and granted a four-month reduction for time served in state custody. Two years later, the Sentencing Guidelines were amended to reduce the base offense levels for most federal drug possession and distribution crimes. Brito moved for a reduction in sentence. In his motion, Brito sought credit for the four months he had served in state custody in determining his new term of imprisonment.