Russell Schleining v. J. Thoma

Filing

FILED OPINION (ALEX KOZINSKI, CARLOS T. BEA and SANDRA S. IKUTA) AFFIRMED. Judge: CTB Authoring, FILED AND ENTERED JUDGMENT. [7797710]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL EUGENE SCHLEINING,
Petitioner-Appellant,
v.
J. E. THOMAS, Warden,
Respondent-Appellee.





No. 10-35792
D.C. No.
3:09-cv-01087-MA
OPINION

Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted
May 4, 2011—Portland, Oregon
Filed June 27, 2011
Before: Alex Kozinski, Chief Judge, Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bea

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COUNSEL
Stephen R. Sady, Federal Public Defender’s Office, Portland,
Oregon, for the petitioner-appellant.
Dwight C. Holton, Kelly A. Zusman, James E. Cox, Jr.,
United States Attorney’s Office, Portland, Oregon, for the
respondent-appellees.

OPINION
BEA, Circuit Judge:
This case requires us to determine whether a prisoner is eligible for federal Good Conduct Time (“GCT”) under 18
U.S.C. § 3624(b)(1) for time he served in state prison on state
charges, before being sentenced on a related charge in federal
court. We hold that he is not so eligible.
Federal prisoner Russell Schleining appeals the district
court’s denial of his petition for writ of habeas corpus challenging the Bureau of Prison’s (“BOP”) calculation of his
Good Conduct Time (“GCT”) credit under 18 U.S.C.
§ 3624(b). Schleining contends that he accrued 82 days of
GCT during the 21 months he served in state custody on state
burglary, narcotics, and drug paraphernalia charges before he
was sentenced in federal court on a related felon-in-

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possession charge.1 The district court denied Schleining’s
habeas petition, holding that Schleining was not eligible for
GCT credit for the time he spent in state custody before his
federal sentence was imposed by the district court.
We affirm. Under the terms of 18 U.S.C. § 3624(b)(1),
GCT can accrue only on the time a prisoner has “actually
served” on his federal sentence. See Barber v. Thomas, 130
S. Ct. 2499, 2506-07 (2010). Pursuant to 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.” Although this court has not yet been called upon to
determine when a federal sentence begins for a prisoner
already serving a state term of imprisonment, other courts
have interpreted § 3585(a) to mean that a federal sentence
cannot begin before the defendant has been sentenced in fed1

Schleining was in state custody from the time of his arrest (September
3, 2003) until he was turned over to the BOP on or around January 25,
2005, pursuant to a writ of habeas corpus ad prosequendum—a period of
approximately 16 months. Schleining then spent approximately five
months in BOP custody before he was sentenced in federal court on July
8, 2005, at which point he was returned to state prison to serve the remainder of his state sentence. However, this court has held that the temporary
transfer of a prisoner from state prison to the BOP’s custody for purposes
of federal prosecution does not interrupt his state custody. Thomas v.
Brewer, 923 F.2d 1361, 1367 (9th Cir. 1991) (“When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be ‘on loan’ to the federal authorities so that the sending state’s
jurisdiction over the accused continues uninterruptedly.” (quoting Crawford v. Jackson, 589 F.2d 693, 695 (D.C. Cir. 1978); see also Reynolds v.
Thomas, 603 F.3d 1144, 1152 n.8 (9th Cir. 2010) (noting that where a
defendant is brought from state custody into BOP custody to appear in
federal court pursuant to a writ of habeas corpus ad prosequendum, the
defendant is still primarily in state custody and the state’s priority of jurisdiction is not interrupted). Thus, despite his brief transfer to the BOP’s
custody pursuant to a writ of habeas corpus ad prosequendum, Schleining
was in “state custody” for the 21-month period from his state arrest (September 3, 2003) to his sentencing in federal court (July 8, 2005).

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eral court. See United States v. Gonzalez, 192 F.3d 350, 355
(2d Cir. 1999) (holding that a district court cannot “backdate”
a federal sentence to the beginning of a state prison term on
related state charges); United States v. Flores, 616 F.2d 840,
841 (5th Cir. 1980) (“[A] federal sentence cannot commence
prior to the date it is pronounced, even if made concurrent
with a sentence already being served.”).
We find the logic of our sister circuits persuasive, and we
adopt their interpretation of § 3585(a). Therefore, because a
federal sentence cannot commence until a prisoner is sentenced in federal district court, and GCT can accrue only on
time served on a federal sentence, Schleining is not eligible
for GCT credit for the 21 months he served in state custody
discharging his state sentence before he was sentenced in federal court.
Background
Schleining was arrested by Montana state authorities on
September 3, 2003 for burglary and attempted burglary. When
he was arrested, Schleining—a previously convicted felon—
was also found in possession of a firearm. On November 12,
2003, Schleining pleaded guilty in state court to one count of
attempted burglary, one count of possession of narcotics, and
one count of possession of drug paraphernalia. He was sentenced the same day to ten years in state prison, with five
years suspended. He immediately commenced serving his
sentence in state prison.
On June 2, 2004, a federal grand jury indicted Schleining
on three counts relating to the firearm found during his arrest
for the state crimes. Schleining was subsequently brought into
federal custody on January 25, 2005, pursuant to a writ of
habeas corpus ad prosequendum. On April 8, 2005, Schleining pleaded guilty in the United States District Court for the
District of Montana to one count of Felon in Possession of a
Firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e).

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On July 8, 2005, the Honorable Donald W. Molloy, United
States District Judge for the District of Montana, conducted
a sentencing hearing. At the hearing, Judge Molloy exercised
his discretion under U.S.S.G. § 5G1.3 to adjust Schleining’s
sentence for the 21 months he had already served in state
prison on related state crimes, decreasing what Judge Molloy
considered an appropriate guidelines sentence—115
months—to 94 months. Section 5G1.3(b) of the 2008 Federal
Sentencing Manual provides:
(1) the court shall adjust the [federal] sentence for
any period of imprisonment already served on the
undischarged term of imprisonment if the court
determines that such period of imprisonment will not
be credited to the federal sentence by the Bureau of
Prisons; and
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of the
undischarged term of imprisonment.
U.S.S.G. § 5G1.3(b) (emphasis added).
Application of § 5G1.3(b)(1) was appropriate in this
instance because the BOP would not have been able to credit
Schleining’s 21 months in state prison against his federal sentence because those 21 months had already been credited
against his state sentence on related charges.2 As Judge Molloy explained:
2
18 U.S.C. § 3585(b) allows the BOP to grant a federal prisoner credit
for time spent in state or federal custody before imposition of his federal
sentence, but only if that term of pre-sentence imprisonment “has not been
credited against another sentence.” § 3585(b) (emphasis added). For
example, this might arise in the context of pre-trial detention where a bail
motion has been denied. Here, however, Schleining’s 21-month term in
state custody before imposition of his federal sentence was credited
against his state sentence. Therefore, the BOP would not have been able
to credit that time against Schleining’s federal sentence; that triggered
Judge Molloy’s authority, under U.S.S.G. § 5G1.3(b)(1), to adjust Schleining’s federal sentence downward from 115 months to 94 months, in recognition of the 21 months he served in state prison on related charges.

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The guideline range, as I said, is 92 to 115
months. And I can fashion a sentence that is appropriate, I believe, for giving you credit for the time
that you’ve been in the state and then making this
sentence run concurrent with the state sentence,
which I intend to do.
Pursuant to 18 U.S. Code section 3553 and having
considered the advisory guidelines, . . . it is my judgment that Russell Eugene Schleining be committed
to the custody of the Bureau of Prisons for a term of
94 months.
This is a reflection of my determination that an
appropriate sentence is 115 months but with the
application of [§ ] 5G1.3, giving you credit for the
time that you’ve been serving in the state, that
reduces it down to 94 months.
Thereafter, as reflected in the judgment record, Judge Molloy
sentenced Schleining to 94 months on the federal charge to be
served concurrently with Schleining’s state sentence.
Following his federal sentencing on July 8, 2005, Schleining was returned to state custody. He served the remainder of
his state sentence, and was transferred to federal custody on
February 21, 2007. At that point, the BOP calculated Schleining’s GCT credit under 18 U.S.C. § 3624(b)(1). Section
3624(b)(1) provides, in relevant part:
[A] prisoner who is serving a term of imprisonment
of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may
receive credit toward the service of the prisoner’s
sentence, beyond the time served, of up to 54 days
at the end of each year of the prisoner’s term of
imprisonment, beginning at the end of the first year
of the term, subject to determination by the Bureau

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of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional
disciplinary regulations.
The BOP based its GCT calculation on the 94-month sentence Schleining received from Judge Molloy on July 8, 2005.3
Based on the 94-month sentence, the BOP calculated Schleining’s expected GCT credit as 368 days, setting a projected
release date of May 4, 2012—with possible early release
available upon successful completion of a drug treatment program.
On September 11, 2009, Schleining filed a petition for writ
of habeas corpus in federal district court pursuant to 28
U.S.C. § 2241. Schleining contended that the BOP’s GCT cal3

As explained supra at n.1, Schleining was temporarily transferred to
BOP custody on January 25, 2005, pursuant to a writ of habeas corpus ad
prosequendum. However, Schleining was still considered in “state custody” during that time for the purposes of GCT credit. See Thomas, 923 F.2d
at 1367. Nonetheless, even if Schleining were considered to have been in
“federal custody” for those five months of pre-sentence detention, he
would not be entitled to GCT credit for that period. Under 28 C.F.R.
§ 523.17(l):
A pretrial detainee may not earn good time while in pretrial status. A pretrial detainee, however, may be recommended for good
time credit. This recommendation shall be considered in the event
that the pretrial detainee is later sentenced on the crime for which
he or she was in pretrial status.
In other words, while a pre-trial detainee may be recommended for good
time credit by the operators of his pre-trial detention facility and the BOP
“shall . . . consider[ ]” this recommendation if “the pretrial detainee is later
sentenced on the crime for which he or she was in pretrial status,” a pretrial detainee has no statutory entitlement to GCT credit under § 3624(b).
Schleining does not claim that he was recommended for GCT credit
under 28 C.F.R. § 523.17(l), nor does the record support a contention that
such a recommendation was ever made. Thus, even if Schleining were
considered to be in federal custody for his five months of pre-sentence
detention, the BOP would not have authority to award him good time
credit under 28 C.F.R. § 523.17(l) for that period.

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culation failed to account for GCT credits he accrued during
his pre-federal-sentence incarceration on related state charges.
Schleining claimed he was entitled to 82 additional days of
GCT credit for the 21 months he served in state custody
before the district court imposed his federal sentence. On September 7, 2010, the district court denied his petition, holding
that Schleining was not eligible for GCT credit under
§ 3624(b) for time served in state custody on state charges
before he was sentenced in federal court. Schleining timely
appealed.
Standard of Review and Jurisdiction
This court has jurisdiction to review a district court’s denial
of a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2253(a). This court reviews the district court’s denial of the
habeas petition de novo. Jonah R. v. Carmona, 446 F.3d
1000, 1003 (9th Cir. 2006). We also review questions of statutory construction de novo. Ileto v. Glock, Inc., 565 F.3d
1126, 1131 (9th Cir. 2009). Chevron deference to an agency’s
interpretation of an ambiguous statute applies only if the
agency involved has formally interpreted the statute or promulgated a rule based on an implicit interpretation of the statute. Gonzalez v. Oregon, 546 U.S. 243, 258 (2006). Here, the
BOP has not formally interpreted the relevant statutes with
regard to the issue at hand, nor has it promulgated rules
addressing the question. Therefore, this court performs the
statutory analysis de novo without any deference to the BOP’s
interpretation.
Analysis
I.

GCT credit under 18 U.S.C. § 3624(b)(1)

[1] 18 U.S.C. § 3624(b)(1) grants the BOP authority to
give a prisoner serving a federal sentence up to 54 days of
credit on his sentence each year if the BOP determines the
prisoner displayed exemplary compliance with institutional

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disciplinary regulations. Both parties stipulate that prisoners
housed in federal prison after being sentenced in federal court
are eligible for such GCT credit. Further, the BOP’s own regulations allow prisoners serving concurrent state-federal sentences in state prison to accrue GCT credit toward their
federal sentence after their federal sentence has been imposed.4
The sole question for review is whether a federal prisoner
may receive GCT credit for time he served in state prison—
discharging a state sentence—before he was sentenced in federal court.
[2] Section 3624(b)(1) provides that the BOP’s calculation
of GCT credit shall occur “at the end of each year of the prisoner’s term of imprisonment.” Thus, the BOP lacks authority
to grant GCT credit until the prisoner has served at least one
year of his term of imprisonment.5 In other words, GCT can
accrue only on the time a prisoner has actually served on his
federal sentence. See Barber, 130 S. Ct. at 2506-07. Under 18
U.S.C. § 3585, “[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.” This court has not addressed the
4

The BOP’s 2003 Program Statement for “Designation of State Institution for Service of Federal Sentence” provides that federal prisoners serving time in state prison after their concurrent federal sentence has been
imposed enjoy a presumption that they will receive the maximum 54 days
per year of GCT credit unless the state prison provides documentation of
behavior which warrants disallowance of that credit.
5
The statute includes an exception to this rule for sentences where the
actual time served will be less than one year (e.g. a sentence of a “year
and a day”). See § 3624(b)(1) (“[C]redit for the last year or portion of a
year of the term of imprisonment shall be prorated and credited within the
last six weeks of the sentence.”); see also Pacheco-Camacho v. Hood, 272
F.3d 1266, 1267-68 (9th Cir. 2001) (discussing the proration rule as
applied to a sentence of a “year and a day”). In such circumstances, the
BOP has the authority to prorate “within the last six weeks of the sentence” the GCT credit for the last year based on the time served. See
§ 3624(b)(1).

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issue of when such a federal sentence commences for a prisoner already serving time in state prison on related charges.
Therefore, we look to our sister circuits for guidance.
[3] The other circuits to address the question (the Second
and Fifth) have established a bright line rule: a federal sentence cannot be “backdated” so as to commence before the
district court imposed the federal sentence.6 See Gonzalez,
192 F.3d at 355; Flores, 616 F.2d at 841; see also Taylor v.
Reno, 164 F.3d 440, 445 (9th Cir. 1998) (noting that prisoner’s federal sentence did not begin until his arrival, after sentencing, at the detention facility designated by the BOP).7
For example, in Flores, the defendant (Flores) was convicted of three federal drug offenses on February 12, 1976,
and was sentenced to three concurrent ten-year sentences. 616
F.2d at 841. Flores later pleaded guilty to another federal drug
charge, and on December 13, 1976 was sentenced to ten years
6
Section 3585(b), under which the BOP must give a defendant “credit
toward the service of a term of imprisonment” for certain time “spent in
official detention prior to the date the sentence commences,” does not run
afoul of this rule, because the allowance of a “credit” on a sentence is not
equivalent to an alteration of the commencement date of the sentence. In
fact, the application of § 3585(b) depends on § 3585(a)’s definition of
when a sentence “commences.”
7
This interpretation of § 3585 and § 3624 has also been adopted by the
majority of the district courts to address this issue. See, e.g., Hickman v.
United States, 2006 WL 20489, at *2 (S.D.N.Y. Jan. 4, 2006) (holding that
§ 3624 “makes clear that the sentence that is potentially subject to credit
for good time served is the sentence the prisoner is currently serving—i.e.,
the federal sentence [which] ‘commences on the date the defendant is
received in custody’ ”); Montalvo v. United States, 174 F. Supp. 2d 10, 1215 (S.D.N.Y. Oct. 29, 2001) (rejecting “federal good time credit for time
spent in state custody [on a state sentence], before [the prisoner’s] federal
sentence began,” where the federal sentence was reduced under Guidelines
section 5G1.3(c) and application note to section 5G1.3(b)); see also Green
v. United States, 2009 WL 2982864 (N.D. Ohio Sept. 11, 2009); Divito v.
Wells, 2009 WL 2920847 (S.D. Ga. Sept. 8, 2009); but see Lopez v. Terrell, 697 F. Supp. 2d 549 (S.D.N.Y. 2010); Kelly v. Daniels, 469 F. Supp.
2d 903 (D. Or. 2007).

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in prison “to run concurrently with the sentence imposed (in
the first case[s]).” Id. Flores then brought a motion to vacate
his guilty plea claiming the prosecutor had told Flores that his
second sentence would be backdated to the beginning of his
first sentence such that he “would not have to do one more
day than he already had [to do under the first sentence].” Id.
(internal quotation marks omitted). The district court denied
Flores’ motion to vacate, and the Fifth Circuit affirmed. Id.
Most notably for the instant case, the panel held that Flores’
first and second 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.” Id. (citing Wilson v. Henderson, 468 F.2d 582, 584
(5th Cir. 1972)). What was true with regard to a prior federal
sentence in Flores is even more persuasive with regard to a
prior state sentence, as here.8
[4] Because a prisoner can receive GCT credit only on
time served on his federal sentence, and his federal sentence
8

Schleining contends, without citation to authority, that the “antibackdating” rule from Gonzalez and Flores should not apply where a federal judge pronounces a federal sentence to run concurrently with a partially discharged state sentence. Under his logic, the federal and state
sentences “merge” so that the time previously served in state prison can
be considered in calculating GCT credit. However, we reject this argument
as simply a variation of that made, and dismissed, in Gonzalez and Flores.
Although a district judge has discretion under U.S.S.G. § 5G1.3 to consider the defendant’s past state incarceration on related charges in determining an appropriate sentence, any concurrent sentence he issues is
entirely prospective. Here, for example, Judge Molloy acknowledged
Schleining’s prior service of 21 months in state custody for a related
crime, subtracted 21 months from the Guidelines’ upper range of 115
months, and sentenced Schleining to 94 months, to be served concurrently
with the remainder of his state sentence. Gonzalez and Flores make clear
that the court cannot “backdate” a federal sentence to make it concurrent
with a prior term of state imprisonment; it can make a federal sentence
concurrent only with a state sentence from the date of imposition forward.
Because we adopt the rule that concurrency applies only prospectively,
Schleining’s contention is unavailing.

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does not “commence” until after he has been sentenced in federal court, Schleining is not eligible for GCT credit for the 21
months he spent in state custody—serving a state sentence—
before imposition of his federal sentence. This holding not
only tracks the language of § 3585(a) and § 3624(b)(1); it also
makes practical sense. Once a federal defendant is sentenced
to a concurrent state-federal sentence, the BOP is on notice of
its responsibility either to house the prisoner itself or to monitor his continued incarceration in state prison. See 18 U.S.C.
§ 3621(a) (“A person who has been sentenced to a term of
imprisonment . . . shall be committed to the custody of the
Bureau of Prisons until the expiration of the term imposed
. . . .”); § 3621(b) (“The Bureau of Prisons shall designate the
place of the prisoner’s imprisonment . . . whether maintained
by the Federal Government or otherwise . . . .”). At this point,
the BOP can monitor the prisoner’s behavior, regardless
where he is housed, and determine what GCT credit is warranted each year.
Under a contrary rule, a state prisoner could be considered
to have begun serving his federal sentence months or years
before a federal grand jury even indicted him on federal
charges or he entered the BOP’s custody—as was the case here.9
Such a rule would pose significant administrative difficulties
for the BOP, which would be forced to award GCT credit to
prisoners for a period of time when the BOP might have been
unaware of the prisoner’s existence or behavior and unable to
monitor the prisoner or the state prison in which he was
housed.
Nor does this court’s decision in United States v. Drake, 49
F.3d 1438 (9th Cir. 1995), compel a contrary result. In Drake,
the defendant pleaded guilty in federal district court to being
a felon in possession of a firearm, with his sentence to run
9

Schleining was sentenced for the state law burglary conviction on
November 12, 2003, but was not indicted by a federal grand jury on the
felon-in-possession charge until June 2, 2004.

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concurrent to a previous state sentence for armed robbery in
which the firearm had been used. Id. at 1439. The district
court, increasing Drake’s offense level by four points because
of the state robbery charge, found that an appropriate sentence
would be 188 months. Id. Drake contended that the district
court should give him credit under U.S.S.G. § 5G1.3 for the
12 months he had already served in state court on the armed
robbery charge and sentence him to 176 months. Id. The district court held it was without discretion to depart below a 180
month mandatory minimum, and so sentenced Drake to 188
months. Id. This court vacated the sentence and remanded. Id.
at 1441.
In its narrowly-worded holding, this court held that where
a prior state charge had been taken into account to determine
the offense level for the federal charge, the time the defendant
served in state prison on the state charge can be “credit[ed]”
against his statutory minimum sentence under 18 U.S.C.
§ 924(e)(1). Id. We reasoned that we were obliged to construe
§ 924(e)(1) in this manner based on our “analysis of the relation between the concurrent sentencing statutes and the statutory mandatory minimums.” Id. at 1440. This analysis is
entirely inapplicable to our case, which requires us to consider
the relationship between § 3585(a), which defines when a federal sentence “commences,” and § 3624(b), which authorizes
the BOP to award GCT credit to federal prisoners in certain
circumstances, rather than the relationship between concurrent sentencing and a statutory mandatory minimum as in
Drake. Drake is distinguishable from this case on factual
grounds as well. First, Schleining presents no evidence as to
the critical factor in Drake—that the district court considered
Schleining’s underlying state conviction in enhancing his
criminality or criminal history under the Sentencing Guidelines. Second, Drake dealt with a version of § 5G1.3 that has
subsequently been amended four times, and the language the
panel relied on in Drake has now been removed. Third, this
case does not present a need to “harmonize” conflicting sections of the Sentencing Guidelines, as this court felt inclined

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to do in Drake—a case decided 10 years before United States
v. Booker restored sentencing discretion to district court
judges.
Because Drake did not purport to interpret either § 3585(a)
or § 3624(b), it does not counsel against following the wellreasoned opinions of our sister circuits on these matters of
statutory interpretation.
Conclusion
[5] For the foregoing reasons, we affirm the district court’s
denial of Schleining’s petition for writ of habeas corpus.
Because a prisoner can receive GCT credit under 18 U.S.C.
§ 3624(b) only on time he has served on his federal sentence,
and his federal sentence does not begin under 18 U.S.C.
§ 3585 until he has been sentenced in federal court, Schleining is not eligible for GCT credit for the 21 months he spent
in state custody—serving a state sentence—before imposition
of his federal sentence on July 8, 2005, notwithstanding the
district court’s statement that Schleining’s federal sentence
was to be served concurrent to his unfinished state sentence.
Thus, the BOP’s calculation of Schleining’s GCT credit and
of his expected release date must be upheld.
AFFIRMED.