ROSS v. JONES

Filing 20

ORDER DENYING THE PETITION re 1 Petition. The petition for relief under 28 U.S.C. § 2241 is denied. The clerk must enter judgment in close the file. Signed by JUDGE ROBERT L HINKLE on 5/5/2017. (tdl)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
STEPHANIE ROSS,
Petitioner,
v.

CASE NO. 4:15cv427-RH/CAS

TAMMY JONES, WARDEN,
Respondent.
_____________________________/
ORDER DENYING THE PETITION
This case presents the recurring issue of whether successive federal and state
sentences should be served consecutively or concurrently. See generally Setser v.
United States, 566 U.S. 231 (2012). The Bureau of Prisons has made the petitioner
Stephanie Ross’s sentences consecutive. She challenges that decision by petition
for a writ of habeas corpus under 28 U.S.C. § 2241. The petition is before the court
on the magistrate judge’s report and recommendation, ECF No. 13, and the further
filings by both sides, ECF Nos. 16 and 17. I have reviewed the issues de novo.
Ms. Ross pleaded guilty in the Southern District of Georgia to one count of
bank fraud and one count of aggravated identity theft. The court sentenced her to
70 months in the Bureau of Prisons. The presentence report indicated that there
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were pending state charges. But at least as shown by this record, the court did not
address the question whether the 70-month federal sentence should be served
concurrently with or consecutively to any later-imposed state sentence.
Ms. Ross later entered into a plea agreement in state court under which she
was sentenced to 60 months to be served concurrently with the federal sentence.
The record shows that the most significant state charges arose from “relevant
conduct” within the meaning of the United States Sentencing Guidelines Manual.
See Presentence Report, ECF No. 17-3, at ¶ 58 (“These [pending state] charges are
related to the instant offense conduct.”). But one state charge was possession of
marijuana—an offense that apparently did not constitute relevant conduct and that
was not taken into account in determining the guideline range under the United
States Sentencing Guidelines.
Because state authorities had arrested Ms. Ross first, she served her state
sentence in a state facility. Upon completion of the state sentence, she was
transferred to the Bureau of Prisons. Following its standard procedure, the Bureau
asked the federal sentencing judge’s opinion on whether the state facility should be
retroactively designated for service of the federal sentence, thus making the
sentences effectively concurrent. See Barden v. Keohane, 921 F.2d 476 (3d
Cir.1990); Irish v. Augustine, No. 5:11cv141-RH (N.D. Fla. Dec. 9, 2011)
(granting a writ of habeas corpus because the Bureau’s decision not to make a

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retroactive designation of a state facility was an abuse of discretion); Richardson v.
United States, No. 4:02cv298-RH/WCS, 2005 WL 2406039 (N.D. Fla. Sept. 29,
2005).
The Bureau received a response from the federal sentencing judge, conveyed
through a probation officer, indicating that the judge “does not recommend that
Ross be awarded credit toward her federal sentence for the time that Ross spent in
custody that was credited toward any other sentence.” ECF No. 8-1 at 3. The
Bureau reasonably interpreted this as the judge’s recommendation not to make a
retroactive designation of the state facility.
When I first reviewed the report and recommendation, the record did not
show that the Bureau provided the judge the pertinent information: first, whether
Ms. Ross’s state sentence was imposed for relevant conduct within the meaning of
United States Sentencing Guidelines Manual (“Guidelines Manual”) § 1B1.3; and
second, that Ms. Ross pleaded guilty in state court based on a plea agreement
calling for a concurrent sentence. I entered an order noting the absence of
information in the record on these points. In response, the government filed
materials showing that the judge had the pertinent information and nonetheless did
not recommend that the sentences be made concurrent.
Ms. Ross asserts the issue should be controlled by the state court’s decision
to make the sentences concurrent, not by any decision of the federal court or the

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Bureau of Prisons to make the sentences consecutive. But the law is to the
contrary. The decision whether to make the federal sentence consecutive or
concurrent with the state sentence is a federal decision. See generally Setser v.
United States, 566 U.S. 231 (2012). The state court’s ruling is not controlling.
Ms. Ross also says that under Guidelines Manual § 5G1.3(c), the federal
court was required to make the sentences concurrent. This is indeed what
§ 5G1.3(c) provides, at least as to that part of the state sentence arising from
“relevant conduct.” But this does not entitle Ms. Ross to relief on this § 2241
petition.
This is so for three reasons. First, the state sentence arose in part—though
probably only a very small part—from possession of marijuana, an offense that
apparently was not relevant conduct. Under Guidelines Manual § 5G1.3(d), a
federal sentence may be made consecutive to or concurrent with a state sentence
that does not arise from relevant conduct. Second, the Guidelines Manual is
advisory, not mandatory; a sentencing court must consider but need not adhere to
the Guidelines Manual. See United States v. Booker, 543 U.S. 220 (2005). Third,
any collateral attack based on an error in application of the Guidelines Manual at
the time of sentencing must be brought in the sentencing court under 28 U.S.C.
§ 2255, not in the district of incarceration under § 2241.

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Two other contentions also may properly be pursued, if at all, only in the
district of conviction. First, Ms. Ross’s response to the report and recommendation
criticizes her attorney’s handling of this issue at the time of the federal sentencing.
Any claim that the attorney rendered ineffective assistance at that time could
properly be raised, if at all, in a § 2255 motion in the sentencing court. Second, any
request for the sentencing court to reconsider its recommendation against
concurrent sentences would properly be directed to the court that made the
recommendation.
The question on this § 2241 petition is whether the Bureau of Prisons abused
its discretion by accepting the sentencing court’s recommendation rather than
rejecting that recommendation on grounds including its own after-the-fact
assessment of what the sentencing court should have done at the time of sentencing
under Guidelines Manual § 5G1.3. Accepting the sentencing court’s
recommendation was not an abuse of discretion.
For these reasons,
IT IS ORDERED:
The petition for relief under 28 U.S.C. § 2241 is denied. The clerk must
enter judgment in close the file.
SO ORDERED on May 5, 2017.
s/Robert L. Hinkle
United States District Judge
Case No. 4:15cv427-RH/CAS