Schleining v. Thomas

• Decision Date: 27 June 2011
• Docket Number: No. 10–35792.,10–35792.
• Citation: 642 F.3d 1242
• Parties: Russell Eugene SCHLEINING, Petitioner–Appellant,v.J.E. THOMAS, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

642 F.3d 1242

11 Cal. Daily Op. Serv. 7946

2011 Daily Journal D.A.R. 9542

Russell Eugene SCHLEINING, Petitioner–Appellant,

v.J.E. THOMAS, Warden, Respondent–Appellee.

No. 10–35792.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2011.Filed June 27, 2011.

Stephen R. Sady, Federal Public Defender's Office, Portland, OR, for the petitioner-appellant.Dwight C. Holton, Kelly A. Zusman, James E. Cox, Jr., United States Attorney's Office, Portland, OR, for the respondent-appellees.Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, Senior District Judge, Presiding. D.C. No. 3:09–cv–01087–MA.Before: ALEX KOZINSKI, Chief Judge, CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.

OPINION

BEA, Circuit Judge:

This case requires us to determine whether a prisoner is eligible for federal Good Conduct Time (“GCT”) under 18 U.S.C. § 3624(b)(1) for time he served in state prison on state charges, before being sentenced on a related charge in federal court. We hold that he is not so eligible.

Federal prisoner Russell Schleining appeals the district court's denial of his petition for writ of habeas corpus challenging the Bureau of Prison's (“BOP”) calculation of his Good Conduct Time (“GCT”) credit under 18 U.S.C. § 3624(b). Schleining contends that he accrued 82 days of GCT during the 21 months he served in state custody on state burglary, narcotics, and drug paraphernalia charges before he was sentenced in federal court on a related felon-in-possession charge.¹ The district court denied Schleining's habeas petition, holding that Schleining was not eligible for GCT credit for the time he spent in state custody before his federal sentence was imposed by the district court.

We affirm. Under the terms of 18 U.S.C. § 3624(b)(1), GCT can accrue only on the time a prisoner has “actually served” on his federal sentence. See Barber v. Thomas, ––– U.S. ––––, 130 S.Ct. 2499, 2506–07, 177 L.Ed.2d 1 (2010). Pursuant to 18 U.S.C. § 3585(a), “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.” Although this court has not yet been called upon to determine when a federal sentence begins for a prisoner already serving a state term of imprisonment, other courts have interpreted § 3585(a) to mean that a federal sentence cannot begin before the defendant has been sentenced in federal court. See United States v. Gonzalez, 192 F.3d 350, 355 (2d Cir.1999) (holding that a district court cannot “backdate” a federal sentence to the beginning of a state prison term on related state charges); United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980) (“[A] federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served.”).

We find the logic of our sister circuits persuasive, and we adopt their interpretation of § 3585(a). Therefore, because a federal sentence cannot commence until a prisoner is sentenced in federal district court, and GCT can accrue only on time served on a federal sentence, Schleining is not eligible for GCT credit for the 21 months he served in state custody discharging his state sentence before he was sentenced in federal court.

Background

Schleining was arrested by Montana state authorities on September 3, 2003 for burglary and attempted burglary. When he was arrested, Schleining—a previously convicted felon—was also found in possession of a firearm. On November 12, 2003, Schleining pleaded guilty in state court to one count of attempted burglary, one count of possession of narcotics, and one count of possession of drug paraphernalia. He was sentenced the same day to ten years in state prison, with five years suspended. He immediately commenced serving his sentence in state prison.

On June 2, 2004, a federal grand jury indicted Schleining on three counts relating to the firearm found during his arrest for the state crimes. Schleining was subsequently brought into federal custody on January 25, 2005, pursuant to a writ of habeas corpus ad prosequendum. On April 8, 2005, Schleining pleaded guilty in the United States District Court for the District of Montana to one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e).

On July 8, 2005, the Honorable Donald W. Molloy, United States District Judge for the District of Montana, conducted a sentencing hearing. At the hearing, Judge Molloy exercised his discretion under U.S.S.G. § 5G1.3 to adjust Schleining's sentence for the 21 months he had already served in state prison on related state crimes, decreasing what Judge Molloy considered an appropriate guidelines sentence—115 months—to 94 months. Section 5G1.3(b) of the 2008 Federal Sentencing Manual provides:

(1) the court shall adjust the [federal] 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.

U.S.S.G. § 5G1.3(b) (emphasis added).

Application of § 5G1.3(b)(1) was appropriate in this instance because the BOP would not have been able to credit Schleining's 21 months in state prison against his federal sentence because those 21 months had already been credited against his state sentence on related charges.² As Judge Molloy explained:

The guideline range, as I said, is 92 to 115 months. And I can fashion a sentence that is appropriate, I believe, for giving you credit for the time that you've been in the state and then making this sentence run concurrent with the state sentence, which I intend to do.

Pursuant to 18 U.S.Code section 3553 and having considered the advisory guidelines, ... it is my judgment that Russell Eugene Schleining be committed to the custody of the Bureau of Prisons for a term of 94 months.

This is a reflection of my determination that an appropriate sentence is 115 months but with the application of [§ ] 5G1.3, giving you credit for the time that you've been serving in the state, that reduces it down to 94 months.

Thereafter, as reflected in the judgment record, Judge Molloy sentenced Schleining to 94 months on the federal charge to be served concurrently with Schleining's state sentence.

Following his federal sentencing on July 8, 2005, Schleining was returned to state custody. He served the remainder of his state sentence, and was transferred to federal custody on February 21, 2007. At that point, the BOP calculated Schleining's GCT credit under 18 U.S.C. § 3624(b)(1). Section 3624(b)(1) provides, in relevant part:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.

The BOP based its GCT calculation on the 94–month sentence Schleining received from Judge Molloy on July 8, 2005.³ Based on the 94–month sentence, the BOP calculated Schleining's expected GCT credit as 368 days, setting a projected release date of May 4, 2012—with possible early release available upon successful completion of a drug treatment program.

On September 11, 2009, Schleining filed a petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2241. Schleining contended that the BOP's GCT calculation failed to account for GCT credits he accrued during his pre-federal-sentence incarceration on related state charges. Schleining claimed he was entitled to 82 additional days of GCT credit for the 21 months he served in state custody before the district court imposed his federal sentence. On September 7, 2010, the district court denied his petition, holding that Schleining was not eligible for GCT credit under § 3624(b) for time served in state custody on state charges before he was sentenced in federal court. Schleining timely appealed.

Standard of Review and Jurisdiction

This court has jurisdiction to review a district court's denial of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2253(a). This court reviews the district court's denial of the habeas petition de novo. Jonah R. v. Carmona, 446 F.3d 1000, 1003 (9th Cir.2006). We also review questions of statutory construction de novo. Ileto v. Glock, Inc., 565 F.3d 1126, 1131 (9th Cir.2009). Chevron deference to an agency's interpretation of an ambiguous statute applies only if the agency involved has formally interpreted the statute or promulgated a rule based on an implicit interpretation of the statute. Gonzales v. Oregon, 546 U.S. 243, 258, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). Here, the BOP has not formally interpreted the relevant statutes with regard to the issue at hand, nor has it promulgated rules addressing the question. Therefore, this court performs the statutory analysis de novo without any deference to the BOP's interpretation.

Analysis

I. GCT credit under 18 U.S.C. § 3624(b)(1)

18 U.S.C. § 3624(b)(1) grants the BOP authority to give a prisoner serving a federal sentence up to 54 days of credit on his sentence each year if the BOP determines the prisoner displayed exemplary compliance with institutional disciplinary regulations. Both parties stipulate that prisoners housed in federal prison after being sentenced in federal court are eligible for such GCT credit. Further, the...