Anthony Mangum v. Warden S. Hallembaek
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-hc-02227-FL. [999832809]. [15-6134]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6134
ANTHONY WAYNE MANGUM,
Petitioner - Appellant,
v.
WARDEN S. HALLEMBAEK,
Respondent – Appellee,
and
UNITED STATES OF AMERICA; BUREAU OF PRISONS,
Respondents.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-hc-02227-FL)
Argued:
January 28, 2016
Decided:
May 25, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed
in
part,
vacated
in
part,
and
remanded
with
instructions by published opinion. Senior Judge Davis wrote the
opinion, in which Judge Gregory and Judge Harris joined.
ARGUED: Clint Cowan, Travis Andrews, UNIVERSITY OF VIRGINIA
SCHOOL
OF
LAW,
Charlottesville,
Virginia,
for
Appellant.
Michael Bredenberg, OFFICE OF THE UNITED STATES ATTORNEY,
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Raleigh, North Carolina, for Appellee.
ON BRIEF: Stephen L.
Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas
G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
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DAVIS, Senior Circuit Judge:
Anthony Wayne Mangum appeals the district court’s denial of
his petition for a writ of habeas corpus under 28 U.S.C. § 2241,
pursuant to which he challenged the computation of his federal
sentence
and,
more
specifically,
the
refusal
of
the
federal
Bureau of Prisons (“BOP”) to designate nunc pro tunc a state
facility
for
designation
service
would
have
of
his
had
federal
the
effect
sentence.
of
Such
crediting
a
against
Mangum’s previously imposed federal sentence the time he spent
in state prison on a subsequently imposed state sentence.
And
indeed, it is undisputed that the state sentencing judge, who
imposed
sentence,
a
sentence
desired
after
exactly
the
federal
that
judge
result.
The
had
imposed
district
a
court
granted summary judgment in favor of appellee, the warden of
Mangum’s
federal
correctional
institution,
reasoning
that
the
BOP had (1) correctly and appropriately calculated and executed
Mangum’s
federal
sentence
and
(2)
permissibly
exercised
its
discretion in denying a nunc pro tunc designation.
For the reasons explained within, although we find no error
in
the
district
court’s
analysis
of
the
BOP’s
sentencing
calculation, we conclude that the district court overlooked a
two-pronged flaw in the BOP’s exercise of its broad discretion
in
denying
Mangum’s
requested
nunc
pro
tunc
designation.
Accordingly, as we conclude that the BOP abused its discretion,
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we affirm the judgment in part, vacate in part, and remand the
petition to the district court with instructions that the court
remand Mangum’s request for a nunc pro tunc designation to the
BOP for further consideration.
I.
The facts underlying Mangum’s serial arrests, convictions,
and sentencings are undisputed.
Mangum was arrested by Oklahoma state authorities on drug
charges on February 9, 2006, and released on bond five days
later
on
February
14,
2006.
On
February
27,
2006,
he
was
indicted for conspiracy to distribute cocaine base by a federal
grand jury in the Middle District of North Carolina based on
substantially the same conduct giving rise to his state drug
charges.
The state drug charges were dismissed, and a federal
arrest warrant issued, but was not executed, at about that time;
Mangum remained at liberty.
Several
months
later,
on
June
14,
2006,
Mangum
was
rearrested by Oklahoma state authorities and charged with felony
assault
and
possession
battery
of
a
with
a
fictitious
dangerous
driver’s
weapon,
misdemeanor
license,
misdemeanor
resisting an officer, and misdemeanor obstructing an officer.
On August 23, 2006, a federal magistrate judge in North
Carolina
issued
a
writ
of
habeas
corpus
ad
prosequendum
requesting that Oklahoma transfer Mangum to federal custody for
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proceedings in North Carolina, and Mangum shortly appeared in
the Middle
there.
District
of
North
Carolina
to
answer
the
charges
On November 8, 2006, Mangum pled guilty in federal court
to conspiracy to distribute cocaine base.
He was sentenced on
May 16, 2007, to 262 months’ imprisonment and a five-year term
of supervised release.
sentence
state
nor
whether
concurrently
in
its
written
Mangum’s
with
Neither in its oral pronouncement of
or
judgment
federal
did
consecutively
to
district
was
sentence
the
to
any
be
other
court
served
sentence,
including his yet-to-be-imposed state sentence in Oklahoma. 1
On October 27, 2007, federal authorities returned Mangum to
Oklahoma
for
continuation
and
completion
of
proceedings arising from his June 14, 2006 arrest.
the
state
On December
3, 2007, Mangum pled guilty to all four charges then pending
against
him.
On
December
5,
2007,
a
state
judge
sentenced
Mangum to terms of imprisonment of ten, seven, one, and one
year(s),
respectively,
as
to
each
of
the
four
charges,
and
specifically ordered that the state sentences run concurrently
with each other and with the previously imposed North Carolina
federal sentence.
Thereafter, Mangum remained in the custody of
Oklahoma while serving his state sentences.
1
He was paroled to a
Indeed, the record before us lacks any evidence as to
whether the federal sentencing court was even aware that Mangum
might have been facing a state sentence after he was sentenced
in federal court.
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federal detainer on January 13, 2011, when, according to the
BOP, he commenced the actual service of his federal sentence in
a BOP facility.
On January 3, 2013, at Mangum’s request, the BOP analyzed
whether to designate, nunc pro tunc, the Oklahoma prison as the
place for service of Mangum’s federal sentence pursuant to 18
U.S.C. § 3621. 2
See Barden v. Keohane, 921 F.2d 476 (3d Cir.
1990).
As part of its analysis, the BOP sought to contact
Mangum’s
federal
2
sentencing
court
in
the
Middle
District
Section 3621(b) provides in relevant part as follows:
(b) Place of imprisonment.--The Bureau of Prisons
shall
designate
the
place
of
the
prisoner’s
imprisonment.
The Bureau may designate any available
penal or correctional facility that meets minimum
standards of health and habitability established by
the
Bureau,
whether
maintained
by
the
Federal
Government or otherwise and whether within or without
the judicial district in which the person was
convicted,
that
the
Bureau
determines
to
be
appropriate and suitable, considering-(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the
prisoner;
(4) any statement by the court that imposed the
sentence-(A)
concerning
the
purposes
for
which
the
sentence
to
imprisonment
was
determined
to
be
warranted; or
(B) recommending a type of penal or correctional
facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2) of
title 28.
18 U.S.C. § 3621(b).
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North Carolina to inquire whether the court intended that the
federal
sentence
should
be
treated
as
concurrent
consecutive to the later imposed Oklahoma sentence.
note
2
(quoting
18
U.S.C.
§ 3621(b)(4)).
For
with
or
See supra
reasons
not
appearing in the record before us, the North Carolina federal
district court judge never responded to the BOP.
Thereafter,
upon its review of the three (out of the five) statutory factors
it thought relevant to a request for nunc pro tunc relief for an
inmate such as Mangum, i.e., one who had completed his state
sentence entirely and had been transferred to federal custody,
the BOP declined to grant the nunc pro tunc designation of the
Oklahoma
state
facility
as
the
service of his federal sentence.
place
Mangum
would
commence
In so doing, the BOP reasoned
in part as follows:
Regarding factor (4), the federal Judgment was silent
on whether your sentence should run consecutively or
concurrently to any other sentence. Pursuant to Title
18 U.S.C. § 3584(a), “Multiple terms of imprisonment
imposed at different times run consecutively unless
the
court
orders
that
the
terms
are
to
run
concurrently.”
J.A. 61.
its
Thus, the BOP’s sentencing computation, coupled with
refusal
to
grant
nunc
pro
tunc
relief,
effectively
determined that the previously imposed federal sentence would be
served consecutively to the later imposed state sentence, and
this notwithstanding the clearly expressed intent of the state
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sentencing court that its sentence be served concurrently with
the federal sentence.
*
On
October
24,
*
2013,
*
*
Mangum,
*
acting
pro
se,
filed
the
instant petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in the Eastern District of North Carolina, where
he was being housed by the BOP.
the
basis
of
several
His petition sought credit, on
distinct
theories,
against
his
federal
sentence for the time he spent serving his state sentence—from
June 14, 2006 to January 13, 2011.
BOP
facility
where
Mangum
is
Appellee, the warden of the
serving
his
sentence,
filed
a
motion for summary judgment, which the district court granted in
a
thorough
memorandum
and
order
filed
on
December
29,
2014.
Mangum filed a timely notice of appeal on January 27, 2015, and
we appointed counsel and calendared the case for oral argument.
We have jurisdiction pursuant to 28 U.S.C. § 2253.
II.
Having had the benefit of comprehensive briefing by counsel
appointed to represent Mangum 3 and counsel for the warden, we
conclude,
with
the
exception
noted
below,
that
the
district
court correctly denied relief on Mangum’s claims relating to
3
The panel expresses its gratitude for the excellent
representation provided by appointed counsel, which has greatly
aided this Court in its resolution of this appeal.
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calculation and execution of his sentence, and we affirm the
judgment in part for the reasons stated by the district court.
Mangum v. Warden, No. 5:13-hc-02227-FL (E.D.N.C. Dec. 29, 2014).
We
discern
legal
error,
however,
and
hence
an
abuse
of
discretion, cf. United States v. Rybicki, 96 F.3d 754, 757 (4th
Cir. 1996), in the BOP’s stated basis for its refusal to grant
Mangum nunc pro tunc relief.
Specifically, we hold that, in its
consideration
statutory
of
the
fourth
factor
under
§ 3621(b)
(“any statement by the court that imposed the sentence”), the
BOP misapplied 18 U.S.C. § 3584(a). 4
That is, in the face of the
federal sentencing judge’s silence as to the court’s intention,
the
BOP
sentence
imposed
invoked
a
should
be
state
presumption
deemed
sentence,
to
that
run
quoting
the
unelaborated
consecutively
the
following
to
federal
the
later
language
from
§ 3584(a): “Multiple terms of imprisonment imposed at different
4
Section 3584(a) provides in pertinent part as follows:
If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively . . . .
Multiple terms of imprisonment imposed at the same
time run concurrently unless the court orders or the
statute
mandates
that
the
terms
are
to
run
consecutively. Multiple terms of imprisonment imposed
at different times run consecutively unless the court
orders that the terms are to run concurrently.
18 U.S.C. § 3584(a).
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times run consecutively unless the court orders that the terms
are to run concurrently.”
We conclude that the presumption relied on was inapplicable
because, as the Supreme Court has clarified,
[t]he first subsection of [§ 3584(a)], which says when
concurrent and consecutive sentences may be imposed,
and specifies which of those dispositions will be
assumed in the absence of indication by the sentencing
judge
. . .
addresses
only
“multiple
terms
of
imprisonment . . . imposed . . . at the same time” and
“a term of imprisonment . . . imposed on a defendant
who is already subject to an undischarged term of
imprisonment.” Here the state sentence is not imposed
at the same time as the federal sentence, and the
defendant was not already subject to that state
sentence
[at
the
time
of
the
federal
sentencing]. . . .
[Accordingly,] § 3584(a) does not
cover this situation.
Setser v. United States, 132 S. Ct. 1463, 1467 (2012) (second,
third, and fourth omissions in original) (quoting § 3584(a));
accord Abdul-Malik
v.
Hawk-Sawyer,
403
F.3d
72,
75
(2d
Cir.
2005); McCarthy v. Doe, 146 F.3d 118, 121 (2d Cir. 1998).
But
see Romandine v. United States, 206 F.3d 731, 738 (7th Cir.
2000)
(rejecting
The circumstances
sentencings
do
the
Second
surrounding
not
fall
Circuit’s
Mangum’s
within
either
reading
serial
of
of
§ 3584(a)).
convictions
the
contemplated by the opening sentence of § 3584(a).
two
and
scenarios
Accordingly,
we are constrained to agree with Mangum’s assertion that the
federal sentencing judge’s silence does not and cannot give rise
to a statutory presumption that the federal sentence should be
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deemed intended as a consecutive sentence to the later imposed
state sentence.
We reject the government’s contention that the
plain language of § 3584(a) creates a presumption, in any and
all circumstances, that multiple terms of imprisonment will run
consecutively unless expressly stated otherwise.
See McCarthy,
146 F.3d at 122 (“Although our reading of the statute is based
on
its
plain
language
and
common
sense,
we
note
that
the
legislative history of § 3584(a) confirms our interpretation.”);
id. (discussing legislative history).
The clarity of the BOP’s error is made even more plain by a
second
compelling
consideration.
At
the
time
Mangum
was
sentenced in the North Carolina federal court in May 2007, a
federal district judge in this circuit was powerless to impose a
federal sentence to be served consecutively to a state sentence
that had not yet been imposed.
F.3d
222,
225
(4th
Cir.
See United States v. Smith, 472
2006)
(“The
plain
language
of
[§ 3584(a)] does not grant a district court authority to order
that its sentence run consecutively to a future sentence.”),
abrogated in part by Setser, 132 S. Ct. at 1466, as stated in
United States v. Obey, 790 F.3d 545, 549 (4th Cir. 2015).
To be
sure, Setser later resolved a circuit split in holding that,
under § 3584(a), a district court “has authority to order that
the
federal
sentence
be
consecutive
to
an
anticipated
state
sentence that has not yet been imposed,” see 132 S. Ct. at 1466.
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Nonetheless,
arbitrary
and
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we
are
confident
capricious
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that
determination
any
by
definition
an
of
an
administrative
agency such as the BOP would include within it the agency’s
invocation of a presumed intention on the part of a federal
sentencing judge to do that which he was powerless to do under
binding circuit precedent at the time he imposed a sentence. 5
In
this case, one might reasonably expect the BOP to exercise its
discretion to weigh heavily what the state judge did say rather
than what the federal judge did not and could not say.
III.
For the reasons set forth, we affirm in part, vacate in
part, and remand.
Upon remand, the district court shall return
this matter to the BOP so that the agency may give plenary
consideration to Mangum’s request for nunc pro tunc designation
of the Oklahoma state facility as the place for service of his
federal sentence.
In considering the request, the BOP shall
invoke no presumption under 18 U.S.C. § 3584(a) and shall fully
evaluate all relevant factors under 18 U.S.C. § 3621(b) in a
fashion consistent with the views expressed in this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
5
We
have
considered
the
government’s
supplemental
authority, United States v. Butler, Nos. 15-4201, 15-4205, 154215, 2015 WL 7888398 (4th Cir. Dec. 4, 2015) (unpublished) (per
curiam), and we find nothing in that non-precedential case that
bears persuasively on the issues presented herein.
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