BURR v. KALLIS

Filing 28

ORDER DENYING HABEAS PETITION AND DIRECTING ENTRY OF FINAL JUDGMENT - Petitioner Charles Burr has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging the Bureau of Prisons' decision to not credit toward his f ederal sentence time served in state custody that was applied to a state- court sentence. Dkt. 1 . Mr. Burr has not shown that the BOP has erred in calculating his sentence. Mr. Burr's petition for writ of habeas corpus under 28 U.S.C.
67; 2241 is denied with prejudice. His motions for Court assistance, and status update, dkts. 24 and 25 , are granted to the extent that the Court has now ruled on his habeas petition. Signed by Judge James Patrick Hanlon on 9/24/2024. (See Order.) Copy mailed to Petitioner. (BAA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CHARLES BURR,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
KALLIS,
Respondent.

No. 2:22-cv-00173-JPH-MG

ORDER DENYING HABEAS PETITION
AND DIRECTING ENTRY OF FINAL JUDGMENT
Petitioner Charles Burr has filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 challenging the Bureau of Prisons' ("BOP") decision to
not credit toward his federal sentence time served in state custody that was
applied to a state-court sentence. Dkt. 1. For the reasons stated below, his
habeas petition is denied.
I.
Background
In 2020, Mr. Burr pled guilty to conspiracy to distribute and possession
with intent to distribute 500 grams or more of methamphetamine in the U.S.
District Court for the District of Nebraska and agreed to a stipulated sentence
of 204 months in prison. United States v. Burr, No. 8:19-cr-00101-RFR-MDN,
dkts. 119, 120, 133, 134 (D. Neb. Sept. 15, 2020) ("Cr. Dkt."). At sentencing,
Mr. Burr's counsel asked the sentencing judge to give Mr. Burr credit for his
pretrial incarceration starting on September 15, 2018. Cr. Dkt. 154 at 4. The
government agreed that the Court should recommend that he receive credit
1

back to that date. Id. at 5. The Court then considered the 18 U.S.C. § 3553(a)
sentencing factors and imposed a sentence of 204 months of imprisonment.
Id. The Court then stated, "I recommend to the Bureau of Prisons that the
defendant receive credit for time served since September 15, 2018." Id. at 6.
Final judgment entered on September 15, 2020. Cr. Dkt. 134. The judgment
stated that Mr. Burr was sentenced to 204 months in prison. Id. It also
included several recommendations to the BOP, including that "Defendant
should be given credit for time served since September 15, 2018," which
amounts to 24 months' credit. Id.
The BOP then calculated Mr. Burr's sentence and considered whether
Mr. Burr was entitled to any credit under 18 U.S.C. § 3585(b) for time served in
custody before he began serving his federal sentence. The parties agree that
the BOP properly determined Mr. Burr had already received credit toward
various state sentences for the time period at issue in his habeas petition. See
generally dkt. 18 (reply brief).
In brief, Mr. Burr was also in custody in connection with several state
charges while his federal case was pending. When he was sentenced on the
state charges, the state courts gave him credit toward his state sentences for
the time he had already served in custody on those charges. In total, Mr. Burr
received credit toward his state sentences for the time he spent in custody
between September 15, 2018, and January 11, 2020. Therefore, the BOP did
not credit any of that time toward his federal sentence. The BOP did, however,
give him credit toward his federal sentence for time spent in state custody in
2

2014 and for the period from January 12, 2020, through September 13, 2020. 1
See dkt. 11 at 5 (summarizing credits).
Mr. Burr filed motions asking the federal Court to correct his judgment
to reflect that his federal sentence should have been 180 months because the
Court did not apply credit toward his federal sentence for any of the time
served between September 15, 2018, and September 14, 2020. Cr. Dkts. 138,
140. Mr. Burr argued that "this time served was to be applied at sentencing
and cannot be applied during sentence computation at the Federal Bureau of
Prisons." See Cr. Dkt. 140 at 1. The federal Court denied the motions,
explaining that only the BOP could calculate his sentence and that, to
challenge that computation, he was required to file a habeas petition in his
district of confinement after exhausting administrative remedies. Cr. Dkt. 141.
Six days after the sentencing court denied those motions, this Court
received Mr. Burr's habeas petition. About a month later, Mr. Burr moved for
reconsideration of the sentencing court's order denying his motions to correct
his judgment. Cr. Dkt. 142. He argued that he was not challenging the BOP's
calculation of his sentence under 18 U.S.C. § 3585. Id. Instead, he argued
that the sentencing court intended to reduce Mr. Burr's sentence by 24 months
under U.S.S.G. § 5G1.3, and the BOP unlawfully failed to implement that
sentence. Id.
The federal Court denied the motion, stating:

The first 30 days of the January 12-through-September 13 time were not credited
until after Mr. Burr filed his habeas petition. Dkt. 11 at 5.
1

3

The presiding judge, the late Honorable Laurie Smith Camp
recommended in the Judgment in a Criminal case that Burr receive
credit for time served since September 15, 2018, at which time he
was incarcerated due to a state-related offense in Morgan County,
Colorado. But Burr did not come into federal custody until February
20, 2020.
Burr posits that Judge Smith Camp "intended" to apply a downward
departure under the United States Sentencing Guidelines § 5G1.3.
There is nothing in the record indicating that Judge Smith Camp
intended to apply this departure. Indeed, there is nothing in the
judgment or the Statement of Reasons supporting Burr's claim.
Cr. Dkt. 143 (internal citations omitted).
II.
Legal Standard
"[C]hallenges to the computation of a sentence must be brought under 28
U.S.C. § 2241." Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (per
curiam). The Attorney General, acting through the BOP, is responsible for
administering and calculating the sentences of federal prisoners, including
calculating credits for time served under 18 U.S.C. § 3585. See United States
v. Wilson, 503 U.S. 329, 334–35 (1992); 18 U.S.C. § 3621(a). Under that
section, a federal prisoner is entitled, under certain circumstances, to receive
credit toward his sentence for time spent in detention between his arrest for
the offense and the commencement of the sentence. 18 U.S.C. § 3585(b). A
court may not, however, credit toward a federal sentence time served in jail
that has been "credited against another sentence." Id.
III.
Analysis
Mr. Burr argues that he should receive 24 months' credit toward his
federal sentence, effectively reducing his sentence of incarceration from 204
4

months to 180 months. The government responds that the BOP cannot credit
his federal sentence for that time because it was already credited to a statecourt sentence. Dkt. 11 (citing 18 U.S.C. § 3585(b)). Mr. Burr concedes that
he already received credit toward his state sentence for the period of time that
he served in jail pending disposition of the federal charges. Dkt. 18 ("Lastly,
the credit Burr seeks was credited against state sentence(s), as the Government
asserts." (internal citation omitted)). Mr. Burr argues, however, that the BOP
must credit toward his federal sentence the 24 months' time served in jail
because the federal Court intended to adjust to his sentence under Sentencing
Guideline § 5G1.3 for the time he had already served in jail.
§ 5G1.3 provides:
(a) If the instant offense was committed while the defendant was
serving a term of imprisonment (including work release, furlough,
or escape status) or after sentencing for, but before commencing
service of, such term of imprisonment, the sentence for the
instant offense shall be imposed to run consecutively to the
undischarged term of imprisonment.
(b) If subsection (a) does not apply, and a term of imprisonment
resulted from another offense that is relevant conduct to the
instant offense of conviction under [the Guidelines], the sentence
for the instant offense shall be imposed as follows:
(1) the court shall adjust the 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.

5

(c) If subsection (a) does not apply, and a state term of imprisonment
is anticipated to result from another offense that is relevant
conduct to the instant offense of conviction under [the
Guidelines], the sentence for the instant offense shall be imposed
to run concurrently to the anticipated term of imprisonment.
U.S.S.G. § 5G1.3 (2018 Sentencing Manual).
The federal Court's sentencing recommendation related to credit for time
served, however, was a non-binding recommendation, not a downward
adjustment under § 5G1.3. At sentencing, neither counsel nor the Court
referred to § 5G1.3. And while Mr. Burr's attorney asked that the court "grant"
Mr. Burr credit for his pretrial incarceration, the context does not suggest that
counsel was referring to a sentence adjustment under § 5G1.3. Cr. Dkt. 154 at
4 (Mr. Burr's attorney setting forth sentencing-related requests, including
placement at a specific facility, substance abuse treatment, and vocational
training). And the government agreed that the Court should "make the
recommendation" that Mr. Burr receive the credit. Id. at 5. In pronouncing
sentence, the Court stated, "I recommend" that Mr. Burr receive credit for time
served from September 15, 2018, along with the other non-binding
recommendations Mr. Burr's attorney had requested. Id. at 6. Finally, the
language used in the judgment is consistent with the Court's oral
pronouncement of the sentence, including that the Court "recommended" that
Mr. Burr receive credit for time served. Cr. Dkt. 134. In short, the record does
not show that the Court intended to adjust Mr. Burr's sentence downward
under § 5G1.3 to a term of 180 months' incarceration.

6

Mr. Burr's reliance on Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002) is
misplaced. There, the Third Circuit granted a habeas petition, concluding that
the BOP had failed to implement the sentence imposed by the sentencing
court. At sentencing, the petitioner's attorney asked the court to order the
federal sentence to run concurrent with the state sentence, explicitly
referencing the court's authority under U.S.S.G. § 5G. Id. at 131. The
sentencing judge stated that it made sense to "recommend" that the sentences
run concurrently and that the petitioner receive credit for the time served on
the state sentence. Id. The judgment stated, "The defendant is hereby
committed to the custody of the United States Bureau of Prisons to be
imprisoned for a term of 112 months. Sentence imposed to run concurrent
with State sentence. Defendant to receive credit for time served." Id. The
Third Circuit concluded that the district court's statements at sentencing and
the judgment demonstrated the court's intent to adjust the sentence downward
under § 5G. Id. at 135.
Here, in contrast, neither the court nor counsel referenced § 5G1.3, and
the judgment referred to the credit calculation only as a "recommendation."
The record therefore does not indicate that the court intended to adjust Mr.
Burr's sentence downward under § 5G1.3, but instead was making a nonbinding recommendation. Moreover, Mr. Burr's request to apply the credit for
time-served is at odds with 18 U.S.C. § 3585 because that time-served was
already credited to his state-court sentence. See United States v. Ross, 219
F.3d 592, 594 (7th Cir. 2000) ("§ 3585(b) forbids the BOP from giving credit for
7

presentence custody when that credit has been applied against another
sentence"); Elwell v. Fisher, 716 F.3d 477, 485 (8th Cir. 2013) (noting that
§ 3585(b) includes an express prohibition on double crediting). 2
Mr. Burr has not shown that the BOP has erred in calculating his
sentence. Therefore, his habeas petition must be denied.
IV.
Conclusion
For the reasons stated above, Mr. Burr's petition for writ of habeas
corpus under 28 U.S.C. § 2241 is denied with prejudice. His motions for
Court assistance, and status update, dkts. [24] and [25], are granted to the
extent that the Court has now ruled on his habeas petition.
Final judgment shall issue by separate entry.
SO ORDERED.
Date: 9/24/2024

The other cases Mr. Burr cites, see dkts. 18, 20, 22, similarly do not support
applying the time-served credit to his federal sentence. See, e.g., Rios v. Wiley, 201
F.3d 257, 261 (3d Cir. 2000) (discussing application of § 5G1.3 where the sentencing
court referred to it and the judgment sentenced petitioner "to a term of 90 months on
both counts to run concurrently with each other and concurrently with the state
sentence and that you receive credit for time served").
2

8

Distribution:
CHARLES BURR
31242-047
PEKIN - FCI
PEKIN FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 5000
PEKIN, IL 61555
All electronically registered counsel

9