Bates v. Saad
Filing
31
MEMORANDUM OPINION AND ORDER DENYING RESPONDENTS MOTION FOR RECONSIDERATION DKT. NO. 29 . Signed by Senior Judge Irene M. Keeley on 8/15/2019 (copy pro se Petitioner via certified mail). (jmm) (Additional attachment(s) added on 8/15/2019: # 1 Certified Mail Return Receipt) (jmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RICHARD LEE BATES,
Petitioner,
v.
CIVIL ACTION No. 1:17cv143
(Judge Keeley)
JENNIFER SAAD,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
On April 15, 2019, the respondent, Jennifer Saad (“Saad”),
moved the Court to reconsider its March 26, 2019 Memorandum Opinion
and Order, granting in part the Petitioner’s § 2241 petition,
pursuant to Federal Rule of Civil Procedure Rule 60(b) (Dkt. No.
26). For the reasons that follow, the Court DENIES Saad’s motion
(Dkt. No. 29).
I. BACKGROUND
A.
Factual Background1
On May 31, 2012, the United States District Court for the
Western District of Virginia sentenced the petitioner, Richard Lee
Bates (“Bates”), to 46 months of imprisonment for distribution of
Oxycodone, in violation of 21 U.S.C. § 841(a)(1) (Count 3), and 60
months of imprisonment for
possession of a firearm during and in
relation to a drug trafficking offense, in violation of 18 U.S.C.
1
A more detailed recitation of the facts is available in the Court’s
prior opinion (Dkt. No. 26).
BATES V. SAAD
1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
§ 924(c)(1) (Count 4), for a total term of 106 months (Dkt. No. 132 at 2-3). In July 2012, the Henry Circuit Court, in Henry County,
Virginia, sentenced Bates to 10 years of imprisonment with 5 years
suspended, which he began serving on August 30, 2012. Id. at 3.
When Bates completed his state sentence on March 9, 2016, he was
transferred to the custody of the United States Marshals Service to
begin serving his federal sentence of 106 months (Dkt. No. 13-3 at
14).
In May 2016, Bates sought a two-level reduction of his
sentence for distribution of Oxycodone (Count 3) pursuant to 28
U.S.C. § 994(u). Id. at 15. The Western District of Virginia
granted Bates’s motion and reduced his total term of imprisonment
from 106 to 97 months (37 months on Count 3 and 60 months on Count
4). Id.
In June 2016, the Federal Bureau of Prisons (“BOP”) granted
Bates’s request for a nunc pro tunc designation as to Count 3. Id.
at 16-18. To effectuate the nunc pro tunc designation, the BOP
selected a retroactive start date for Bates’s federal sentence so
that his 37-month sentence on Count 3 would run concurrently with
his previously-served state sentence and his 60-month sentence on
Count
4——which
had
to
be
served
consecutively
to
any
other
sentence——would begin on March 9, 2016, the day he was transferred
2
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1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
in to federal custody (Dkt. No. 13-2 at 3).
According to the BOP’s calculation, Bates would begin his 37month sentence on July 1, 2013, and satisfy it on March 8, 2016,
the day before being released to federal custody to begin serving
his 60-month sentence on Count 4. Id. Accordingly, the BOP has
contended here that Bates would satisfy his 60-month sentence on
July 13, 2021——more than 64 months later——less good conduct time
(“GCT”) (Dkt. No. 13-3 at 23).
B.
Procedural Background
On August 16, 2017, Bates filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in which he alleged that, after
his nunc pro tunc designation was granted, the BOP miscalculated
his credit for time spent in state prison (Dkt. No. 1). In
response, Saad filed a motion to dismiss or, in the alternative,
for summary judgment (Dkt. No. 13). On October 24, 2018, the
Honorable Michael J. Aloi, United States Magistrate Judge, issued
a Report and Recommendation (“R&R”), recommending that the Court
grant Saad’s motion and dismiss Bates’s petition (Dkt. No. 20).
On March 26, 2019, the Court rejected the R&R, denied Saad’s
motion, granted in part Bates’s § 2241 petition, and directed the
BOP to recalculate both the retroactive start and end dates of
Bates’s federal sentence (Dkt. No. 26). This Court’s decision was
3
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1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
based on the conclusion that “the BOP’s decision fail[ed] to
persuade under any deferential standard because the BOP clearly
abused its discretion when it selected July 1, 2013, as the
retroactive start of Bates’s 37-month term of imprisonment.” Id. at
9-10. In support, the Court explained that, by selecting July 1,
2013 as the retroactive start date for his sentence on Count 3, the
BOP
had
effectively
extended
Bates’s
total
60-month
term
of
imprisonment by 4-plus months. Id. at 10-12.
When Saad filed her timely motion for reconsideration (Dkt.
No. 29), she included a previously unproferred explanation of how
the BOP calculates the start and end dates of federal sentences
(Dkt. No. 29-1), and asserted that the correct end date for Bates’s
federal sentence is July 31, 2021, less GCT (Dkt. No. 29 at 5).
II. APPLICABLE LAW
Under Federal Rule of Civil Procedure 60(b), courts may
relieve a party from a final judgment, order, or proceeding for any
of the following reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered
evidence that, with reasonable diligence,
could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct
by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied,
4
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1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
released, or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that
justifies relief.
Fed. R. Civ. P. 60(b).
A motion to reconsider may be appropriate where “the Court has
patently misunderstood a party . . . or has made an error not of
reasoning but of apprehension. . . . Such problems rarely arise and
the motion to reconsider should be equally rare.” Above the Belt,
Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.
1983) (emphasis added). A motion to reconsider is improper when the
movant “use[s] the motion . . . to ask the Court to rethink what
the Court had already thought through——rightly or wrongly.” Id. In
addition, a movant under Rule 60(b) must “have a meritorious claim
or defense and the opposing party must not be unfairly prejudiced
by having the judgment set aside.” Aikens v. Ingram, 652 F.3d 496,
501 (4th Cir. 2011).
III. DISCUSSION
Here, Saad contends that the BOP correctly calculated Bates’s
federal sentence after exercising its statutory authority under 18
U.S.C. § 3621(b) to grant his nunc pro tunc request (Dkt. No. 29).
In support, she included, for the first time, a detailed breakdown
and explanation of how the BOP makes its calculation, which, she
5
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MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
insists, is consistent with BOP Program Statement (“P.S.”) 5880.28
(Dkt. Nos. 29 at 4-5) and entitled to Chevron deference (Dkt. No.
29 at 3). This claim fails for three reasons.
First, Saad effectively asks the Court to “rethink what [it]
ha[s] already thought through——rightly or wrongly.” Above the Belt,
Inc., 99 F.R.D. at 101. Indeed, she does not contend that the Court
misunderstood or misapprehended the BOP’s calculation (Dkt. No.
29), but rather insists that the calculation is correct or, at the
very least, reasonable and entitled to Chevron deference. Id. These
arguments are not new and were plainly rejected by the Court’s
March 26, 2019 Memorandum Opinion and Order, where it specifically
concluded that the BOP’s calculation failed to persuade under any
deferential standard, including Chevron deference, because the BOP
had abused its discretion by selecting July 1, 2013, as the start
of Bates’s 37-month term of imprisonment (Dkt. No. 26 at 9-10). As
the memorandum opinion explained, this calculation was erroneous
because
it
effectively
extended
Bates’s
consecutive
60-month
sentence by 4-plus months. Id. at 11-12.
Second, Saad does not have a meritorious claim or defense.
Aikens, 652 F.3dat 501 (stating that a movant under Rule 60(b) must
“have a meritorious claim or defense”). Based on her motion for
reconsideration, it is now clear that the BOP’s calculation is
6
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MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
based on its interpretation of P.S. 5880.28, not a federal statute
or regulation (Dkt. No. 29-1). Therefore, its calculation is not
entitled to Chevron or Auer deference. See Hogge v. Wilson 648 F.
App’x.
327,
330
(4th
Cir.
2016)
(noting
that
the
BOP’s
interpretations of its own program statements are entitled only to
Skidmore——not Chevron——deference); see also Tablada v. Thomas, 533
F.3d 800, 806 (9th Cir. 2008) (holding that P.S. 5880.28 is not
entitled to Chevron deference because it “does not purport to carry
the force of law and was not adopted after notice and comment”).
Skidmore deference requires courts only to defer to the BOP’s
interpretation “to the extent it has the ‘power to persuade.’”
Hogge, 648 Fed. App’x at 330 (quoting Knox Creek Coal Corp. v.
Sec’y of Labor, Mine Safety & Health Admin., 811 F.3d 148, 160 (4th
Cir. 2016) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944))). Here, the BOP’s interpretation of P.S. 5880.28 falls
woefully short of satisfying this standard. This is so because the
BOP clearly disregarded its own P.S., the GCT statute (18 U.S.C. §
3624), and relevant case law when it incorrectly calculated the
retroactive start and end dates for Bates’s federal sentence,
effectively extending Bates’s term of imprisonment by four-plus
months.
To avoid this conclusion, Saad has submitted a document
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1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
showing the methods utilized by the BOP for determining the full
term date,2 target release date,3 and sentence commencement date4
(Dkt. No. 29-1). The BOP first determined Bates’s full term date
for his consecutive 60-month sentence by adding the length of the
consecutive portion of his sentence (60 months) to the date of
release from his state sentence (March 9, 2016). Id. This yields a
full term date of March 8, 2021. Id. Next, to determine the target
release date, the full term date (March 8, 2021) was reduced by the
amount of GCT that can be earned during a 60-month sentence (235
days). Id. This yields a target release date of July 16, 2020. Id.
Third, the BOP determined the tentative full term date5 by adding
the amount of GCT that can be earned during a 97-month sentence
(380 days) to the target release date (July 16, 2020). Id. This
results in a tentative full term date of August 1, 2021. Id.
Finally, the BOP determined the sentence commencement date for
Bates’s 97-month sentence by subtracting the full 97-month sentence
2
Referred to in Saad’s motion as expiration full term date (“EFT”).
3
Referred to in Saad’s motion as statutory release date (“SRD”).
4
Referred to in Saad’s motion as date computation began (“DCB”).
5
Referred to in Saad’s motion as “tentative EFT.”
8
BATES V. SAAD
1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
from the tentative full term date (August 1, 2021), arriving at a
sentence commencement date of July 1, 2013. Id.
These calculations, however, give no effect to the GCT earned
during the concurrent portion of Bates’s sentence and, thus, have
no effect on the total number of days he will spend in prison. The
BOP’s piecemeal application of GCT alters the target release date
and the sentence commencement date, effectively extending Bates’s
consecutive 60-month sentence by 4-plus months.
This method directly contravenes P.S. 5880.28’s explanation of
how to calculate a federal sentence running partially concurrent
and
partially
consecutive
to
a
state
sentence
because
of
a
conviction under § 924(c)(1). According to P.S. 5880.28, when “a
non-federal . . . sentence exists at the same time the 924/non-924
sentence is imposed . . . [a]ssuming that the non-924 counts are
ordered to run concurrent with the existing sentence,” the full
term date is calculated by adding the consecutive 924 term to the
non-federal release date, and the sentence commencement date is
calculated by subtracting the total term of the federal sentence
from the full term date. Dept. of Justice, BOP, Program Statement
5880.28: Sentence Computation Manual (CCCA of 1984) (Sept. 20,
1999).
Following this example, Bates’s full term date should be
9
BATES V. SAAD
1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
determined by adding the length of the consecutive portion of his
sentence (60 months) to the non-federal release date (March 9,
2016), resulting in a full term date of March 8, 2021. Bates’s
sentence commencement date should then be determined by subtracting
the total term of his federal sentence (97 months) from his full
term date (March 8, 2021), resulting in a sentence commencement
date of February 8, 2013. GCT should be applied only after both the
full term date and the sentence commencement date have been
determined. This calculation complies with the examples set forth
in P.S. 5880.28.
Conveniently,
Saad’s
motion
does
not
address——let
alone
acknowledge——the Fourth Circuit’s unpublished decision in Hogge,
648 F. App’x. 327, which expressly rejected the exact methodology
now advanced by Saad. In Hogge, the Fourth Circuit determined that
the target release date should be determined by subtracting from
the full term date all GCT earned over the course of the entire
federal sentence. Id. at 331. It further held that the BOP’s
sentencing
calculation
impermissibly
conflicts
with
the
GCT
statute, 18 U.S.C. § 3624. Id. at 330.
Section 3624(a) states “[a] prisoner shall be released by the
Bureau of Prisons on the date of the expiration of the prisoner’s
term of imprisonment, less any time credited toward the service of
10
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1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
the prisoner’s sentence.” (emphasis added). Subsection (b)(2)
further clarifies that “credit awarded under this subsection . . .
shall vest on the date the prisoner is released from custody.” Id.
§ 3624(b)(2) (emphasis added). By applying 37 months worth of
earned GCT to the front end of his sentence, the BOP not only does
not vest Bates’s GCT “on the date [he] is released from custody,”
§ 3624(b)(2), but also gives him “an illusory benefit for his good
behavior during the concurrent portion of his sentence, as it has
no effect on the length of time he will spend in prison,” Hogge,
648 F. App’x. at 332.
Thus, the BOP’s misplaced application of GCT disregards the
“clear purpose of the GCT statute to provide inmates with an
incentive to comply with prison rules.” Id. at 330. The correct
method of calculation, as set forth in 18 U.S.C. § 3624, P.S.
5880.28, and Hogge, makes clear that all of the GCT Bates earned
over the course of his entire federal sentence should be subtracted
from the full term date, March 8, 2021. In other words, Bates
should be released on March 8, 2021, less all GCT earned over his
entire 97-month sentence.
Finally, setting aside the Court’s March 26, 2019 Memorandum
Opinion and Order would unfairly prejudice Bates by extending his
consecutive 60-month sentence by 4-plus months. Aikens, 652 F.3d at
11
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1:17cv143
MEMORANDUM OPINION AND ORDER DENYING
RESPONDENT’S MOTION FOR RECONSIDERATION [DKT. NO. 29]
501 (stating that, to set aside a judgment under Rule 60(b), “the
opposing party must not be unfairly prejudiced”).
IV. CONCLUSION
For the reasons discussed, the Court DENIES Saad’s Motion for
Reconsideration (Dkt. No. 29) and ORDERS that the BOP:
(1)
recalculate the retroactive start date of Bates’s
37-month federal sentence so that
it commences on or before February 8, 2013, and
concludes on or before March 8, 2016; and
(2)
recalculate the start date of Bates’s 60-month
sentence so that it commences on March 9, 2016, and
concludes on or before March 8, 2021, less good
conduct time earned during the entirety of his 97month federal sentence.
The Clerk is directed to mail a copy of this Order to Bates
by certified mail, return receipt requested, and to counsel of
record and all appropriate agencies by electronic means.
DATED: August 15, 2019
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
12
BATES V. SAAD
1:17cv143
ADDENDUM
CHRONOLOGY OF RELEVANT DATES
November 13, 2011:
Bates arrested by the Henry County Sheriff’s
Office, beginning his time spent in pretrial
custody;
August 30, 2012:
Bates commences his state sentence, ending his
time spent in pretrial custody;
July 1, 2013:
Bates
retroactively
starts his federal
sentence of 37 months on Count 3;
March 8, 2016:
Bates ostensibly satisfies his retroactive 37month sentence on Count 3;
March 9, 2016:
Bates
satisfies
his
state
sentence and is
transferred into federal custody to begin his
consecutive, 60-month sentence on Count 4; and
July 13, 2021:
The date Bates is projected to be released
without good conduct time (the latest date he
could be released).
i
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