United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman United States Magistrate Judge.
before the court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. 2241, filed on September 26, 2018.
(Doc. 1) The petitioner, Justin Sadler, claims the Bureau of
Prisons (BOP) failed to acknowledge that his sentence of 120
months was to run concurrent to his previously imposed
sentence of two years and improperly calculated his total
respondent filed an answer opposing the petition on June 12,
2019. (Doc. 11) The respondent argues the petition should be
denied on the merits. (Doc. 11, p, 2) Sadler did not file a
to the Rules of Practice of this Court, this matter was
referred to Magistrate Judge Bowman for a Report and
Recommendation. The court assumes, without deciding, that
Sadler properly exhausted his administrative remedies. The
petition should be denied on the merits. The BOP's
calculation is correct.
of the Case
16, 2006, Sadler received a 120-month sentence for Conspiracy
to Possess with Intent to Distribute Methamphetamine in
05-CR-126. (Doc. 11-1, p. 2) He was released and commenced
serving a term of supervised release in December of 2011.
April 8, 2013, Sadler received a two-year sentence for
violating his supervised release in 05-CR-126. (Doc. 11-1, p.
2); (Doc. 11-2, pp. 33-34) He began serving his sentence
immediately. On January 6, 2014, Sadler received an
additional 120-month sentence for Felon in Possession of a
Firearm. (Doc. 11-2, pp. 43-44) The sentence was “to be
served concurrent to sentence in case 05-CR-126.” (Doc.
11-2, p. 44)
calculated Sadler's total sentence as being 10 years, 8
months and 29 days. (Doc. 11-1, p. 4) The BOP made this
calculation by taking the 120-month sentence and tacking it
onto the amount of time that Sadler already served on his
two-year supervised release violation sentence as of the date
the 120-month sentence was imposed. See Id. That
two-year sentence started on April 8, 2013. Id. It
ran for approximately 9 months, actually 8 months and 29
days, when on January 6, 2014, Sadler's 120-month
sentence began. Id. Adding the 8 months and 29 days
to Sadler's 120-month sentence gives a total sentence of
incarceration of 10 years, 8 months and 29 days. Id.
The BOP then credited Sadler with 24 days of prior custody
credit giving him a “full term release date [of]
December 12, 2023, not counting Good Conduct Credit.”
Id., pp. 4-5 The BOP's calculation is correct.
complains that “the BOP converted petitioner's term
of imprisonment to one of 10 years, 8 months and 29 days
rather than the sentence imposed by the federal sentencing
court of 120 months to be served concurrently with the
sentence of two years for the revocation of supervised
release.” (Doc. 1-1, p. 3) Sadler apparently believes
that the term “concurrent” means that the
supervised release violation sentence and the 120-month
sentence must completely overlap. That is to say, he believes
the BOP should assume that the 120-month sentence started on
April 8, 2013, the same day that the supervised release
violation sentence started. And then, his total sentence
would be 120-months long, or 10 years. Sadler thinks the BOP
has improperly extended his sentence by 8 months and 29 days.
He is incorrect.
sentence can run concurrent with an unexpired
portion of a previously imposed sentence, but it cannot run
concurrent with that part of a previously imposed sentence
that has already run. A sentence starts when the defendant is
taken into custody to serve that sentence, and not before.
See 18 U.S.C. § 3585(a) (“A sentence to a
term of imprisonment commences on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be
served.”); Schleining v. Thomas, 642 F.3d
1242, 1244 (9th Cir. 2011) (“[A] federal
sentence cannot begin before the defendant has been
sentenced in federal court.”) (emphasis in original);
United States v. Flores, 616 F.2d 840, 841
(5th Cir. 1980) (“The sentences could not be
concurrent in the sense of having the same starting date
because a federal sentence cannot commence prior to the date
it is pronounced, even if made concurrent with a sentence
already being served.”).
case, Sadler's 120-month sentence started on the day it
was imposed, January 6, 2014. It ran concurrent with the
unexpired portion of the previously imposed 2-year sentence
until that sentence expired. Sadler's total federal
incarceration can be calculated by taking that part of the
2-year sentence that was served before January 6, 2014 and
then adding the 120-month sentence onto that. In all,
Sadler's total aggregate sentence of incarceration is 10
years, 8 months and 29 days. The BOP's sentencing
calculation is correct.
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order denying
the petition for writ of habeas corpus filed on September 26,
2018. (Doc. 1)
to 28 U.S.C. §636(b), any party may serve and file
written objections within 14 days of being served with a copy
of this Report and Recommendation. If objections are not
timely filed, they may be deemed waived. The Local Rules
permit a response to an objection. They do not ...