Juan Becerra, Jr. v. United States of America

Filing 21

MEMORANDUM OPINION AND ORDER DENYING PETITION, DISMISSING WITH PREJUDICE, AND DENYING A CERTIFICATE OF APPEALABILITY by Magistrate Judge Patricia Donahue. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JUAN BECERRA, JR.,
Petitioner,

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v.

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J. ENGLEMAN, Acting Warden, 1
Respondent.

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Case No. CV 19-9934-PD
MEMORANDUM OPINION
AND ORDER DENYING
PETITION, DISMISSING
WITH PREJUDICE, AND
DENYING A CERTIFICATE
OF APPEALABILITY

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I.

Procedural History and Petitioner’s Contention
Petitioner Juan Becerra, Jr. filed a Petition for Writ of Habeas Corpus

by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. Petitioner is
currently incarcerated at the Federal Correctional Complex-Lompoc, serving
concurrent sentences imposed in two separate cases in the Southern District
of Texas. The Petition challenges the Bureau of Prisons’ computation of the
sentence in one of those cases and seeks an order from this Court modifying
the sentence commencement date or granting equivalent credit.

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Pursuant to Fed. R. Civ. P. 25(d), J. Engleman, who currently serves as
acting complex warden of Federal Correctional Complex-Lompoc, is hereby
substituted as the proper Respondent in this case.
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The parties consented to the jurisdiction of the United States

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Magistrate Judge to conduct all further proceedings in the case, including the

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entry of final judgment. [Dkt. Nos. 4, 11.] Respondent filed an Answer and

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Petitioner filed two replies.
For the reasons set forth below, the Court denies and dismisses the

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Petition with prejudice because the Bureau of Prisons computed the sentence

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in accordance with the governing statute and Ninth Circuit precedent.

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II.

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Pertinent Facts
In March 2011, Petitioner was arrested in the Southern District of

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Texas for possession of marijuana with intent to distribute. He was detained

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from the date of his arrest until June 2011, when the charges were dismissed.

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[Dkt. No. 12-1 at 5, 23.]

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In September 2014, Petitioner was arrested and charged in Case No.

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2:14-CR-00728-001 (the “2014 Case”) in the Southern District of Texas for

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conspiracy to transport undocumented aliens. He was released on bond for

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approximately six months, from September 2014 and March 2015, until he

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was re-arrested after testing positive for cocaine. In January 2015, a jury

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convicted of conspiracy to transport undocumented aliens and aiding and
abetting the transportation of an undocumented alien. On June 18, 2015,
Petitioner was sentenced to a term of 33 months on both counts, to run
concurrently. [Id. at 5-6, 32.]
After Petitioner began serving the sentence imposed in the 2014 Case,
he was indicted in the Southern District of Texas on August 26, 2015, on
charges related to the 2011 arrest. On September 29, 2015, Petitioner was
arrested and made an initial appearance in Case No. 2:15-CR-00742-002
(“2015 Case”). On June 20, 2016, the court accepted Petitioner’s guilty plea to
one count of conspiracy to possess with intent to distribute more than 1,000
kilograms of marijuana, and on October 21, 2016, Petitioner was sentenced to
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120 months incarceration. [Id. at 25, 43, 52.] The judgment of conviction in

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the 2015 Case stated: “This term consists of 120 months to be served

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concurrently with the undischarged sentence of imprisonment in [the 2014

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Case].” [Id. at 52.] It also contained the sentencing court’s recommendation

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“that the defendant receive credit for incarceration from the time of his arrest

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on the federal warrant for the instant offense.” [Id.] During the sentencing

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hearing, the Court informed the probation officer, who was present, that the

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Court intended this specific credit to be his recommendation and ordered that

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it be part of the judgment. [Dkt. No. 12 at 27-28.]

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For administrative purposes, the Bureau of Prisons (“BOP”) aggregated

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both sentences into a single sentence. In doing so, the BOP set the sentence

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commencement date as June 18, 2015, which is the date when the 33-month

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sentence in the 2014 Case was imposed. The BOP then recognized the

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commencement date of the sentence in the 2015 Case as October 21, 2016, the

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date when Petitioner was sentenced to 120 months. Thus, the two sentences

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do not overlap entirely. Credit was applied to the single aggregated sentence

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for the following periods:

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March 30, 2011 to June 21, 2011 (in custody for the offense
related to the 2015 case);

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September 9, 2014 to September 15, 2014 (in custody for the
2014 Case); and

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March 12, 2015 to June 17, 2015 (in custody for the 2014
case).

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The BOP did not credit the period between Petitioner’s indictment and

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sentencing in the 2015 Case – August 2015 to October 2016 – to the sentence

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for the 2015 Case, but instead credited it as time served on the sentence from

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the 2014 Case. [Dkt. No. 12-1 at 8-9.]

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Petitioner exhausted all administrative remedies challenging the BOP’s
calculation in June 2018. [Id. at 4-5.]

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III.

Discussion

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To obtain relief under 28 U.S.C. § 2241, a petitioner must show that

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“[h]e is in custody in violation of the Constitution or laws or treaties of the

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United States." 28 U.S.C. § 2241(c)(3). A federal prisoner may challenge the

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“manner, location, or conditions of the sentence's execution” in the custodial

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court through a habeas action. Hernandez v. Campbell, 204 F.3d 861, 865

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(9th Cir. 2000) (citation omitted).

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Calculation of a federal prison term is governed by 18 U.S.C. § 3585,
which provides:
(a) Commencement of sentence.—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.
(b) Credit for prior custody.—A defendant shall be given credit
toward the service of a term of imprisonment for any time he has
spent in official detention prior to the date the sentence
commences—
(1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585.
The sentencing court does not compute the sentence. The BOP, acting
with authority delegated by the Attorney General, computes a federal
prisoner's sentence. United States v. Wilson, 503 U.S. 329, 334 (1992)
(Ҥ 3585(b) does not authorize a district court to compute the credit at
sentencing.”); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998). A
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prisoner may seek habeas relief on the ground that the BOP’s computation

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unlawfully affects the length of his sentence. Schleining v. Thomas, 642 F.3d

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1242, 1244 (9th Cir. 2011) (upholding BOP’s computation of good time credits

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and expected release date), cert. denied, 132 S. Ct. 2415 (2012).
Petitioner contends that the BOP’s computation violates his Fourth,

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Fifth, Sixth, Eighth and Fourteenth Amendment rights because the

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sentencing court ordered that Petitioner’s sentence of 120 months in the 2015

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Case be served concurrently with the 33-month sentence imposed in the 2014

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Case. He argues that the Court was clear in its intention that Petitioner

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receive credit for the time after he was indicted in the 2015 Case and asks

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this Court to recognize the sentence’s commencement date as August 27,

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2015, or to grant him credit for the time from August 27, 2015, to October 21,

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2016.

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a. A Sentence May Not Commence Prior to its Imposition
“[U]nder § 3585(a), ‘[a] sentence to a term of imprisonment commences

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on the date’ that the federal government has primary jurisdiction over a

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defendant who is ‘received in custody awaiting transportation to’ the official

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detention facility.” Johnson v. Gill, 883 F.3d 756, 764 (9th Cir. 2018)
(alteration in original) (quoting 18 U.S.C. § 3585(a)). A sentence cannot
commence until after it has been imposed by the court, even where the
sentence is ordered to run concurrently with an existing sentence. Schleining,
642 F.3d at 1244 (adopting the interpretation of Second and Fifth Circuits).
The Ninth Circuit in Schleining concluded that good time credit could not be
awarded for time served in state custody prior to the imposition of a federal
sentence ordered to run concurrently thereto. The court was persuaded by the
reasoning in United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980), which
involved concurrent federal sentences, that a federal sentence does not
commence prior to its imposition. Schleining, 642 F.3d at 1248 (“What was
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true with regard to a prior federal sentence in Flores is even more persuasive

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with regard to a prior state sentence, as here.”).

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Here, as in Flores, the concurrent sentences are both federal. The

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sentence in the 2015 Case could not commence before it was imposed on

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October 21, 2016, regardless of the Court’s intention and order. See Taylor v.

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Reno, 164 F.3d 440, 445 (9th Cir. 1998) ("Any statement by the court

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prescribing when a sentence will begin to run is mere surplusage.").

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Petitioner’s citation to United States v. Grimon, 440 Fed. Appx. 830, 831 (11th

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Cir. 2011) is unpersuasive because the issue there was that the sentencing

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court had questioned its ability to impose a concurrent sentence at all and

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ultimately imposed a federal sentence consecutive to undischarged state

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sentences. 2 No such sentence was imposed here.

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Therefore, the BOP did not violate any federal right in setting the
commencement date of Petitioner’s sentence in the 2015 Case.
b. No Credit for Prior Custody May Be Granted When it is
Already Credited to Another Sentence

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Under section 3585(b), a defendant may be credited for time served in
custody unless that time has already "been credited against another
sentence." See Mont v. United States, 139 S.Ct. 1826, 1834 (2019) (quoting 18
U.S.C. § 3585(b)) ("Congress denies defendants credit for time served if the
detention time has already 'been credited against another sentence.’”)
Petitioner received credit to his single aggregated sentence for three
separate periods. In practice, the aggregate sentence consisting of the two
concurrent sentences operates in the following manner:

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Petitioner also argues that the BOP has the authority to implement a fully
concurrent sentence under 18 U.S.C. § 3621(b), but that section addresses the BOP’s
designation of the place of imprisonment when there are multiple sentences, not the
length of the sentences.
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1.

The 33-month sentence in the 2014 Case began in
September 2015, pursuant to § 3585(a), on the date it was
imposed.

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The 120-month sentence in the 2015 Case began in October
2016, pursuant to § 3585(a), on the date it was imposed.

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The sentences began to run concurrently on the date the
sentence in the 2015 Case sentence commenced. All
subsequent time is served in both cases, concurrently.

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The single aggregate sentence is credited by two periods
that apply to the 2014 Case and one period that applies to
the 2015 Case.

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Petitioner seeks credit in the 2015 Case for the period from August 27,

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2015 to October 21, 2016, when he was in custody, because an arrest warrant

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had issued in that case. During that period, Petitioner was serving the

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sentence in the 2014 Case.

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Petitioner’s argument misinterprets section 3585(b). The period at

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issue (from August 27, 2015 to October 21, 2016) cannot be credited toward

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the sentence in the 2015 Case because it was credited toward his sentence in

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the 2014 Case. If Petitioner were granted his desired relief, he would receive

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double credit; once toward the 2014 Case and once toward the 2015 Case. He

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is not entitled to credit for what would be pretrial detention in the 2015 Case

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because during that time he was serving the sentence imposed in the 2014

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Case. See Aguilar v. Entzel, 770 Fed. Appx. 878, 879 (9th Cir. 2019) (no credit

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for pretrial detention in one federal case where it has been credited to another

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federal sentence).

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Petitioner argues that he is essentially serving consecutive sentences. 3
Consecutive sentences never run at the same time, and one sentence does not

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In the Reply filed on June 10, 2020, Petitioner defines a concurrent sentence
and provides an example of two concurrent sentences, one of 5 years and the other,
15 years, which results in a total of 15 years’ incarceration. [Dkt. No. 20 at 4.] This
argument fails to recognize that if the sentences were imposed on two different
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commence until the completion of another. See, e.g., Sherman v. Scribner,

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2011 U.S. Dist. LEXIS 156508, at *66 (C.D. Cal. 2011) (state petitioner

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sentenced to a total of 140 years to life, consisting of five consecutive

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sentences of 25 years to life, and three consecutive sentences of five years);

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Rodarte v. Schumming, 2017 U.S. Dist. LEXIS 73726, at *5 (D. Mont. 2017)

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(“Defendants have correctly treated [the petitioner’s] four sentences

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consecutively in that he must finish serving each 20 year sentence before he

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starts serving the next 20 year sentence.”). If the BOP had computed a term

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composed of two consecutive sentences in Petitioner’s case, the sentence in the

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2015 Case would not have commenced until the sentence in the 2014 Case

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had concluded. That is not what occurred here.
In sum, the operative statute and Ninth Circuit caselaw determine

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when Petitioner’s sentence commences and what credit may be applied. The

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BOP's calculation of credit in his concurrent sentences correctly applied that

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law.

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IV.

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Order
For these reasons, the Petition is denied and the action is dismissed

with prejudice. Further, because Petitioner has not made a substantial
showing of the denial of a constitutional right, he is not entitled to a

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dates, they would not overlap completely even if that were the sentencing court’s
intention.

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certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b);

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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S.

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473, 484 (2000).

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Dated: January 07, 2021

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____________________________________
PATRICIA DONAHUE
UNITED STATES MAGISTRATE JUDGE

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