U.S. v. Campbell

• Decision Date: 09 October 2009
• Docket Number: Case No. 09-CR-78.
• Citation: 667 F.Supp.2d 993
• Parties: UNITED STATES of America, Plaintiff, v. Lervon CAMPBELL, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

667 F.Supp.2d 993

UNITED STATES of America, Plaintiff, v. Lervon CAMPBELL, Defendant.

Case No. 09-CR-78.

United States District Court, E.D. Wisconsin.

October 9, 2009.

As Corrected October 13, 2009.

COPYRIGHT MATERIAL OMITTED

John J. Manning, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

MEMORANDUM

LYNN ADELMAN, District Judge.

Defendant Lervon Campbell pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and the parties agree that based on his prior record he qualifies as an armed career criminal under 18 U.S.C. § 924(e), requiring a 15 year minimum sentence. Defendant is now serving a state sentence after revocation, and he asks me to run his federal sentence concurrently. He further requests that I reduce his federal sentence to reflect credit for time already served on the "related" state sentence.

Although I possess the discretion to run the federal sentence concurrently, see 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c), I cannot award sentence credit, see United States v. Wilson, 503 U.S. 329, 333-34, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992), order that the federal sentence commence prior to the date of imposition, see United States v. Walker, 98 F.3d 944, 945-46 (7th Cir. 1996), or, under these circumstances, adjust the sentence below the minimum required by statute, see United States v. Simmons, 450 F.Supp.2d 574, 580-81 (E.D.Pa.2006). Because claims of this sort have arisen in several cases recently, I publish this memorandum addressing the legal issues involved.

I. SENTENCE CREDIT

The Bureau of Prisons ("BOP"), not the sentencing court, determines sentence credit. See Wilson, 503 U.S. at 333-34, 112 S.Ct. 1351; United States v. Koller, 956 F.2d 1408, 1417 (7th Cir.1992); see also United States v. McNeil, 573 F.3d 479, 484 (7th Cir.2009) (stating that "the district court lacks the authority to order the Bureau of Prisons to give credit for time served before the federal sentence is imposed"). A defendant dissatisfied with the BOP's credit determination may challenge it under 28 U.S.C. § 2241, but such actions must be brought against the defendant's prison custodian in the district of confinement, not in the sentencing court. See, e.g., Clemente v. Allen, 120 F.3d 703, 705 (7th Cir.1997); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir.1995); Koller, 956 F.2d at 1417; see also United States v. Prevatte, 300 F.3d 792, 799 n. 2 (7th Cir.2002) (citing Garza v. Lappin, 253 F.3d 918, 921 (7th Cir.2001)). Finally, the BOP is precluded from granting credit for time credited to another sentence. See 18 U.S.C. § 3585(b) (providing that no period of incarceration can be credited against a federal sentence if it already has "been credited against another sentence"); see also United States v. Ross, 219 F.3d 592 594 (7th Cir.2000) (discussing § 3585(b)); McGee, 60 F.3d at 1272 (explaining that the BOP cannot award credit for time credited to a state sentence, even when a federal detainer is in place). This rule applies even when a defendant, serving a state sentence, spends time in the custody of the United States Marshal pursuant to a writ of habeas corpus ad prosequendum. See, e.g., Jake v. Herschberger, 173 F.3d 1059, 1062 n. 1 (7th Cir.1999); Sinito v. Kindt, 954 F.2d 467, 469 (7th Cir.1992); Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.1989).

II. 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." 18 U.S.C. § 3585(a). Under this statute, a federal sentence cannot commence before it is imposed. E.g., Saucedo-Ventura v. United States, No. 4:08-309, 2009 WL 2602188, at *4 (D.S.C. Aug. 24, 2009) (citing Walker, 98 F.3d at 945-46, for the proposition that "it is well-settled that a federal sentence cannot commence before it is imposed"). The district court may order a federal sentence run concurrently with an undischarged state term, see 18 U.S.C. § 3584(a); Romandine v. United States, 206 F.3d 731, 737-38 (7th Cir. 2000), and the BOP can implement such a directive by designating a state facility as the place of federal confinement, see 18 U.S.C. §§ 3585(a) & 3621(b); Romandine, 206 F.3d at 738. However, as noted above, the BOP cannot give credit for any period of pre-sentence custody that has already been credited against another sentence, see 18 U.S.C. § 3585(b); Ross, 219 F.3d at 594, and the district court cannot avoid this limitation by "back-dating" or otherwise directing that the federal sentence commence before it was pronounced, see United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir.1998); see also Thomas v. Hollingsworth, No. 09-cv-085, 2009 WL 2246381, at *1 (S.D.Ill. July 28, 2009) (explaining that a federal sentence ordered to run concurrently with a state sentence does not commence on the same date as the previous state sentence, making the sentences "fully" concurrent); Winston v. Stansberry, No. 3:08cv553, 2009 WL 2230844, at *4 (E.D.Va. July 21, 2009) ("In calculating time served for concurrent sentences, BOP considers a federal sentence to commence when it is imposed.") (footnote omitted).

III. SENTENCE ADJUSTMENTS

The rules set forth above do not forbid the fashioning of a federal sentence that is "fully concurrent" with an undischarged state term. The district court may, in some circumstances, "adjust" a federal sentence so as to make it, effectively, fully concurrent. Indeed, when the state sentence resulted from another offense that is relevant conduct to the federal offense of conviction and was the basis for an increase in the offense level for the instant federal offense under chapters two or three of the sentencing guidelines, U.S.S.G. § 5G1.3(b) provides that:

(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.

U.S.S.G. § 5G1.3(b); see also U.S.S.G. § 5K2.23 (stating that the court may grant a downward departure if the defendant has completed a sentence to which U.S.S.G. § 5G1.3(b) would have applied). The Seventh Circuit has held that, under this guideline, courts should grant such an adjustment even if it lowers the sentence below a mandatory minimum term set by a statute, including the Armed Career Criminal Act, 18 U.S.C. § 924(e). Ross, 219 F.3d at 594-95.

The court grants such an adjustment not by awarding credit or back-dating the sentence but rather by simply shortening the term it otherwise would have imposed. The application notes provide this example:

The defendant is convicted of a federal offense charging the sale of 40 grams of cocaine. Under § 1B1.3, the defendant is held accountable for the sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state offense and has served six months on that sentence at the time of sentencing on the instant federal offense. The guideline range applicable to the defendant is 12-18 months (Chapter Two offense level of level 16 for sale of 55 grams of cocaine; 3 level reduction for acceptance of responsibility; final offense level of level 13; Criminal History Category I). The court determines that a sentence of 13 months provides the appropriate total punishment. Because the defendant has already served six months on the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run concurrently with the three months remaining on the defendant's state sentence, achieves this result.

U.S.S.G. § 5G1.3 cmt. n. 2(D).

Although the guidelines do not provide for such an adjustment when the state offense does not constitute relevant conduct, see U.S.S.G. § 5G1.3(c) & cmt. n. 3(E),¹ courts may, pursuant to their general sentencing discretion under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), reduce a sentence so as to make it fully concurrent. See, e.g., United States v. Villegas-Miranda, 579 F.3d 798, 803 (7th Cir.2009) (finding legally meritorious the argument that the district court may reduce a sentence based on the lost opportunity to serve it concurrently with state time); United States v. Tariq, No. 06-CR-336, 2008 WL 5210869, at *3 (E.D.Wis. Dec. 12, 2008) (collecting cases addressing such adjustments); United States v. Brannon, 377 F.Supp.2d 667, 670-71 (E.D.Wis. 2005) (discussing the court's ability to modify a federal sentence to make it fully concurrent with an undischarged state sentence); see also McNeil, 573 F.3d at 484 (noting "that the only way for the district court to impose a `fully concurrent' sentence was to reduce the federal sentence by the amount of time already served on the state sentences").

As noted above, in the present case the undischarged term of imprisonment arises out of the revocation of defendant's state supervision. In cases in which the defendant is serving an undischarged term of imprisonment based on a revocation, U.S.S.G. § 5G1.3(c) applies. See U.S.S.G. § 5G1.3 cmt. n. 3(C); United States v. Broadnax, 536 F.3d 695, 701-02 (7th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 665, 172 L.Ed.2d 638 (2008). Section 5G1.3(c) states that the court may order the sentence run concurrent or consecutive to achieve a reasonable punishment for the instant offense. U.S.S.G. § 5G1.3(c). Although the application notes recommend that the court order the federal sentence run consecutively when the undischarged term...