SERRANO-GONZALEZ v. SHARTLE

Filing 15

OPINION. Signed by Judge Robert B. Kugler on 4/7/2016. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JUAN SERRANO-GONZALEZ,
:
:
Petitioner,
:
Civ. No. 14-2193 (RBK)
:
v.
:
:
J.T. SHARTLE,
:
OPINION
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner claims that he is entitled to additional jail time credits
that the Federal Bureau of Prisons (“BOP”) is not recognizing on his federal sentence. For the
following reasons, the habeas petition will be denied.
II.

BACKGROUND

Petitioner was arrested in 2003 and 2004 by local law enforcement in the Commonwealth
of Puerto Rico on controlled substance offenses. On December 28, 2004, he received a nine year
sentence for these crimes. Subsequently, in May, 2005, petitioner was indicted by a federal grand
jury in Puerto Rico on federal drug charges. Petitioner was then borrowed by federal authorities
under a writ of habeas corpus ad prosequendum on May 6, 2005 to answer to these federal
charges. On March 6, 2006, petitioner pled guilty to one count of the federal indictment. On June
16, 2006, the United States District Court for the District of Puerto Rico sentenced petitioner to
180 months imprisonment with a five year term of supervised release.1 Petitioner’s federal
While not relevant to this Opinion, petitioner’s term of supervised release was subsequently
reduced from five to three years.
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sentence was ordered to run concurrently to any other sentence imposed by the Commonwealth
of Puerto Rico.
On August 9, 2006, petitioner returned to state custody. Petitioner completed his state
sentence on June 22, 2010 and was released to federal authorities to complete his federal
sentence. The BOP has computed petitioner’s federal sentence as commencing on June 16, 2006.
The BOP has awarded petitioner with ninety-six days of credit prior to this date because the
Commonwealth of Puerto Rico did not respond to the BOP’s request to verify whether his
previous jail time from April 27, 2004 to May 10, 2004 and from May 27, 2004 until August 16,
2004 (a period of 96 days combined) was credited towards his non-federal sentence. According
to the BOP, it states that if petitioner is awarded all of the good time credits that are due to him,
his projected release date is June 27, 2019.
Petitioner filed his federal habeas petition in April, 2014. He claims that the BOP has
improperly calculated his sentence because it has not credited the time he was incarcerated to his
federal sentence from December 28, 2004 until June 16, 2006 to his federal sentence.
Respondent filed an answer in opposition to the habeas petition and petitioner filed a reply in
support of his habeas petition.
III.

DISCUSSION

Determining a term of imprisonment comprises two steps: (1) “a sentence to a term of
imprisonment commences on the date the defendant is received in custody awaiting
transportation to ... the official detention facility at which the sentence is to be served[;]” and (2)
a defendant receives credit for time spent in custody “prior to the date the sentence commences
... that has not been credited against another sentence.” See 18 U.S.C. § 3585(a) & (b); see also
Nieves v. Scism, 527 F. App'x 139, 140–41 (3d Cir. 2013) (“In calculating a sentence, the BOP

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determines (1) when the federal sentence commenced, and (2) whether there are any credits to
which the prisoner may be entitled.”) (citing 18 U.S.C. § 3585). “[A] federal prisoner can receive
credit for certain time spent in official detention before his sentence begins, as long as that time
has not been credited against any other sentence. Section 3585(b) makes clear that prior custody
credit cannot be double counted.” See Williams v. Zickefoose, 504 F. App'x 105, 107 (3d Cir.
2012) (citing United States v. Wilson, 503 U.S. 329, 337 (1992)).
“[A] federal sentence cannot begin to run earlier than on the date on which it is imposed.”
Rashid v. Quintana, 372 F. App'x 260, 262 (3d Cir. 2010) (citing United States v. Labeille–Soto,
163 F.3d 93, 98 (2d Cir. 1998)). Furthermore, “[a] federal sentence does not begin to run when a
defendant is taken into federal custody from state custody pursuant to a writ of habeas corpus ad
prosequendum” because “the state remains the primary custodian in those circumstances.”
Carmona v. Williamson, No. 05–0022, 2006 WL 3042967, at *2 (M.D. Pa. Oct. 23, 2006)
(citations omitted); see also Garcia v. Bureau of Prisons, No. 06–0089, 2006 WL 2645122, at *2
n.2 (D.N.J. Sept. 13, 2006) (noting that sovereign who acquires custody first in time has primary
custody over the defendant and that primary custody remains vested in the jurisdiction which
first arrested the defendant “ ‘until that jurisdiction relinquishes its priority by e.g., bail release,
dismissal of state charges, parole release, or expiration of sentence.... Producing a state prisoner
under writ of habeas corpus ad prosequendum to answer federal charges does not relinquish state
custody.’”) (quoting Chambers v. Holland, 920 F. Supp. 618, 622 (M.D. Pa. 1996), aff'd by, 100
F.3d 946 (3d Cir.1996)).
“Congress made clear that a defendant could not receive double credit for his detention
time.” Wilson, 503 U.S. at 337. This ban on double credits also applies to those situations where
the petitioner is in federal detention under a writ of habeas corpus ad prosequendum during the

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time for which the credits are sought. Here, the Commonwealth of Puerto Rico retained primary
custody over petitioner even after he was produced pursuant to a writ of habeas corpus ad
prosequendum. Thus, it is clear that, under § 3585(b), prior custody credits may only be granted
in this case for the time petitioner spent in federal detention for which he did not receive credit
towards another sentence. However, petitioner has failed to show that he did not receive credits
to his Commonwealth of Puerto Rico conviction for the time between when he was sentenced in
that local case on December 28, 2004, to the time that the federal court sentenced petitioner on
his federal case in June, 2006. See, e.g., Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007)
(time allotted towards state term not available to be credited towards federal sentence under
section 3585(b)). Indeed, during a portion of this time, petitioner was only being borrowed by
federal authorities pursuant to writ of habeas corpus ad prosequendum and that time is not
credited towards his federal sentence. See Negron v. Warden of FCI-Schuykill, 582 F. App’x
124, 125 (3d Cir. 2014) (“[T]he time spent in federal custody pursuant to a writ ad
prosequendum is credited toward his state sentence, not his federal sentence.”) (citations
omitted). Accordingly, petitioner fails to show that he is entitled to further time credits not
awarded from the BOP prior to his June 16, 2006 federal sentence.
This does not end the inquiry, however. Indeed, petitioner also argues that the District
Court of Puerto Rico intended for his federal sentence to be adjusted under U.S.S.G. § 5G1.3(c)
and Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002) to make it fully concurrent with his state
sentence. At the time petitioner was sentenced in 2006, U.S.S.G. § 5G1.3 stated as follows:
(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.
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(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 provisions of subsections (a)(1),
(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the
basis for an increase in the offense level for the instant offense
under Chapter Two (Offense Conduct) or Chapter Three
(Adjustments), 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.
(c) (Policy Statement) In any other case involving an undischarged
term of imprisonment, 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 (2006). This Court has previously explained U.S.S.G. § 5G1.3 and Ruggiano
as follows:
The Court of Appeals held, in Ruggiano v. Reish, that a federal
sentencing court has authority under 18 U.S.C. § 3584 and USSG
5G1.3 (c) to order a federal sentence to be fully and retroactively
concurrent to a state sentence that the defendant was already
serving. The imposition of a retroactively concurrent sentence
under § 5G1.3(c) is more properly termed an “adjustment,” rather
than a credit or downward departure. Id. at 133.
Notably, in Ruggiano, the sentencing judge stated “that he thought
it appropriate to go ahead and recommend that ‘Ruggiano's
sentence’ be served concurrently and that he receive credit for the
amount of time that he served there.” 307 F.3d at 124. “Then, in
his written judgment, [the sentencing judge] recited that
Ruggiano's sentence was to ‘run concurrent with State sentence.
Defendant to receive credit for time served.’” Id. The Third Circuit
found that this language conveyed an intent of the sentencing judge
to grant an adjustment by making the federal sentence retroactively

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concurrent for the entire period of the state sentence pursuant to §
5G1.3(c).
Aponte-Cruz v. Zickefoose, No. 11-1531, 2012 WL 5622123, at *4 (D.N.J. Nov. 15, 2012)
(footnote omitted). It is also worth noting, however, as this Court previously explained in
Aponte-Cruz, that “a 2003 amendment to the 5G1.3 Application Notes provides that subsection
(c) does not authorize an adjustment for time served on a prior undischarged term of
imprisonment, but that a sentencing court may consider a downward departure in extraordinary
cases.” Aponte-Cruz, 2012 WL 5622123, at *4 n.15.
In petitioner’s case, as in Aponte-Cruz, the oral pronouncement of the sentence as well as
the written judgment give no indication that the District of Puerto Rico Judge intended to make a
Ruggiano/5G1.3 adjustment to petitioner’s federal sentence. Indeed, at sentencing, the District
Judge merely stated that petitioner’s federal sentence of 180 months was “to be served
concurrently with any other sentence that he is presently serving.” (Dkt. No. 11-4 at p. 13)
Similarly, the written judgment and sentence merely stated that petitioner’s 180-month federal
sentence was “to be served concurrently with any other sentence imposed by the Commonwealth
of Puerto Rico.” (Dkt. No. 11-3 at p. 3) There was no discussion of credit for time served at
sentencing nor was there any suggestion that petitioner sought an adjustment or that the District
Judge intended to go beyond the normative concurrent sentence in order to impose a sentence
that was retroactively concurrent to the Commonwealth of Puerto Rico sentence. See Nieves, 527
F. App’x at 141 (“[A] concurrent sentence is not automatically retroactively concurrent.”);
Thomas v. Schultz, No. 10-5162, 2012 WL 5200034, at *6 (D.N.J. Oct. 22, 2012) (examining the
sentencing transcript to determine whether petitioner is entitled to federal habeas relief
“[b]ecause the imposition of a concurrent sentence normally means that the sentence being
imposed is to run concurrently with the undischarged portion of the earlier-imposed sentence, it
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is unlikely that a sentencing court would deviate from the norm and impose a retroactively
concurrent sentence without any discussion”) (emphasis in original) (citing 18 U.S.C. § 3584;
Ruggiano, 307 F.3d at 133). Thus, petitioner is not entitled to federal habeas relief based on this
argument as well as the BOP has not erred in determining when petitioner’s federal sentence
began to run. Accord Holloman v. Shartle, No. 14-5831, 2015 WL 2159019, at *4-5 (D.N.J. May
7, 2015) (denying habeas relief where there was no discussion in sentencing transcript or
judgment that indicates or suggests that the federal sentence was intended to run retroactively
concurrent to petitioner’s state sentence); Aponte-Cruz, 2012 WL 5622123, at *4 (same).
IV.

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is denied. An appropriate
order will be entered.

DATED: April 7, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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