Buitron v. Holder et al

Filing 3

ORDER DISMISSING CASE. Signed by Chief Judge David R. Herndon on 8/19/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GABRIEL BUITRON,
No. 96705-080,
Petitioner,
vs.

CIVIL NO. 14-CV-00875-DRH

ERIC HOLDER, and
JAMES CROSS,
Respondents.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Gabriel Buitron, an inmate currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois, is before the Court pursuant to 28
U.S.C. § 2241, seeking a writ of habeas corpus.

More specifically, Buitron

challenges the Bureau of Prisons’ execution of his sentence.
This Section 2241 petition is before the Court for preliminary review. Rule
4 of the Rules Governing Section 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases.

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Procedural History
In 1997, petitioner Buitron was convicted in Mexico of aggravated
homicide; he was sentenced to imprisonment for 27 years, six months (330
months). Petitioner was transferred to the custody of the United States Bureau of
Prisons to serve his sentence, pursuant to the Treaty Between the United States of
America and the United Mexican States on the Execution of Penal Sentences, Nov.
25, 1976, 28 U.S.T. 7399 (hereafter “the Treaty”), and its implementing
legislation,
Pursuant to 18 U.S.C. § 4106A(b)(1)(A), the United States Parole
Commission adapted Buitron’s foreign sentence so that it can be administered
under the laws of the United States. The Commission concluded that Buitron
should serve a full term of 312 months, and a 60-month term of supervised
release, or until the full term of the foreign sentence—calculated to be February
14, 2025—whichever is earlier (see Doc. 1, pp. 2, 19-20, 23). 1
Buitron appealed the Commission’s determination to the Court of Appeals
for the Fifth Circuit in accord with Section 4106A(b)(2)(B), which dictates that the
determination proceed as though it were a sentence. The Commission’s adapted

1

The Parole Commission is required to “determine a release date and a period and conditions of
supervised release . . . as though the offender were convicted in a United States district court of a
similar offense.” 18 U.S.C. § 4106A(b)(1)(A). See also Odili v. U.S. Parole Comm’n, 474 F.3d
1255, 1259 (11th Cir. 2007); Asare v. U.S. Parole Comm’n, 2 F.3d 540, 543 (4th Cir. 1993). In
setting a release date and term of supervised release, the Parole Commission is constrained by 18
U.S.C. § 4106A(b)(1)(C), which provides that “[t]he combined periods of imprisonment and
supervised release that result from such determination shall not exceed the term of imprisonment
imposed by the foreign court on that offender.”

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sentence (which included an upward departure) was affirmed. Buitron v. United
States Parole Commission, 73 Fed.Appx. 759 (5th Cir. 2003).
In 2004, Buitron filed what was construed as a Section 2241 petition
raising Sixth Amendment challenges to the Commission proceedings.

The

petition was dismissed due to lack of jurisdiction because the grounds for relief
should have been brought in the direct appeal to the Fifth Circuit. Buitron v.
Veltri, Case No. 04-cv-676-WDS (S.D. Ill., Doc. 13 Filed Sept. 6, 2005). No appeal
was taken.
In 2006, Buitron filed another attack upon the validity of the sentence
conversion, challenging a wide variety of perceived constitutional defects in the
Commission’s proceedings. Buitron invoked 28 U.S.C. § 451 as the jurisdictional
basis for the petition, but the Court perceived that Buitron was attempting to file
a Section 2255 petition and dismissed the petition for lack of jurisdiction.
Buitron v. Warden, Case No. 06-cv-421-DRH (S.D. Ill., Doc. 3 filed July 6, 2006).
No appeal was taken.
Most recently, in 2013, Buitron filed a Section 2241 petition purportedly
asserting a treaty violation relative to how the term of supervised release and good
conduct credits are being imposed by the Bureau of Prisons—which he insisted
was not a challenge to the Commission’s sentence.

The Court concluded that

Buitron was in fact challenging the Commission’s sentence, asserting claims not
cognizable under Section 2241.

Nevertheless, out of an overabundance of

caution, the Court went on to analyze the claims, finding them meritless. Put

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succinctly, it was explained that whenever Buitron was released from prison after
the application of good conduct credits, his 60-month term of supervised release
was capped so that the term of imprisonment and term of supervised did not, in
combination, exceed the 330-month foreign sentence. Buitron v. Holder, et al.,
Case No. 13-cv-974-DRH (S.D.Ill., Doc. 23 filed Feb. 10, 2014). No appeal was
taken.
The current Section 2241 petition was filed six months after Buitron’s 2013
Section 2241 petition was dismissed.
The Petition
In dismissing Buitron’s 2013 petition, the Court noted that if Buitron had
truly been challenging the Bureau of Prisons’ implementation of the sentence, he
would have made arguments regarding the calculation of the good time credits
and how they altered the release date.
discussion of the sentence.

The Court went on to offer a detailed

Apparently construing the Court’s comment as an

invitation and ignoring the analysis of his sentence in the Court’s previous
decision, Buitron now offers some discussion of the calculation of his good
conduct credits vis-à-vis, his release date and full-term sentence.
Buitron observes that a 312-month term of imprisonment and a 60-month
term of supervised release total 372 months, which is well beyond the 330-month
maximum sentence. He would calculate his sentence by working back from the
312 month mark, first by accounting for a 60-month term of supervised release,
and then deducting the maximum number of good conduct credits possible,
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which would result in release from prison on April 14, 2017, and the completion
of his full aggregate sentence on April 14, 2022—totaling 278 months (see Doc. 1,
p. 26).
Analysis
Dissatisfaction with the Bureau of Prisons’ determinations must be
addressed in a habeas corpus petition in the federal district court where the
transferred offender is incarcerated at the time the petition is filed. Bishop v.
Reno, 210 F.3d 1295, 1303 n.11 (11th Cir. 2000); Trevino–Casares v. U.S.
Parole Comm’n, 992 F.2d 1068, 1070 (10th Cir. 1993).
The thrust of the petition remains—as was argued in the 2013 petition—
that a 312-month term of imprisonment followed by a 60-month term of
supervised release violates the Treaty and the cap imposed under 18 U.S.C. §
4106A(b)(1)(C).

In other words, Buitron is still attempting to challenge the

sentence imposed by the Parole Commission, an attack not cognizable under
Section 2241.

See Bennett v. Parole Comm’n, 83 F.3d 324, 328 (10th Cir.

1996). In any event, Buitron’s arguments regarding the execution of the sentence
by the Bureau of Prisons will be addressed and this matter will be put to rest.
Buitron’s position is fatally flawed. He steadfastly refuses to acknowledge
that the Parole Commission capped his aggregate sentence, as required by 18
U.S.C. § 4106A(b)(1)(C). The Commission’s adapted sentence clearly states that,
based on an upward departure from the relevant Sentencing Guidelines sentence,
Buitron was to remain in prison for 312 months (see Doc. 1, p. 19). Taking into

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account full good conduct credit, his projected release date is June 29, 2021 (see
Doc. 1, p. 19). Any “labor credits and good conduct time credits” from his time in
Mexico would be deducted from that date (see Doc. 1, p. 19), but Buitron does
not offer any discussion on that point. It was further ordered that after release
from prison, Buitron is to serve “a 60 month period of supervised release, or until
the full term date of [his] foreign sentence currently calculated to be 2-14-2025,
whichever is earlier” (Doc. 1, p. 19)(emphasis added). Thus, Buitron incorrectly
premises his sentencing calculation upon a mandatory full 60-month term of
supervised release. The amount of time he will spend on supervised release will
depend on how much time is left after his release from prison until he is capped
by the 312-month full term of February 14, 2025—which is 312 months from the
commencement of his time in the United States) (see Doc. 1, p. 19). 2
The projected number of good conduct credits, which is key to determine
how long Buitron can expect to spend on supervised release, does not appear to
be in real dispute, in that the Bureau of Prisons calculation gives Buitron full
credit at a rate of 54-days per year, totaling 1,223 days. Buitron uses that same
rate in his otherwise flawed calculation (compare Doc. 1, p. 25 and p. 26). 3 With
full credit, he is slated to be released from prison on October 10, 2021 (see Doc.

2

As the Court has explained before, good conduct credits do not reduce the duration of Buitron’s
aggregate sentence, they only reduce the portion of his sentence that must be served in prison.
See 28 C.F.R. § 2.68(a)(5).

3

Buitron’s mistake in working backward from a presumed 60-day term of supervised release
causes him to compound his miscalculation with respect to the amount of time he would be
imprisoned earning good conduct time. Thus, he projects that he would earn 1,028 days and be
released on April 14, 2017 (see Doc. 1, p. 26).

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1, p. 24). Consequently, he would spend 46 months and four days on supervision
until his full term expires on February 14, 2025.
The Court finds no error in how the Bureau of Prisons has calculated
Buitron’s sentence; therefore, his Section 2241 petition shall be denied in all
respects.
Conclusion
IT IS HEREBY ORDERED that, for the reasons stated, Gabriel Buitron’s
Section 2241 petition for writ of habeas corpus (Doc. 1) is DENIED on the merits.
The Clerk of Court is directed to enter judgment accordingly and close this case.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED.R.APP.P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal. See FED.R.APP.P. 24(a)(1)(C).
If petitioner does choose to appeal and is allowed to proceed as a pauper,
he will be required to pay a portion of the $505.00 appellate filing fee in order to
pursue his appeal (the amount to be determined based on his prison trust fund
account records for the past six months) irrespective of the outcome of the appeal.
See FED.R.APP.P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir.
1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A timely motion
filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal

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deadline. It is not necessary for petitioner to obtain a certificate of appealability.
Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).

Digitally signed by
David R. Herndon
Date: 2014.08.19
12:48:27 -05'00'

IT IS SO ORDERED.
August 19, 2014

Chief Judge
United States District Court

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