1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUAN BECERRA, JR., Case No. CV 19-9934-PD

12 Petitioner,

MEMORANDUM OPINION

13 v.

AND ORDER DENYING

14 J. ENGLEMAN, Acting Warden,1 PETITION, DISMISSING

WITH PREJUDICE, AND

15 Respondent.

DENYING A CERTIFICATE

16 OF APPEALABILITY

17 18

I. Procedural History and Petitioner’s Contention

Petitioner Juan Becerra, Jr. filed a Petition for Writ of Habeas Corpus 19 by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. Petitioner is 20 currently incarcerated at the Federal Correctional Complex-Lompoc, serving 21 concurrent sentences imposed in two separate cases in the Southern District 22 of Texas. The Petition challenges the Bureau of Prisons’ computation of the 23 sentence in one of those cases and seeks an order from this Court modifying 24 the sentence commencement date or granting equivalent credit. 25 26

27 1 Pursuant to Fed. R. Civ. P. 25(d), J. Engleman, who currently serves as acting complex warden of Federal Correctional Complex-Lompoc, is hereby 28 1 The parties consented to the jurisdiction of the United States 2 Magistrate Judge to conduct all further proceedings in the case, including the 3 entry of final judgment. [Dkt. Nos. 4, 11.] Respondent filed an Answer and 4 Petitioner filed two replies. 5 For the reasons set forth below, the Court denies and dismisses the 6 Petition with prejudice because the Bureau of Prisons computed the sentence 7 in accordance with the governing statute and Ninth Circuit precedent. 8 II. Pertinent Facts 9 In March 2011, Petitioner was arrested in the Southern District of 10 Texas for possession of marijuana with intent to distribute. He was detained 11 from the date of his arrest until June 2011, when the charges were dismissed. 12 [Dkt. No. 12-1 at 5, 23.] 13 In September 2014, Petitioner was arrested and charged in Case No. 14 2:14-CR-00728-001 (the “2014 Case”) in the Southern District of Texas for conspiracy to transport undocumented aliens. He was released on bond for 15 approximately six months, from September 2014 and March 2015, until he 16 was re-arrested after testing positive for cocaine. In January 2015, a jury 17 convicted of conspiracy to transport undocumented aliens and aiding and 18 abetting the transportation of an undocumented alien. On June 18, 2015, 19 Petitioner was sentenced to a term of 33 months on both counts, to run 20 concurrently. [Id. at 5-6, 32.] 21 After Petitioner began serving the sentence imposed in the 2014 Case, 22 he was indicted in the Southern District of Texas on August 26, 2015, on 23 charges related to the 2011 arrest. On September 29, 2015, Petitioner was 24 arrested and made an initial appearance in Case No. 2:15-CR-00742-002 25 (“2015 Case”). On June 20, 2016, the court accepted Petitioner’s guilty plea to 26 one count of conspiracy to possess with intent to distribute more than 1,000 27 kilograms of marijuana, and on October 21, 2016, Petitioner was sentenced to 28 1 120 months incarceration. [Id. at 25, 43, 52.] The judgment of conviction in 2 the 2015 Case stated: “This term consists of 120 months to be served 3 concurrently with the undischarged sentence of imprisonment in [the 2014 4 Case].” [Id. at 52.] It also contained the sentencing court’s recommendation 5 “that the defendant receive credit for incarceration from the time of his arrest 6 on the federal warrant for the instant offense.” [Id.] During the sentencing 7 hearing, the Court informed the probation officer, who was present, that the 8 Court intended this specific credit to be his recommendation and ordered that 9 it be part of the judgment. [Dkt. No. 12 at 27-28.] 10 For administrative purposes, the Bureau of Prisons (“BOP”) aggregated 11 both sentences into a single sentence. In doing so, the BOP set the sentence 12 commencement date as June 18, 2015, which is the date when the 33-month 13 sentence in the 2014 Case was imposed. The BOP then recognized the 14 commencement date of the sentence in the 2015 Case as October 21, 2016, the date when Petitioner was sentenced to 120 months. Thus, the two sentences 15 do not overlap entirely. Credit was applied to the single aggregated sentence 16 for the following periods: 17 1. March 30, 2011 to June 21, 2011 (in custody for the offense 18 related to the 2015 case); 19 2. September 9, 2014 to September 15, 2014 (in custody for the 20 2014 Case); and 21 3. March 12, 2015 to June 17, 2015 (in custody for the 2014 case). 22 The BOP did not credit the period between Petitioner’s indictment and 23 sentencing in the 2015 Case – August 2015 to October 2016 – to the sentence 24 for the 2015 Case, but instead credited it as time served on the sentence from 25 the 2014 Case. [Dkt. No. 12-1 at 8-9.] 26 Petitioner exhausted all administrative remedies challenging the BOP’s 27 calculation in June 2018. [Id. at 4-5.] 28 1 III. Discussion 2 To obtain relief under 28 U.S.C. § 2241, a petitioner must show that 3 “[h]e is in custody in violation of the Constitution or laws or treaties of the 4 United States." 28 U.S.C. § 2241(c)(3). A federal prisoner may challenge the 5 “manner, location, or conditions of the sentence's execution” in the custodial 6 court through a habeas action. Hernandez v. Campbell, 204 F.3d 861, 865 7 (9th Cir. 2000) (citation omitted). 8 Calculation of a federal prison term is governed by 18 U.S.C. § 3585, 9 which provides: 10 (a) Commencement of sentence.—A sentence to a term of imprisonment commences on the date the defendant is received in 11 custody awaiting transportation to, or arrives voluntarily to 12 commence service of sentence at, the official detention facility at which the sentence is to be served. 13 14 (b) Credit for prior custody.—A defendant shall be given credit toward the service of a term of imprisonment for any time he has 15 spent in official detention prior to the date the sentence commences— 16

17 (1) as a result of the offense for which the sentence was imposed; or 18

19 (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which 20 the sentence was imposed; 21 that has not been credited against another sentence. 22 18 U.S.C. § 3585. 23 The sentencing court does not compute the sentence. The BOP, acting 24 with authority delegated by the Attorney General, computes a federal 25 prisoner's sentence. United States v. Wilson, 503 U.S. 329, 334 (1992) 26 (“§ 3585(b) does not authorize a district court to compute the credit at 27 sentencing.”); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir. 1998). A 28 1 prisoner may seek habeas relief on the ground that the BOP’s computation 2 unlawfully affects the length of his sentence. Schleining v. Thomas, 642 F.3d 3 1242, 1244 (9th Cir. 2011) (upholding BOP’s computation of good time credits 4 and expected release date), cert. denied, 132 S. Ct. 2415 (2012). 5 Petitioner contends that the BOP’s computation violates his Fourth, 6 Fifth, Sixth, Eighth and Fourteenth Amendment rights because the 7 sentencing court ordered that Petitioner’s sentence of 120 months in the 2015 8 Case be served concurrently with the 33-month sentence imposed in the 2014 9 Case. He argues that the Court was clear in its intention that Petitioner 10 receive credit for the time after he was indicted in the 2015 Case and asks 11 this Court to recognize the sentence’s commencement date as August 27, 12 2015, or to grant him credit for the time from August 27, 2015, to October 21, 13 2016. 14 a. A Sentence May Not Commence Prior to its Imposition “[U]nder § 3585(a), ‘[a] sentence to a term of imprisonment commences 15 on the date’ that the federal government has primary jurisdiction over a 16 defendant who is ‘received in custody awaiting transportation to’ the official 17 detention facility.” Johnson v. Gill, 883 F.3d 756, 764 (9th Cir. 2018) 18 (alteration in original) (quoting 18 U.S.C. § 3585(a)). A sentence cannot 19 commence until after it has been imposed by the court, even where the 20 sentence is ordered to run concurrently with an existing sentence. Schleining, 21 642 F.3d at 1244 (adopting the interpretation of Second and Fifth Circuits). 22 The Ninth Circuit in Schleining concluded that good time credit could not be 23 awarded for time served in state custody prior to the imposition of a federal 24 sentence ordered to run concurrently thereto. The court was persuaded by the 25 reasoning in United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980), which 26 involved concurrent federal sentences, that a federal sentence does not 27 commence prior to its imposition. Schleining, 642 F.3d at 1248 (“What was 28 1 true with regard to a prior federal sentence in Flores is even more persuasive 2 with regard to a prior state sentence, as here.”). 3 Here, as in Flores, the concurrent sentences are both federal. The 4 sentence in the 2015 Case could not commence before it was imposed on 5 October 21, 2016, regardless of the Court’s intention and order. See Taylor v. 6 Reno, 164 F.3d 440, 445 (9th Cir. 1998) ("Any statement by the court 7 prescribing when a sentence will begin to run is mere surplusage."). 8 Petitioner’s citation to United States v. Grimon, 440 Fed. Appx. 830, 831 (11th 9 Cir. 2011) is unpersuasive because the issue there was that the sentencing 10 court had questioned its ability to impose a concurrent sentence at all and 11 ultimately imposed a federal sentence consecutive to undischarged state 12 sentences. 2 No such sentence was imposed here. 13 Therefore, the BOP did not violate any federal right in setting the 14 commencement date of Petitioner’s sentence in the 2015 Case. 15 b. No Credit for Prior Custody May Be Granted When it is Already Credited to Another Sentence 16 Under section 3585(b), a defendant may be credited for time served in 17 custody unless that time has already "been credited against another 18 sentence." See Mont v. United States, 139 S.Ct. 1826, 1834 (2019) (quoting 18 19 U.S.C. § 3585(b)) ("Congress denies defendants credit for time served if the 20 detention time has already 'been credited against another sentence.’”) 21 Petitioner received credit to his single aggregated sentence for three 22 separate periods. In practice, the aggregate sentence consisting of the two 23 concurrent sentences operates in the following manner: 24 25

26 2 Petitioner also argues that the BOP has the authority to implement a fully 27 concurrent sentence under 18 U.S.C. § 3621(b), but that section addresses the BOP’s designation of the place of imprisonment when there are multiple sentences, not the 28 1 1. The 33-month sentence in the 2014 Case began in September 2015, pursuant to § 3585(a), on the date it was 2 imposed. 3 2. The 120-month sentence in the 2015 Case began in October 4 2016, pursuant to § 3585(a), on the date it was imposed. 5 3. The sentences began to run concurrently on the date the sentence in the 2015 Case sentence commenced. All 6 subsequent time is served in both cases, concurrently. 7 4. The single aggregate sentence is credited by two periods that apply to the 2014 Case and one period that applies to 8 the 2015 Case. 9 Petitioner seeks credit in the 2015 Case for the period from August 27, 10 2015 to October 21, 2016, when he was in custody, because an arrest warrant 11 had issued in that case. During that period, Petitioner was serving the 12 sentence in the 2014 Case. 13 Petitioner’s argument misinterprets section 3585(b). The period at 14 issue (from August 27, 2015 to October 21, 2016) cannot be credited toward 15 the sentence in the 2015 Case because it was credited toward his sentence in 16 the 2014 Case. If Petitioner were granted his desired relief, he would receive 17 double credit; once toward the 2014 Case and once toward the 2015 Case. He 18 is not entitled to credit for what would be pretrial detention in the 2015 Case 19 because during that time he was serving the sentence imposed in the 2014 20 Case. See Aguilar v. Entzel, 770 Fed. Appx. 878, 879 (9th Cir. 2019) (no credit 21 for pretrial detention in one federal case where it has been credited to another 22 federal sentence). 23 Petitioner argues that he is essentially serving consecutive sentences.3 24 Consecutive sentences never run at the same time, and one sentence does not 25

26 3 In the Reply filed on June 10, 2020, Petitioner defines a concurrent sentence 27 and provides an example of two concurrent sentences, one of 5 years and the other, 15 years, which results in a total of 15 years’ incarceration. [Dkt. No. 20 at 4.] This 28 1 commence until the completion of another. See, e.g., Sherman v. Scribner, 2 2011 U.S. Dist. LEXIS 156508, at *66 (C.D. Cal. 2011) (state petitioner 3 sentenced to a total of 140 years to life, consisting of five consecutive 4 sentences of 25 years to life, and three consecutive sentences of five years); 5 Rodarte v. Schumming, 2017 U.S. Dist. LEXIS 73726, at *5 (D. Mont. 2017) 6 (“Defendants have correctly treated [the petitioner’s] four sentences 7 consecutively in that he must finish serving each 20 year sentence before he 8 starts serving the next 20 year sentence.”). If the BOP had computed a term 9 composed of two consecutive sentences in Petitioner’s case, the sentence in the 10 2015 Case would not have commenced until the sentence in the 2014 Case 11 had concluded. That is not what occurred here. 12 In sum, the operative statute and Ninth Circuit caselaw determine 13 when Petitioner’s sentence commences and what credit may be applied. The 14 BOP's calculation of credit in his concurrent sentences correctly applied that law. 15 16

IV. Order

For these reasons, the Petition is denied and the action is dismissed 17 with prejudice. Further, because Petitioner has not made a substantial 18 showing of the denial of a constitutional right, he is not entitled to a 19

20 21 22 23 24 25 26 27 dates, they would not overlap completely even if that were the sentencing court’s 28 ! | certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); 2 || Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 3 || 473, 484 (2000). 4 Dated: January 07, 2021 . Pali Lena hue ° PATRICIA DONAHUE 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28