MATHIES v. FEDERAL BUREAU OF PRISONS
Filing
6
OPINION. Signed by Judge Renee Marie Bumb on 12/11/2014. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
LAWRENCE MATHIES,
:
: Civil Action No. 12-6838 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
FEDERAL BUREAU OF PRISONS,
:
:
Respondent.
:
_______________________________________
:
BUMB, District Judge:
This matter comes before the Court upon Petitioner’s
submission of his filing fee, which triggered restoration of this
matter to the Court’s active docket.
See Docket Entry No. 5.
Petitioner is a federal prisoner currently confined at the
F.C.I. Fort Dix, Fort Dix, New Jersey.
Known as “Poochie,”
Petitioner was a member “of a racketeering enterprise known as
the ‘Bryant Boys’ [that operated at a housing complex located] at
850 and 860 Bryant Avenue, Bronx, New York.”
Carrillo, 229 F.3d 177, 179 (2d Cir. 2000).
United States v.
The Bryant Boys were
charged with violations of the Racketeer Influenced and Corrupt
Organizations and Violent Crimes in Aid of Racketeering Act
involving the Bryant Boys’ “conspiracy to murder Rudolph Wyatt
and attempted murder of Rudolph Wyatt, conspiracy to murder
Kelvin Lyons and attempted murder of Kelvin Lyons, conspiracy to
murder Joseph Hendrickson and murder of Rufus Brown . . . ,
conspiracy to murder Robert Antonetti and murder of Robert
Antonetti, and conspiracy to murder Axel Antonetti and murder of
Axel Antonetti.”
Id. at 178, 182.
Petitioner pled guilty to reduced charges of conspiracy to
assault and assault with a dangerous weapon in exchange for
having his original charges (that is, conspiracy to murder,
murders, kidnapping, racketeering and firearm offenses)
dismissed.
See United States v. Mathies, Crim. Action No. 95-
0942 (DAB) (S.D.N.Y.), Docket Entry No. 136.
His initial
judgment of conviction, entered on August 24, 1998, read as
follows:
[Petitioner is] committed to the custody of the United
States Bureau of Prisons to be imprisoned for a term of
[t]hirty six months under [C]ount {O]ne and [t]wo
[h]undred [f]orty [m]onths under [C]ount [T]wo. The
terms of imprisonment imposed under [C]ounts [O]ne and
[T]wo are to run consecutive to each other totaling two
hundred seventy six months imprisonment.
Id.
On April 7, 1999, Petitioner’s judgment of conviction was
amended to add, at the end of the above-quoted paragraph, the
following sentence:
The imposed [s]entence is to run concurrent to the
State Court Sentence pursuant to USSG Sec. 5G1.3.
Id., Docket Entry No. 189; accord Instant Matter, Docket Entry
No. 1-1, at 2 (same).
2
In other words, Petitioner’s federal court utilized its §
5G1.3 power to allow a downward departure of Petitioner’s federal
sentence in light of his then-running state sentence.
Describing the events relevant to that state sentence,
Petitioner indicated that:
on April 18, 1995, [that is, four years prior to the
entry of his amended federal judgment, Petitioner] was
arrested on drug charges and [upon being convicted of
these state controlled substance offenses,] sentence[d]
to [a term of imprisonment up] to six years [which he
served in] a state prison.
Instant Matter, Docket Entry No. 1, at 8.
When Petitioner was paroled from his state prison term and
entered federal custody, he challenged his federal sentence
computation and was advised by the BOP officials as follows:
A review of [Petitioner’s record] reveal[ed that,]
while [Petitioner was] in primary state custody
[serving his sentence imposed on the basis of his drug]
charges [that were prosecuted by] the [S]tate of New
York, [Petitioner was] indicted by the federal
government on [the above-described, murder, kidnapping
and racketeering] charges. [Initially, Petitioner was]
sentenced on July 22, 1998, in the United States
District Court, Southern New York, to a term of 276
months to run consecutive to [his] state sentence.
[Upon the entry of that sentence, Petitioner – who was
then held in secondary federal custody under a writ of
habeas corpus ad prosequendum – was] returned to state
custody to complete [his] remaining state sentence
[that was based on his controlled substance offenses.
When Petitioner was] paroled from [his] state sentence
on February 11, 1999, [he entered into now-primary
federal custody to serve his] federal sentence. On
April 07, 1999, an amended [j]udgment [of conviction
was entered] by the federal sentencing court ordering
[Petitioner’s] federal sentence to run concurrent to
the [now-expired] state sentence. [His federal]
sentence computation was [correspondingly] updated to
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reflect [the fact of his] federal sentence
commenc[ement] on July 22, 1998, [that is, on] the date
it was imposed, instead of the date [when he was]
received into federal custody. [Petitioner was] also .
. . awarded jail credit from April 18, 1995, the date
[when he was] arrested on [his] state sentence to May
18, 1995, the date prior to [that when his] state
sentence [was] imposed [since that brief pre-statesentencing period was not credited against Petitioner’s
state sentence].
Instant Matter, Docket Entry No. 1, at 22.
Petitioner, however, asserted that he “should [have also]
receive[d] jail credit from November 1995 to November 1998,”
because he believed that his federal sentencing court directed
such “jail credit.”
Id.
Having his request denied in part by
all three levels of the BOP, Petitioner commenced the matter at
bar essentially maintaining the same.1
See generally, Docket
Entry No. 1.
The record produced by Petitioner indicates that he and the
BOP became substantially confused by each-other’s submissions.
See, generally, Docket Entry No. 1, at 16-30, and Docket Entry
No. 1-1.
However, the record at bar indicates that Petitioner is
not entitled to the “jail credit” he seeks.
1
It is self-evident that Petitioner’s request to have the
period from July 22, 1998, to November 1998 “credited” against
his federal sentence was granted by the BOP since the BOP
recalculated his federal term as if it started on July 22, 1998.
Hence, the period still remaining in dispute is that from
November 1995 to July 21, 1998, i.e., the time from when
Petitioner’s state term was triggered and until the date when his
federal sentence was imposed.
4
“The authority to calculate a federal prisoner’s release
date for the sentence imposed, and to provide credit for
pre-sentence detention and good conduct, is delegated to the
Attorney General, who acts through the [BOP].”
Armstrong v.
Grondolsky, 341 F. App’x 828, 830 (3d Cir. 2009) (citing United
States v. Wilson, 503 U.S. 329, 334-35 (1992)).
“In calculating
the sentence, the BOP determines[:] (1) when the federal sentence
commenced, and (2) whether there are any credits to which the
prisoner may be entitled.”
Nieves v. Scism, 2013 U.S. App. LEXIS
10989, at *3 (3d Cir. 2013) (citing 18 U.S.C. § 3585).
A
sentence begins the date when a 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.”
18 U.S.C. § 3585(a); see also
Howard v. Longley, 2013 U.S. App. LEXIS 17905, at *4 (3d Cir.
Aug. 27, 2013) (“a sentence cannot start earlier than the day it
was imposed . . . ‘even if made concurrent with a sentence
already being served’”) (quoting United States v. Flores, 616
F.2d 840, 841 (5th Cir. 1980)).
A federal sentence cannot begin
to run when a defendant is placed in federal custody under an ad
prosequendum writ, see generally, Ruggiano v. Reish, 307 F.3d 121
(3d Cir. 2002), since primary jurisdiction remains vested in the
state because it is the sovereign that arrested the defendant
first.
Primary jurisdiction remains with the state until it
5
relinquishes its priority, which the state can do only by one of
four ways: (a) bail release; (b) dismissal of all charges; (c)
parole release; or (d) expiration of sentence.
See Rios v.
Wiley, 201 F.3d 257, 274 (3d Cir. 2000), superseded on other
grounds, as stated in, United States v. Saintville, 218 F.3d.
246, 248-49 (3d Cir. 2000); Davis v. Sniezek, 403 F. App’x 738,
740 (3d Cir. 2010) (same, relying on United States v. Cole, 416
F.3d 894, 897 (8th Cir. 2005)); see also Chambers v. Holland, 920
F. Supp. 618, 622 (M.D. Pa. 1996) (“Primary jurisdiction over a
state prisoner ends and federal custody over him commences only
when the state authorities relinquish him on satisfaction or
extinguishment of [his] state obligation[s]”), aff’d, 100 F.3d
946 (3d Cir. 1996); accord Carmona v. Williamson, 2006 U.S. Dist.
LEXIS 77201 (M.D. Pa. Oct. 23, 2006) (since the state holds
primary jurisdiction over the defendant, the federal officials
assume only secondary jurisdiction over him while he is serving
his state sentence).
Once the state’s primary jurisdiction is relinquished,
federal jurisdiction transforms from secondary to primary.
Chambers, 920 F. Supp. at 622.
See
At that point, the BOP calculates
an inmate’s projected release date by factoring in the specifics
of his federal sentence and all appropriate credits.
Armstrong, 341 F. App’x at 830.
See
The key point of this
calculation is the well-settled principle that a federal prisoner
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cannot receive a so-called “double credit,” that is, a credit for
the time already credited against his state sentence.
See
Wilson, 503 U.S. at 337 (in enacting § 3585(b), “Congress made
clear that a defendant could not receive a double credit for his
detention time”).
That said, a federal prisoner is entitled to a
so-called “prior custody credit” for the time he spent in
detention before his federal sentence began, that is, if that
period has not already been credited against his state sentence.
See 18 U.S.C. § 3585(b) (“prior custody credit” is proper if the
detention resulted either from the offense for which the sentence
was imposed or from “any other charge for which the defendant was
arrested after the commission of the offense for which the
sentence was imposed [provided that such period] has not been
credited against any other sentence”); compare Rios, 201 F.3d at
273 n.14 (even under § 3568, that is, the § 3585 predecessor
which — unlike § 3568 — did not expressly preclude double credit,
credit was still unavailable for the time credited against the
defendant’s state sentence, regardless of whether or not that
detention came about because the defendant was denied bail in
state forum on the basis of a federal detainer).
In addition, the BOP may take an administrative action
creating a credit-like effect, even though that action is not a
“credit” at all.
See, e.g., Barden v. Keohane, 921 F.2d 476, 483
(3d Cir. 1990); see also Galloway v. Warden of F.C.I., 2009 U.S.
7
Dist. LEXIS 9293, at *10-11 (D.N.J. Feb. 9, 2009) (detailing the
Barden analysis), aff’d, 385 F. App'x 59 (3d Cir. 2010).
Moreover, a prisoner’s federal term can be reduced not as a
result of a credit or a credit-like action by the BOP but,
rather, as a result of a downward departure granted by the
prisoner’s federal sentencing court.
With regard to that
judicial decision, the BOP has no authority but to execute it
faithfully.
Accord Setser v. United States, 132 S. Ct. 1463,
1470 (2012) (“3621(b) . . . does not confer [upon the BOP]
authority to choose between concurrent and consecutive
sentences”).
Hence, if the federal court directs a prisoner’s
federal term to run in prospective concurrence with his
undischarged (either already running or yet-to-be imposed) state
sentence, or if the federal court orders retroactive concurrence
to an already-running state term, the BOP can neither
second-guess nor alter that judgment by granting the prisoner
less downward departure or more downward departure.
See 18
U.S.C. § 3584(a); accord Setser, 132 S. Ct. at 1463; Ruggiano,
307 F.3d at 121.
This is so because the BOP cannot usurp
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judicial powers of the prisoner’s federal sentencing court.2
See
Setser v. United States, 132 S. Ct. at 1463.
The Court of Appeals’ decision in Ruggiano is particularly
instructive for the purposes of Petitioner’s challenges at hand.
The Ruggiano Court stated:
The text of [S]ection 5G1.3 of the Guidelines consists
of three subsections . . . :
(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 the
undischarged term of imprisonment resulted
from offense(s) that have been fully taken
into account in the determination of the
offense level for the instant offense, the
sentence for the instant offense shall be
imposed to run concurrently to the
undischarged term of imprisonment.
(c)
(Policy Statement) In any other case, the
sentence for the instant offense may be
imposed to run concurrently, partially
concurrently, or consecutively to the prior
2
If the sentencing federal court did not address the issue
of concurrence expressly, the BOP is obligated to presume an
implied consecutiveness, rather than concurrence, of the federal
term. See 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment
imposed at different times run consecutively unless the court
orders that the terms are to run concurrently”). In other words,
the BOP is obligated not to presume any form of concurrence
unless that concurrence is expressly directed by the sentencing
court.
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undischarged term of imprisonment to achieve
a reasonable punishment for the instant
offense.
Subsection (a) of § 5G1.3 applies when the new offense
was committed while the defendant was serving a term of
imprisonment, and mandates that any new period of
imprisonment be consecutive to the previous one.
Subsection (b) applies when the instant offense and the
offense for which the undischarged term were imposed
relate to the same crime, and requires that the new
sentence run “concurrently to the undischarged term of
imprisonment.” Although it is not obvious from the
text of subsection (b) that “concurrently” refers to
time already served on the preexisting sentence,
Application Note 2 in the Commentary to § 5G1.3(b)
provides that the defendant should be credited for that
time. It states, “When a sentence is imposed pursuant
to subsection (b), the court should adjust the sentence
for any period of imprisonment already served as a
result of the conduct taken into account in determining
the guideline range for the instant offense.” U.S.S.G.
§ 5G1.3 cmt. n.2. Note 2, therefore, makes clear that
“concurrently” in subsection (b) means fully or
retroactively concurrently, not simply concurrently
with the remainder of the defendant’s undischarged
sentence.
Ruggiano, 307 F.3d at 127-28 (ellipsis omitted, emphasis
supplied).
Here – while seeking a “jail credit” – Petitioner speculates
that his amended federal judgment of conviction must have
required retroactive concurrence with the state sentence simply
because his federal sentencing court stated, “[t]he imposed
[s]entence is to run concurrent to the State Court Sentence
pursuant to USSG Sec. 5G1.3.”
Docket Entry No. 1-1, at 2.
support, Petitioner produced a portion of his sentencing
10
In
transcript: “I am making sentence concurrent to the state court
sentence pursuant to 5G1.3.”
Docket Entry No. 1, at 20.
However, not a single word in the amended judgment of
conviction (or in the sentencing transcript, or even in the
entire docket of United States v. Mathies, Crim. Action No. 950942 (DAB) (S.D.N.Y.)) suggests, even vaguely, that Petitioner’s
federal sentencing court directed retroactive – rather than
prospective – concurrence.
Indeed, there is no word “retroactive” in the amended
judgment.
Analogously, there is no word “retroactively” in the
sentencing transcript.
And there is not a single reference in
the entire record to subsection (b) of § 5G1.3 – or even to Note
2 of the comments to U.S.S.G. § 5G1.3.
Moreover, there is no
indication that such reference was ever intended.
Furthermore, and paramount here, it appears that there could
not have been any such reference because, as the Ruggiano Court
explained, resort to subsection (b) could be warranted if, and
only if, both Petitioner’s federal offense and his state offense
for which the undischarged term was still running at the time of
his federal “relate[d] to the same crime.”
Ruggiano, 307 F.3d at
128 (emphasis supplied).
Here, Petitioner’s underlying federal charges were murder,
racketeering, kidnapping and firearm offenses, and his federal
conviction was imposed on the basis of his guilty plea to the
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crimes of conspiracy to commit an assault and assault with a
dangerous weapon.
In contrast, his state conviction was not
imposed on the basis of any assault, murder, kidnapping or
racketeering: it was imposed on the basis of Petitioner’s
controlled substance offenses.
Hence, it appears that the crimes
underlying Petitioner’s federal and state convictions were wholly
distinct and different offenses, and not the same crime.
Therefore, his federal sentencing court would have had no valid
basis for resorting to subsection (b) and for imposing a
retroactively concurrent sentence.
In other words, while Petitioner’s federal court could and
did, indeed, utilize its power under § 5G1.3, it relied on the
mandate supplied by § 5G1.3(c), that is, the provision allowing
courts to impose a term running in prospective concurrence with
what was remaining of Petitioner’s undischarged state term as of
the date of his federal sentencing.
Correspondingly, while the BOP’s response to Petitioner’s
inquiry was stated in a bit convoluted terms, the outcome of the
recalculation of Petitioner’s federal term by the BOP was
entirely correct.
Indeed: (a) the BOP had no mandate to second-
guess the decision of Petitioner’s federal sentencing court; and,
dispositive here, (b) there was not a single word in Petitioner’s
amended judgment of conviction that could empower the BOP to
calculate Petitioner’s federal term as running in retroactive
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concurrence with his state term.
See supra, this Opinion, note 2
(the BOP is obligated not to presume concurrence with regard to
any sentence or even a portion of the sentence unless the federal
sentencing court expressly directs such concurrence).
In light of the foregoing, Petitioner’s challenges appear
wholly meritless, even though his confusion about the issues at
hand is indeed understandable.3
For these reasons, his Petition,
Docket Entry No. 1, will be dismissed.
However, solely out of an
abundance of caution, this Court will retain its jurisdiction
over the instant matter for the period of ninety days so to allow
Petitioner an opportunity to file a written statement detailing
his facts, if any, which led him to believe that his federal
sentencing court amended Petitioner’s judgment of conviction by
directing retroactive concurrence in accordance with § 5G1.3(b)
rather than directing prospective concurrence in accordance with
§ 5G1.3(c), as it appears from the record at bar.4
An appropriate Order follows.
3
Petitioner’s references to the period of his secondary
federal custody, when he was in front of his federal sentencing
court under under the writ of habeas corpus ad prosequendum, is
of no relevance to the analysis at hand, since the period of that
custody was duly credited against Petitioner’s state sentence.
4
This Court stresses that Petitioner’s self-serving
preferences, hypothesis and legal speculations do not qualify as
facts showing that his federal sentencing court directed
retroactive concurrence under § 5G1.3(b). Only the actual
statements, oral or written, made by Petitioner’s federal
sentencing court could qualify as relevant facts.
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S/sRenee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: December 11, 2014
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