Acosta v. Outlaw

Filing 15

MEMORANDUM OPINION AND ORDER dismissing 2 Lorenzo Acosta's Petition for Writ of Habeas Corpus with prejudice. Signed by Magistrate Judge Beth Deere on 3/8/10. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION L O R E N Z O ACOSTA R e g # 08176-180 V S. NO. 2:09-CV-00029-BD PETITIONER T .C . OUTLAW, Warden, Federal Correctional Complex, F o r r e st City, Arkansas M E M O R A N D U M OPINION AND ORDER R ESPON D EN T P e titio n e r Lorenzo Acosta filed this pro se petition for writ of habeas corpus (d o c k e t entry #2) under 28 U.S.C. 2241 to challenge the manner in which the Bureau of P ris o n s ("BOP") has calculated his sentence. At the time Petitioner filed his petition, he w a s in custody at the Federal Correctional Complex ("FCC"), Forrest City, Arkansas.1 F o r the reasons set forth below, the petition must be DISMISSED. I. F acts P e titio n e r was arrested by state authorities in Nolan County, Texas on June 12, 2 0 0 4 . On June 16, 2004, he was charged in the United States District Court for the N o rth e rn District of Texas with conspiracy to distribute and possession with intent to d is trib u te marijuana, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B)(vii) and 846. O n June 21, 2004, the United States Marshal took temporary custody of Petitioner f ro m the authorities in Nolan County, Texas, pursuant to a writ of habeas corpus ad P e titio n e r is now incarcerated at the Federal Correctional Institution, La Tuna, in A n th o n y, Texas. 1 prosequendum. (#8-2 at p. 13) On October 1, 2004, the United States District Court for th e Northern District of Texas sentenced Petitioner to twenty-four (24) months' im p ris o n m e n t for violating the terms of his supervised release on a previous federal c o n v ic tio n . (#8-2 at p. 15) O n November 18, 2004, the same District Court sentenced Petitioner to 150 m o n th s ' imprisonment for possession with intent to distribute more than 100 kilograms of m a riju a n a and aiding and abetting. (#8-2 at p. 17) A f te r sentencing, the United States Marshal attempted to return Petitioner to Nolan C o u n ty authorities, but was informed that the state had dismissed all of its charges against P e titio n e r. (#8-2 at p. 13) Accordingly, the Marshal took custody of Petitioner, and he b e g a n serving his federal sentences. (#8-2 at p. 13) T h e BOP informed Petitioner that his 150-month sentence would be consecutive to h is 24-month sentence, for an aggregate sentence of 174 months. (#8-2 at pp. 6-8) In this p e titio n , Petitioner challenges the BOP's calculation of his sentence. Specifically, P e titio n e r claims that his 150-month sentence should run concurrently with his 24-month s e n te n c e , for an aggregate sentence of 150 months.2 T h e parties agree that Petitioner has exhausted his administrative remedies with re s p e c t to his claim. (#8-2 at p. 3) 2 2 Respondent contends that theBOP has calculated Petitioner's sentence correctly u n d e r 18 U.S.C. 3584(a). (#8 at p. 2) For the reasons set forth below, Petitioner's p e titio n must be dismissed. II. D is c u s s io n T h e Court reviews the BOP's decision for abuse of the agency's "substantial d is c re tio n under 18 U.S.C. 3621." Fegans, 506 F.3d 1101, 1105 (8th Cir. 2007). The Attorney General, through the BOP, has responsibility for computing federal s e n te n c e s and determining the commencement of sentences under 18 U.S.C. 3585. United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006) (citing United States v. W ils o n , 503 U.S. 329, 334-35, 112 S.Ct. 1351 (1992)). Respondent contends that because the Judge was silent about whether the s e n te n c e s he imposed were to be served concurrently or consecutively, the BOP is re q u ire d by law to compute the federal sentences as running concurrently. (#2 at p. 3, 9) Under 18 U.S.C. 3584(a), "when a federal defendant is `already subject' to `an u n d is c h a rg e d term of imprisonment,' [ 3584] expressly authorizes the district court to m a k e the federal sentence run `concurrently or consecutively' with the undischarged te rm ." Fegans, 506 F.3d at 1103; See also U.S.S.G. 5G1.3; United States v. Shafer, 438 F .3 d 1225, 1227 (8th Cir. 2006). If the court is silent, however, then under 3584(a), th e re is a presumption that the sentences are consecutive. 18 U.S.C. 3584(a). Title 18 U .S .C . 3584(a) provides: 3 (a) Imposition of concurrent or consecutive terms. If multiple terms of im p ris o n m e n t are imposed on a defendant at the same time, or if a term of im p ris o n m e n t is imposed on a defendant who is already subject to an u n d is c h a rg e d term of imprisonment, the terms may run concurrently or c o n s e c u tiv e ly, except that the terms may not run consecutively for an a tte m p t and for another offense that was the sole objective of the attempt. M u ltip le terms of imprisonment imposed at the same time run concurrently u n le s s the court orders or the statute mandates that the terms are to run c o n s e c u tiv e ly. Multiple terms of imprisonment imposed at different times r u n consecutively unless the court orders that the terms are to run c o n c u r r e n tly . 18 U.S.C. 3584(a) (emphasis added). In this case, the same District Court Judge imposed both sentences. He was aware o f the sentence on the supervised release violation and, under the statute, had discretion to o rd e r the second sentence (for possession with intent to distribute marijuana) to be served c o n c u rre n tly with the first. The Judge chose, however, to be silent in the judgment and c o m m itm e n t order as to the manner in which the second sentence was to be served. Given that silence, the BOP's construction of the sentence, that is, to run the sentences c o n s e c u tiv e ly under 18 U.S.C. 3584(a), is not unreasonable or contrary to law. III. C o n c lu s io n A c c o rd in g ly, Lorenzo Acosta's Petition for Writ of Habeas Corpus (#2) is D IS M IS S E D with prejudice. IT IS SO ORDERED, this 8th day of March, 2010. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 4

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