SECREST v. BUREAU OF PRISONS et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 9/29/2016. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH R. SECREST,
Petitioner,
v.
BUREAU OF PRISONS, et al.,
Respondents.
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Hon. Noel L. Hillman
Civil No. 13-5011 (NLH)
OPINION
APPEARANCES:
JOSEPH R. SECREST, #05856-027
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se
DAVID VINCENT BOBER, ASSISTANT U.S. ATTORNEY
PAUL J. FISHMAN, UNITED STATES ATTORNEY
402 E. State Street, Room 430
Trenton, NJ 08608
Attorneys for Respondents
HILLMAN, District Judge:
Joseph R. Secrest, an inmate confined at FCI Fort Dix in New
Jersey, filed a Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241 challenging the calculation of his release date by
the Bureau of Prisons (“BOP”).
Secrest contends that the BOP
violated the terms of the sentence imposed by U.S. District Judge
Robert L. Miller, Jr., on December 8, 1999, in United States v.
1
Secrest, Crim. No. 98-0036 (RM) judgment (N.D. Ind. Dec. 8,
1999), aff’d, 248 F.3d 1161 (7th Cir. 2000), by failing to run
Secrest’s 293-month term fully concurrently with a 96-month
sentence imposed by the State of Indiana on September 15, 1998,
in Indiana v. Secrest, Case No. 43D01-9709-CF-100 judgment (Ind.
Super. Ct. Sept. 15, 1998).
See Ruggiano v. Reish, 307 F.3d 121
(3d Cir. 2002), superseded on other grounds by, U.S.S.G. §
5G1.3(c) app. note 3(E) (2003); 18 U.S.C. § 3584; U.S.S.G. §
5G1.3(b), (c).
Secrest argues that Judge Miller ordered his
federal sentence to run fully concurrently with his Indiana
sentence pursuant to Sentencing Guideline 5G1.3(b) and (c) but
the BOP failed to comply with Judge Miller’s sentence by refusing
to give him credit for all the time he served on his Indiana
sentence prior to imposition of the federal sentence.
The
government filed an Answer, together with two declarations and
several exhibits, arguing that there is no evidence that Judge
Miller intended the federal sentence to run “retroactively
concurrently” with the Indiana sentence, that the BOP gave him
all the prior custody credit to which he is legally entitled, and
that the BOP properly refused pursuant to 18 U.S.C. § 3585(b) to
give Secrest double credit for the disputed period.
Because the federal judgment of conviction orders the 293month term of imprisonment to “run concurrently with [Secrest’s]
2
current state sentences,” (ECF No. 6-2 at 21), and the transcript
of sentencing, as well as Judge Miller’s sentencing memorandum,
unequivocally express Judge Miller’s intent to run the federal
sentence fully concurrently with the previously imposed
undischarged Indiana sentence, pursuant to U.S.S.G. § 5G1.3(b)
and (c), the Court will grant a Writ of Habeas Corpus.
The BOP
will be directed to credit Secrest with all the time he served in
state custody prior to imposition of the federal sentence on
December 8, 1999 (credit from September 10, 1997, the date of the
state arrest, through December 7, 1999, the day before imposition
of the federal sentence).
I.
BACKGROUND
Secrest challenges the calculation of his release date by
the BOP.1
Secrest claims that the BOP violated that portion of
the federal sentence imposed on December 8, 1999 which ordered
the 293-month federal term to run fully concurrently with the
Indiana term, i.e., that the BOP improperly refused to give him
credit for all time he served in the custody of Indiana since his
arrest on September 10, 1998, through December 7, 1999, the day
prior to imposition of the federal sentence.
Secrest’s projected release date, with good conduct time, is
presently March 10, 2020. (ECF No. 6-1 at 7.)
1
3
As part of a criminal investigation surrounding Secrest, in
March 1997 sheriffs from Kosciusko County, Indiana found
photographs and negatives containing suspected child pornography
during a search of Secrest’s trailer.
In August 1997, a national
film processing company contacted the U.S. Postal Service,
indicating that the company had received in the U.S. Mail
negative strips containing images suspected to be child
pornography and an order form for reprints listing Secrest’s name
and address.
Cir. 2000).
See United States v. Secrest, 249 F.3d 1161 (7th
The Kosciusko County Sheriff’s Department arrested
Secrest on August 6, 1997, for incest and he was released the
same day on bond.
On September 10, 1997, the Sheriff’s
Department arrested Secrest for sexual misconduct with a minor
and child exploitation, and he has been incarcerated since that
date.
On July 9, 1998, a grand jury sitting in the U.S. District
Court for the Northern District of Indiana returned a federal
indictment, and a superseding indictment on December 9, 1998,
charging Secrest with possession of child pornography, sexual
exploitation of children, transporting child pornography in
interstate commence, possession of material involving the sexual
exploitation of minors, and obstructing justice by intimidating a
witness.
4
Based on a guilty plea, on September 15, 1998, Indiana
Superior Court Judge Duane G. Huffer imposed an aggregate eightyear term of imprisonment for sexual misconduct with a minor (two
counts) and child exploitation.
On September 23, 1998, Indiana
Superior Court Judge Rex L. Reed imposed an eight-year term of
imprisonment, to run concurrently with the September 15, 1998,
sentence, based on Secrest’s guilty plea to incest.
On February 2, 1999, U.S. District Judge Robert L. Miller,
Jr., issued a writ of habeas corpus ad prosequendum and the U.S.
Marshal Service took temporary custody of Secrest for his initial
appearance on March 11, 1999, on the federal charges.
On June 3,
1999, a jury found Secrest guilty of transporting child
pornography in interstate commerce, sexual exploitation of
children, possession of material containing three or more images
of child pornography that have been transported in interstate
commerce, possession of material involving the sexual
exploitation of minors, and obstructing justice by intimidating a
witness.
Sentencing took place on December 8, 1999.
Judge Miller
imposed a 293-month term of imprisonment (the highest term that
could be imposed under the U.S. Sentencing Guidelines range of
235 to 293 months) “on each of counts one, two and three, and for
a term of 120 months on each of counts six through 17, with the
5
terms to be served concurrently, and also to run concurrently
with the defendant’s current state sentences.”
transcript, ECF No. 9-1 at 46).
(Sentencing
Secrest appealed, arguing that
the court erroneously allowed the government to introduce
photographs, negatives, and a videotape, into the record, and
failed to prove that the persons depicted in the challenged
evidence were minors under the age of 18.
The Seventh Circuit
Court of Appeals affirmed on November 21, 2000.
See United
States v. Secrest, 248 F.3d 1161 (7th Cir. 2000).2
On October 19, 2001, Indiana released Secrest on his state
sentence and the BOP took custody.
The BOP calculated Secrest’s
federal sentence under 18 U.S.C. § 3585(a) as commencing on
December 8, 1999, the date of imposition.
The BOP gave Secrest
prior custody credit under Willis v. United States, 438 F.2d 923
(5th Cir. 1971), for August 6, 1997, and from the date of his
Secrest thereafter filed three motions to vacate the sentence
pursuant to 28 U.S.C. § 2255. On December 14, 2004, Judge Miller
dismissed without prejudice the first motion to vacate, in which
Secrest argued that his sentence was unconstitutional under
Blakely v. Washington, 542 U.S. 296 (2004). See Secrest v. United
States, Civ. no. 04-0695 (RM) order (N.D. Ind. Dec. 14, 2004).
On September 13, 2005, Judge Miller dismissed the second motion
to vacate because Booker/Blakely was not retroactive and the
other grounds were prohibited successive § 2255 motions. See
Secrest v. United States, Civ. No. 05-0507 order (RM) (N.D. Ind.
Sept. 13, 2005). Judge Miller dismissed the third motion under §
2255 as a prohibited successive motion on May 15, 2006. See
Secrest v. United States, Civ. No. 06-0297 (RM) order (N.D. Ind.
May 15, 2006).
2
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state arrest on September 10, 1997, through the day prior to the
imposition of his state sentence on September 14, 1998, which
time was credited against his Indiana sentence.
4.)
(ECF No. 6-2 at
The BOP did not give Secrest credit for the 450-day period
from September 15, 1998, through December 7, 1999, which was
credited against his Indiana sentence.
The BOP projected
Secrest’s release date, with good conduct time, as March 10,
2020.
On April 10, 2013, Secrest submitted a request for
administrative remedy to the warden asking the BOP to correct his
sentence computation to give him credit for all the time he
served in state custody prior to imposition of the federal
sentence.
He claimed that the sentencing judge ordered the
federal sentence to run concurrently under Note 2 of U.S.
Sentencing Guideline § 5G1.3.
Hollingsworth denied relief.
On April 19, 2013, Warden
(ECF No. 6-1 at 10.)
Secrest
appealed to the Regional Director, arguing that by failing to
give him credit for the time he was in state custody since
September 10, 1997, the BOP was not complying with the federal
sentencing judge’s order, issued pursuant to U.S. Sentencing
Guideline 5G1.3 and application note 2, that the 293-month term
run fully concurrently with his state sentence.
On June 5, 2013,
J.L. Norwood, Regional Director, denied the appeal on the ground
7
that 18 U.S.C. § 3585(b) prohibits the BOP from giving credit for
time credited to a state sentence.
(ECF No. 6-1 at 13.)
Secrest appealed to the BOP’s Central Office, the final
administrative appeal.
Relying on the sentencing transcript, he
argued that the BOP should give him credit as of September 10,
1997, because the federal sentencing judge ordered the sentence
to run fully concurrently with his state sentence pursuant to
U.S.S.G. § 5G1.3 and Application Note 2.
On July 17, 2013,
Harrell Watts, Administrator of National Inmate Appeals, issued a
final administrative decision for the BOP which denied relief on
the following grounds:
(1) “Title 18, USC § 3585(b) precludes
the application of prior custody credit for the time you are
requesting, as this time was spent in service of your Indiana
state sentence”; (2) “the Bureau has no authority to adjust a
term pursuant to USSG § 5G1.3”; (3) the “federal sentence is
already being served concurrently to [his] state term.” (ECF No.
6-1 at 17-18.)
On August 18, 2013, Secrest signed and filed (under the
mailbox rule) the § 2241 Petition presently before the Court.
He
claims that the federal sentencing judge ordered his 293-month
federal term of imprisonment to be served concurrently with his
Indiana sentence because the state convictions and sentences were
included in the calculation of his sentencing guideline range and
8
the BOP “refuses to properly calculate Petitioner’s sentence
according to the court’s Judgment and Commitment Order and stated
intentions.”
(ECF No. 1 at 3.)
Relying on Delestre v. Pugh, 196
F. App’x 75 (3d Cir. 2006), he asserts that the BOP did not
calculate the federal sentence as running fully concurrent with
the state term, as ordered by the sentencing judge, but ran the
federal sentence only “partially concurrently” with the state
term.
Id. at 5.
Secrest “request[s] this [C]ourt to order the
Bureau of Prisons to re-calculate this sentence back to 293
months from the BOP imposed 320 month sentence and begin it on
the first day of Petitioner’s State/Federal aggregate sentence,
September 10, 1997, as intended and ordered by the [sentencing]
Judge.”
Id. at 9.
The government filed an Answer, together with two
declarations and several exhibits, arguing that there is no
evidence that Judge Miller intended the federal sentence to run
“retroactively concurrently” with the Indiana sentence, that the
BOP gave him all the prior custody credit to which he is legally
entitled, and that the BOP properly refused pursuant to 18 U.S.C.
§ 3585(b) to give Secrest double credit for the disputed period.
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II.
A.
DISCUSSION
Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not
extend to a prisoner unless . . . [h]e is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).
A federal court has subject matter
jurisdiction under § 2241(c)(3) if two requirements are
satisfied:
(1) the petitioner is “in custody” and (2) the
custody is “in violation of the Constitution or laws or treaties
of the United States.”
28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
This Court has jurisdiction under §
2241 to consider the instant Petition because Petitioner seeks
not to vacate or modify his sentence, but to implement the
sentence as imposed.
See Rios v. Wiley, 201 F.3d 257, 270-71 (3d
Cir. 2000) (where prisoner asserts that BOP failed to effectuate
sentence, habeas remedy is appropriate), superseded by statute,
as stated in United States v. Saintville, 218 F. 3d 246 (3d Cir.
2000); Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976)
(challenging erroneous computation of release date).3
Moreover,
if the BOP erred in calculating Secrest’s sentence, the addition
See also Burkey v. Marberry, 556 F.3d 142, 145 (3d Cir. 2009);
Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir.
2005).
3
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of 450 days to his federal sentence carries a potential for a
miscarriage of justice that can be corrected through habeas
corpus. See Murray v. Carrier, 477 U.S. 478, 495 (1986).
B.
Standard of Review
Insofar as the BOP finally denied Petitioner’s request
challenging the calculation of his sentence, this Court’s review
is limited to the abuse of discretion standard.
See Galloway v.
Warden of FCI Fort Dix, 385 F. App’x 59, 61 (3d Cir. 2010);
Barden, 921 F.2d at 478.
Under this standard, a reviewing court
must find that the actual choice made by the agency was neither
arbitrary nor capricious.
See C.K. v. N.J. Dep’t of Health &
Human Services, 92 F.3d 171, 182 (3d Cir. 1996).
“[A]gency
action must be set aside if the action was ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law’....” Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 414 (1971), overruled on other grounds,
Califano v. Sanders, 430 U.S. 99 (1977) (quoting 5 U.S.C. §
706(2)(A)).
C.
Relevant Statutes
Where a federal term of imprisonment is imposed on a
defendant who is already subject to an undischarged term, 18
U.S.C. § 3584 provides that the sentencing judge may order the
11
federal term to run concurrently or consecutively with the
undischarged term.
Section 3584 provides:
(a) Imposition of concurrent or consecutive
terms.--If multiple terms of imprisonment are imposed
on a defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively, except
that the terms may not run consecutively for an attempt
and for another offense that was the sole objective of
the attempt. Multiple terms of imprisonment imposed at
the same time run concurrently unless the court orders
or the statute mandates that the terms are to run
consecutively. Multiple terms of imprisonment imposed
at different times run consecutively unless the court
orders that the terms are to run concurrently.
(b) Factors to be considered in imposing
concurrent or consecutive terms.--The court, in
determining whether the terms imposed are to be ordered
to run concurrently or consecutively, shall consider,
as to each offense for which a term of imprisonment is
being imposed, the factors set forth in section
3553(a).
(c) Treatment of multiple sentence as an
aggregate.--Multiple terms of imprisonment ordered to
run consecutively or concurrently shall be treated for
administrative purposes as a single, aggregate term of
imprisonment.
18 U.S.C. § 3584.
Section 3585 of Title 18 specifies when a federal sentence
commences, see 18 U.S.C. § 3585(a), and requires the BOP to award
prior custody credit for time served prior to commencement of the
sentence which has not been credited against another sentence,
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see 18 U.S.C. § 3585(b).
Specifically, § 3585 provides, in
relevant part:
(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(a), (b).
D.
Analysis
Secrest argues that the BOP’s failure to give him credit
for the 450 days (from September 15, 1998, through December 7,
1999) served toward his Indiana sentence prior to imposition of
the federal sentence on December 8, 1999, violates the sentence
imposed by Judge Miller.
The BOP correctly contends that it has no authority under
18 U.S.C. § 3585(b)(2) to give Petitioner credit for the 450-day
period he seeks because it was credited against another
sentence.
Section 3585(b)(2) directs the BOP to give a
defendant credit for prior custody “that has not been credited
13
against another sentence.” 18 U.S.C. § 3585(b)(2).
Because
these 450 days were credited against Secrest’s Indiana sentence,
the BOP was not permitted to give Petitioner credit for this
time under § 3585(b).
See Ruggiano, 307 F.3d at 126; Rios, 201
F.3d at 269.
The BOP also correctly asserts that it cannot award Secrest
credit for this time pursuant to U.S.S.G. § 5G1.3 because the
BOP “has no authority to adjust a term pursuant to USSG §
5G1.3.” (ECF No. 6-1 at 18.)
U.S.
See Setser v. United States,
, 132 S.Ct. 1463, 1470 (2012)(holding that the district
court, not the BOP, had the power to order Setser’s 151-month
term in federal custody to run concurrently with one state
sentence and consecutively with another).
As the Supreme Court
emphasized, Ҥ 3621(b) cannot be read to give the Bureau of
Prisons exclusive authority to make the sort of decision
committed to the district court in § 3584(a).
When § 3584(a)
specifically addresses decisions about concurrent and
consecutive sentences, and makes no mention of the Bureau’s role
in the process, the implication is that no such role exists.”
Id.
However, Secrest is not asking the BOP to decide in the
first instance that his 293-month federal sentence should be run
fully concurrently with his Indiana sentence.
14
Rather, he
contends that Judge Miller already ordered at sentencing that
the 293-month federal term was to run fully concurrently with
the 96-month Indiana term.
He argues that the only way for the
BOP to comply with that order is by giving him credit for all
the time he was in Indiana custody serving the 96-month term,
i.e., the 820-day or 27-month period from his arrest on
September 10, 1997, through the day before Judge Miller’s
imposition of the federal sentence on December 8, 1999.
Secrest
maintains that because the BOP calculated his federal sentence
as running only partially concurrently with the state term,
i.e., the BOP gave him credit only for the 370-day or 12-month
period from September 10, 1997, through September 14, 1998 (the
day prior to imposition of the Indiana sentence), the BOP
violated Judge Miller’s sentencing judgment that the federal
term was to run fully concurrently with the state term.
In its final administrative decision, the BOP maintained
that Secrest’s “federal sentence is already being served
concurrently to [his] state term.”
(ECF No. 6-1 at 18.)
Specifically, according to the BOP, it “effect[ed] concurrent
service of [Secrest’s] state and federal terms as specified in
the federal Judgment [by] commencing the federal sentence on the
date it was imposed, December 8, 1999[.]” Id.
The BOP further
claims that it effected concurrency by giving Secrest “credit
15
for the date of [his] arrest and release by state authorities on
August 6, 1997, and from the date of [his] arrest on September
10, 1997, until the day before [his] state sentence was imposed,
September 14, 1998[.]”
Id.
In its Answer to the Petition, the
BOP maintains that Judge Miller could have ordered the federal
sentence to run “retroactively” concurrently with the Indiana
sentence under § 3584(a) and U.S.S.G. § 5G1.3(b), but the BOP
argues that
there is no evidence that the sentencing judge
intended Secrest’s sentence to be retroactively
concurrent. Rather, as evidenced in the sentencing
judge’s sentencing memorandum, the judge adjusted
Secrest’s federal sentence in accordance with § 5G1.3
by ordering that Secrest’s 293-month federal sentence
would be served concurrently (but not retroactively
concurrently) with his state sentence.
*
*
*
In Secrest’s case, the sentencing judge recognized
that § 5G1.3(b) was applicable because the court
arrived at the 293-month sentence in part by taking
into account Secrest’s state convictions and
sentences; accordingly, he ordered the federal
sentence to run concurrent to the previously imposed
state sentences. Secrest has not set forth any
evidence that the sentencing court intended the
sentence to be not only concurrent but also
retroactively concurrent – i.e., that it be deemed to
commence on the date his state sentence commenced.
(Answer, ECF No. 6 at 17, 18.)
As will be explained more fully below, the BOP
misunderstands what it means to run a federal sentence
16
concurrently with an undischarged term pursuant to U.S.S.G. §
5G1.3(b) and (c).
As a result of this misunderstanding of law,
the BOP failed to comply with Judge Miller’s order that
Secrest’s 293-month term run concurrently with his undischarged
96-month Indiana term.4
The BOP acknowledges in its Answer that,
in accordance with 18 U.S.C. § 3584(a) and U.S.S.G. § 5G1.3(b)
and (c), Judge Miller’s judgment of conviction ordered that the
terms imposed on the federal counts (293-months) are “to be
served concurrently, and also run concurrently with defendant’s
current state sentences.” United States v. Secrest, Crim. No.
98-0036 (RM) judgment (N.D. Ind. Dec. 8, 1999).
However,
without any legal basis the government reads Judge Miller’s use
of the word “concurrently” to mean “partially concurrently.”
“Judges have long been understood to have discretion to
select whether the sentences they impose will run concurrently or
consecutively with respect to other sentences ... that have been
imposed in other proceedings, including state proceedings.”
Setser, 132 S.Ct. at 1468.
As set forth above, 18 U.S.C. §
3584(a) provides that, if “multiple terms of imprisonment . . .
are imposed on a defendant . . . who is already subject to an
The issue of what the sentencing judge intended in his
sentencing order is legal in nature. See Ruggiano, 307 F.3d at
126.
4
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undischarged term of imprisonment, the terms may run concurrently
or consecutively” (except in circumstances not applicable here).
18 U.S.C. § 3584(a).
The statute further provides that
“[m]ultiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run
concurrently.” Id.
At the time of Secrest’s sentencing, U.S.S.G. § 5G1.3,
entitled “Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment,” constrained Judge Miller’s
sentencing discretion under § 3584.5
See Ruggiano, 307 F.3d at
127; United States v. Dorsey, 166 F.3d 558 (3d Cir. 1999); United
States v. Bell, 28 F.3d 615, 618-19 (7th Cir. 1994).
As the
Third Circuit explained, Ҥ 5G1.3 . . . is intended to coordinate
the sentencing process ‘with an eye toward having such
punishments approximate the total penalty that would have been
imposed had the sentences for the different offenses been imposed
at the same time (i.e., had all of the offenses been prosecuted
Congress directed the U.S. Sentencing Commission to promulgate
guidelines for use of a sentencing court in determining “whether
multiple sentences to terms of imprisonment should be ordered to
run concurrently or consecutively.” 28 U.S.C. § 994(a)(1)(D).
The Sentencing Guidelines were mandatory in 1999. See 18 U.S.C. §
3553(b)(1); U.S.S.G. § 1.B1.11(a); United States v. Wilson, 369
F.3d 329, 332 n.2 (3d Cir. 2004); United States v. Iannone, 184
F.3d 214, 219 n.4 (3d Cir. 1999); but see United States v.
Booker, 543 U.S. 220, 259 (2005).
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in a single proceeding).’” Ruggiano, 307 F.3d at 127 (quoting
Witte v. United States, 515 U.S. 389, 404-05 (1995)).
The text of the 1998 version6 of § 5G1.3, which consists of
three sections, 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 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 undischarged term of imprisonment to
achieve a reasonable punishment for the instant
offense.
U.S.S.G. § 5G1.3 (Nov. 1, 1998).
In this case, Judge Miller did not apply Subsection (a) of
§ 5G1.3, as this subsection applies when the federal offense was
committed while the defendant was serving a term of
Judge Miller used the 1998 version of the Sentencing Guidelines.
(Sentencing Memorandum, ECF No. 9-2 at 32.)
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imprisonment, and “mandates that any new period of imprisonment
be consecutive to the previous one.” Ruggiano, 307 F.3d at 128.
Subsection (b) applies where the undischarged term “resulted
from offense(s) that have been fully taken into account in the
determination of the offense level for the instant offense,” and
requires that the new sentence run “concurrently to the
undischarged term of imprisonment.” U.S.S.G. § 5G1.3(b).
“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.”
Ruggiano, 307 F.3d at 128.
Specifically, as of November 1,
1998, Application Note 2 stated:
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 if the court determines that
period of imprisonment will not be credited to the
federal sentence by the Bureau of Prisons.
U.S.S.G. § 5G1.3 app. note 2 (Nov. 1, 1998).7
The Court observes that under application note 4, a judge
imposes a partially concurrent term by stating in the judgment
that the federal sentence “shall commence . . . on a specified
date[.]” U.S.S.G. § 5G1.3 app. note 4.
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In this case, the period of imprisonment at issue would not
have been credited to the federal sentence by the BOP, as the
BOP’s final decision confirms, because this time was also
credited against Secrest’s Indiana sentence and § 3585(b)
prohibits the BOP from giving an inmate double credit.
As Judge
Miller ordered concurrency, citing U.S.S.G § 5G1.3(b) and (c) in
the sentencing memorandum, Application Note 2 clarifies that he
ordered the federal term to be “a truly concurrent one, that is,
a sentence that is not frustrated by the happenstance of when a
defendant is sentenced in state and federal court.” United
States v. Dorsey, 166 F.3d 558, 562 (3d Cir. 1999).
“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 128.8
Subsection (c) of U.S.S.G. § 5G1.3 provides that, if
subsections (a) and (b) do not apply, then “the sentence for the
instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of
Moreover, where subsection (b) applies, it is reversible error
in this Circuit, as well as in the Seventh Circuit (the circuit
wherein Secrest was sentenced), for the sentencing judge not to
order the term for the federal offense to run truly or fully
concurrently to the undischarged state term. See Dorsey, 166 F.3d
at 564; Bell, 28 F.3d at 618-619.
8
21
imprisonment to achieve a reasonable punishment for the instant
offense.” U.S.S.G. § 5G1.3(c).
Subsection (c) specifies three
possible options – concurrently, partially concurrently, or
consecutively.
The BOP argues that Judge Miller did not intend
full concurrency because he did not use the phrase
“retroactively concurrently.”
But subsection (c) does not
include “retroactively concurrently” as an option.
Contrary to
the BOP’s contention, the Third Circuit determined in Ruggiano
that “concurrently” means the same thing in subsection (c) as it
means in subsection (b), that is, truly or fully concurrently
with the undischarged term:
The BOP argue[d] . . . that “concurrently” in the text
of § 5G1.3(c) can only be read to mean concurrently
with the remainder of the pre-existing sentence, and
not concurrently with the full pre-existing sentence
(i.e., retroactively concurrent). We again disagree,
for the text of subsection (b) also uses the term
“concurrently” yet, as the commentary to that
subsection makes clear, the authors of the Guidelines
intended for “concurrently” in § 5G1.3(b) to mean
concurrent with the full pre-existing sentence. See
5G1.3 cmt. 2. It would be most anomalous if
“concurrent” were to mean retroactively concurrent in
subsection (b), but could not mean the same in
subsection (c). See 2A Sutherland Statutory
Construction § 46:06, at 193 (Norman J. Singer ed.,
6th ed. 2000) (“There is a presumption that the same
words used twice in the same act have the same
meaning”)[.]
Ruggiano, 307 F.3d at 130.
22
When Judge Miller’s judgment ordered Secrest’s 293-month
federal sentence to “run concurrently with defendant’s current
state sentences,” (ECF No. 6-2 at 21), Judge Miller intended the
federal sentence to run fully concurrently with Secrest’s preexisting Indiana sentence, not partially concurrently with that
sentence.
The sentencing transcript and Judge Miller’s
sentencing memorandum confirm that by using the word
“concurrently” and relying on U.S.S.G. § 5G1.3(b) and (c), Judge
Miller intended the 293-month federal term to run fully or truly
concurrently with the 96-month Indiana term.
Initially, the Court notes that the Presentence Report
(“PSR”) states in the section entitled “Sentencing Options”
that, “[p]ursuant to U.S.S.G. § 5G1.3(c), the sentence for the
instant offense may be imposed to run concurrently, partially
concurrently, or consecutive to the prior undischarged [eightyear] term of imprisonment to achieve a reasonable punishment
for the instant offense.”
(ECF No. 9-2 at 25.)
The federal sentencing occurred before Judge Miller on
December 8, 1999.
(ECF No. 9-1.)
Secrest’s attorney objected
to the three criminal history points assessed for the state
sexual exploitation and sexual misconduct convictions because
those offenses were based on the same evidence – the videotapes
seized from Secrest’s home – used to convict Secrest of the
23
federal offenses.
Judge Miller’s oral ruling resolved this
issue, as well as other issues such as grouping.
As to
Secrest’s challenge to the assessment of six instead of three
criminal history points, Judge Miller found:
Turning to criminal history category, Mr. Secrest has
2 state criminal convictions that would qualify for
the assessment of criminal history points: A 1998
sentence with 8 years' imprisonment for incest by
virtue of having engaged in sexual intercourse or
deviate acts with Penny on March 19th, 1997. Three
history points are assessed for that conviction
without objection from the defense. Also in 1998, Mr.
Secrest was sentenced to concurrent sentences as long
as 8 years for 2 counts of sexual misconduct with a
minor and one count of child exploitation. The
guidelines ordinarily would assess 3 criminal history
points for those convictions, but Mr. Secrest objects
to the assessment of those points because the
guidelines only allow criminal history points to be
assessed for convictions, quote, "for conduct not part
of" the offense for which he is being sentenced. The
exhibits tendered today indicate that the child
exploitation conviction resulted from a charge that
Mr. Secrest videotaped or photographed Penny from
September, 1994 to September, 1995. The government
contends that this is not the same conduct for
which Mr. Secrest is being sentenced today. And maybe
that' s right. But looking only to the state charging
papers, which is what I understand the law of this
circuit requires me to do, and to the evidence
introduced during this trial, given the ambiguity of
the dates on which the photographs and videotapes were
made, I'm not as certain as the government is. The
counts included conduct that was part of the state
child exploitation charge. But, the state conviction
for which - - for which a sentence was imposed was not
solely for child exploitation. The state sentence at
issue also involved 2 counts of Class C felony,
sexual misconduct with a minor related to deviate
sexual conduct with Christina, Count 1 of the state
charges; and with Heather, Count 3. That conduct is
24
not part of what Mr. Secrest is being sentenced for
today. And I do not believe the Sentencing Guidelines
require me to ignore convictions and sentences for
separate criminal conduct because the prior case also
involved a companion conviction with a concurrent
sentence. I'll count the 1998 Indiana sentences of 8
years for sexual misconduct with a minor and assess 3
points and overrule Mr. Secrest's objections to
paragraphs 140 through 143 of the pre-sentence report.
The 6 criminal history points place Mr. Secrest in
criminal history Category III where a level 36
offender faces a sentencing range of 235 to 293
months’ imprisonment.
(Sentencing Transcript, ECF No. 9-1 at 29-31.)
After finding that the guidelines sentencing range was 235
to 293 months, Judge Miller decided “that a sentence at the high
end of the range, or 293 months, is appropriate.
I think that
that sentence has to be – or should be at least served
concurrently with the state sentences because I did count
criminal history points from those sentences.” (ECF No. 9-1 at
42.)
In addition to the oral pronouncement of the sentence, Judge
Miller also issued a sentencing memorandum.
42.)
(ECF No. 6-2 at 26-
Judge Miller further explained in the sentencing memorandum
why he rejected Secrest’s challenge to the assessment of three
criminal history points for his child exploitation and sexual
misconduct convictions:
A "prior sentence" is "a sentence imposed prior to
sentencing on the instant offense, other than a
sentence for conduct that is part of the instant
25
offense." U.S.S.G. § 4Al.2, Application Note 2. The
state child exploitation conviction resulted from a
charge that Mr. Secrest videotaped or photographed
P.A. from September 1994 to September 1995. The
government contends that is not the same conduct for
which he is being sentenced today, but the court,
looking only to the state charging papers and to the
evidence introduced during this trial, is not as
certain as the government is. The counts of conviction
here may well have included conduct that was part of
the state charge. But the state conviction was not
solely for child exploitation; the state sentence at
issue also involved two counts of class C felony
sexual misconduct with a minor related to deviate
sexual conduct with C.S. (Count 1) and with H.C.
(Count 3). That conduct is not part of what Mr.
Secrest is being sentenced for today. The court does
not believe that the sentencing guidelines require the
court to ignore convictions for separate criminal
conduct because the prior case also involved a
companion conviction. The court will count the 1998
Indiana sentences of eight years for sexual misconduct
with a minor, and assess 3 points.
Six criminal history points place Mr. Secrest in
criminal history category III, where a level 36
offender faces a sentencing range of 235 to 293
months’ imprisonment. U.S.S.G. § 5A.
(ECF No. 6-2 at 35.)
Judge Miller further explained in the sentencing memorandum
that he imposed the highest possible term of imprisonment under
the appropriate guidelines range but, citing U.S.S.G. § 5G1.3(b)
and (c), he ordered this term to run concurrently with Secrest’s
undischarged state term:
Accordingly, the court believes a sentence of 293
months is appropriate. Because Mr. Secrest’s state
convictions and sentences were included in the
calculation of Mr. Secrest’s sentencing range, the
26
court believes this sentence should be served
concurrently with the state sentences. See U.S.S.G. §
5G1.3(b), (c). Mr. Secrest engaged in this conduct
for several years before today, and nothing suggests
that he has decided to change his conduct since he
retains his freedom, so the court believes that a
maximum term of supervised release, or 5 years, is
appropriate . . .
Accordingly, pursuant to the Sentencing Reform Act of
1984, it is the judgment of the court that the
defendant, Joseph R. Secrest, is hereby committed to
the custody of the Bureau of Prisons to be imprisoned
for a term of 293 months on each of Counts 1, 2, and
3, and for a term of 120 months on each of Counts 6
through 17, with the terms to be served concurrently,
and also to run concurrently with the defendant’s
current state sentences.
(ECF No. 6-2 at 39.)
Contrary to the government’s contention, nothing in the
sentencing transcript, sentencing memorandum, or judgment
indicates that Judge Miller intended Secrest’s 293-month term of
imprisonment to be served “partially concurrently” with his 96month Indiana term under U.S.S.G. § 5G1.3(c).
Although U.S.S.G.
§ 5G1.3(b), which requires the federal term to run (fully)
concurrently with the state term, may not have applied per se in
this case because the conduct for which Secrest’s sentence was
imposed was not “fully taken into account in [Judge Miller’s]
determination of the offense level,” this Court reads Judge
Miller’s citation to U.S.S.G. § 5G1.3(b), as well as to §
5G1.3(c), as expressing Judge Miller’s intent to run Secrest’s
27
federal term fully concurrently with the Indiana term.9
In other
words, by citing to subsections (b) and (c), Judge Miller
intended that the entire period of time Secrest had already
served on his state sentence (from September 10, 1997, through
December 7, 1999) should be credited to his 293-month federal
sentence.10
As explained above, when U.S.S.G. § 5G1.3(c) applies, the
sentencing court must choose one of three options, i.e., to run
the federal term “concurrently” with the undischarged term
(which, as explained in application note 2, means fully or truly
The sentencing court is located within the Seventh Circuit and
the Seventh Circuit held in United States v. Bell, 28 F.3d 615,
618 (7th Cir. 1994), that U.S.S.G. § 5G1.3(b), as explained by
application note 2, mandates that the sentencing court must
credit a defendant’s federal sentence for time already served in
state prison.
9
In Ruggiano, the Third Circuit noted that the term “credit” can
be used to refer to credit awarded by the court under § 3584:
10
The type of "credit" awarded by the sentencing court
to Ruggiano, however, was completely different from
the type of "credit" discussed in § 3585(b). While the
latter is within the exclusive authority of the BOP to
award, credit for time served on a pre-existing state
sentence is within the exclusive power of the
sentencing court. Indeed, as quoted above, § 3585(b)
specifically prohibits the BOP from awarding credit
for time that has been "credited against another
sentence."
Ruggiano, 307 F.3d at 132 (quoting Dorsey, 166 F.3d at 564).
28
concurrently), to run the federal term “partially concurrently”
with the undischarged term, or to run the federal term
“consecutively” with the undischarged term.
Napolitan,
F.3d
See United States v.
, 2016 WL 3902164 (3d Cir. July 19, 2016)
(noting that U.S.S.G. 5G1.3 “by its terms affords sentencing
courts broad discretion to run multiple sentences for unrelated
crimes consecutively, concurrently, or partially concurrently”).
This Court has no doubt that, by using the word “concurrently”
and citing to U.S.S.G. § 5G1.3(b) and (c), Judge Miller intended
to run the 293-month term fully concurrently with the
undischarged 96-month Indiana term, not partially concurrently
with that term.11
See Ruggiano, 307 F.3d 121 (vacating order
denying writ because the BOP failed to run the federal sentence
(fully) concurrently with the state term, as ordered by the
federal sentencing judge); Delestre v. Pugh, 196 F. App’x 75 (3d
Cir. 2006)(same).
The Court will grant a Writ of Habeas Corpus
and order the BOP to recalculate Secrest’s projected release date
The BOP’s comment in its final decision that “the sentencing
Court knew that not all of the time spent in state custody would
be credited by the Bureau, and adjusted your term accordingly” is
not fully accurate. (ECF No. 6-1 at 18.) Judge Miller would
have been aware that the BOP lacked the power to award prior
custody credit under 18 U.S.C. § 3585(b), but the BOP incorrectly
concluded that Judge Miller adjusted Secrest’s term: the 293month term Judge Miller imposed was the maximum term under the
applicable guidelines range.
11
29
by giving him credit against his 293-month term for the entire
period from his arrest on September 10, 1997, through December 7,
1999, the day prior to the imposition of the federal sentence.
III.
CONCLUSION
For the reasons set forth above, the Court will grant a Writ
of Habeas Corpus and order Respondents to recalculate
Petitioner’s release date by giving him credit against his 293month term for the entire period from his arrest on September 10,
1997, through December 7, 1999, the day prior to the imposition
of the federal sentence.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
September 29, 2016
At Camden, New Jersey
30
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