Sadler v. Baltazar

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Justin Sadler, ) No. CV 18-0485-TUC-RCC (LAB) 9 ) Petitioner, ) REPORT AND RECOMMENDATION 10 ) vs. ) 11 ) Juan Baltazar, ) 12 ) Respondent. ) 13 ) ) [14] 15 Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. 16 2241, filed on September 26, 2018. (Doc. 1) The petitioner, Justin Sadler, claims the Bureau 17 of Prisons (BOP) failed to acknowledge that his sentence of 120 months was to run concurrent 18 to his previously imposed sentence of two years and improperly calculated his total sentence. 19 The respondent filed an answer opposing the petition on June 12, 2019. (Doc. 11) The 20 respondent argues the petition should be denied on the merits. (Doc. 11, p, 2) Sadler did not 21 file a timely reply. 22 Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate 23 Judge Bowman for a Report and Recommendation. The court assumes, without deciding, that 24 Sadler properly exhausted his administrative remedies. The petition should be denied on the 25 merits. The BOP’s calculation is correct. 26 // 27 // [28] 1 Summary of the Case 2 On June 16, 2006, Sadler received a 120-month sentence for Conspiracy to Possess with 3 Intent to Distribute Methamphetamine in 05-CR-126. (Doc. 11-1, p. 2) He was released and 4 commenced serving a term of supervised release in December of 2011. Id. 5 On April 8, 2013, Sadler received a two-year sentence for violating his supervised 6 release in 05-CR-126. (Doc. 11-1, p. 2); (Doc. 11-2, pp. 33-34) He began serving his sentence 7 immediately. On January 6, 2014, Sadler received an additional 120-month sentence for Felon 8 in Possession of a Firearm. (Doc. 11-2, pp. 43-44) The sentence was “to be served concurrent 9 to sentence in case 05-CR-126.” (Doc. 11-2, p. 44) 10 The BOP calculated Sadler’s total sentence as being 10 years, 8 months and 29 days. 11 (Doc. 11-1, p. 4) The BOP made this calculation by taking the 120-month sentence and tacking 12 it onto the amount of time that Sadler already served on his two-year supervised release 13 violation sentence as of the date the 120-month sentence was imposed. See Id. That two-year 14 sentence started on April 8, 2013. Id. It ran for approximately 9 months, actually 8 months and 15 29 days, when on January 6, 2014, Sadler’s 120-month sentence began. Id. Adding the 8 16 months and 29 days to Sadler’s 120-month sentence gives a total sentence of incarceration of 17 10 years, 8 months and 29 days. Id. The BOP then credited Sadler with 24 days of prior 18 custody credit giving him a “full term release date [of] December 12, 2023, not counting Good 19 Conduct Credit.” Id., pp. 4-5 The BOP’s calculation is correct. 20 Sadler complains that “the BOP converted petitioner’s term of imprisonment to one of 21 10 years, 8 months and 29 days rather than the sentence imposed by the federal sentencing court 22 of 120 months to be served concurrently with the sentence of two years for the revocation of 23 supervised release.” (Doc. 1-1, p. 3) Sadler apparently believes that the term “concurrent” 24 means that the supervised release violation sentence and the 120-month sentence must 25 completely overlap. That is to say, he believes the BOP should assume that the 120-month 26 sentence started on April 8, 2013, the same day that the supervised release violation sentence 27 started. And then, his total sentence would be 120-months long, or 10 years. Sadler thinks the 28 BOP has improperly extended his sentence by 8 months and 29 days. He is incorrect. 1 A sentence can run concurrent with an unexpired portion of a previously imposed 2 sentence, but it cannot run concurrent with that part of a previously imposed sentence that has 3 already run. A sentence starts when the defendant is taken into custody to serve that sentence, 4 and not before. See 18 U.S.C. § 3585 (a) (“A sentence to a term of imprisonment commences 5 on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily 6 to commence service of sentence at, the official detention facility at which the sentence is to be 7 served.”); Schleining v. Thomas, 642 F.3d 1242, 1244 (9th Cir. 2011) (“[A] federal sentence 8 cannot begin before the defendant has been sentenced in federal court.”) (emphasis in original); 9 United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980) (“The sentences could not be 10 concurrent in the sense of having the same starting date because a federal sentence cannot 11 commence prior to the date it is pronounced, even if made concurrent with a sentence already 12 being served.”). 13 In this case, Sadler’s 120-month sentence started on the day it was imposed, January 6, 14 2014.1 It ran concurrent with the unexpired portion of the previously imposed 2-year sentence 15 until that sentence expired. Sadler’s total federal incarceration can be calculated by taking that 16 part of the 2-year sentence that was served before January 6, 2014 and then adding the 12017 month sentence onto that. In all, Sadler’s total aggregate sentence of incarceration is 10 years, 18 8 months and 29 days. The BOP’s sentencing calculation is correct. [19] 20 RECOMMENDATION 21 The Magistrate Judge recommends that the District Court, after its independent review 22 of the record, enter an order denying the petition for writ of habeas corpus filed on September 23 26, 2018. (Doc. 1) 24 Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 25 14 days of being served with a copy of this Report and Recommendation. If objections are not [27] 1 If Sadler’s 120-month sentence was run consecutive to his 2-year supervised release 28 violation sentence, it would not have started until the 2-year sentence was over. 1 || timely filed, they may be deemed waived. The Local Rules permit a response to an objection. 2 || They do not permit a reply to a response without the express permission of the District Court. 3 DATED this 23" day of August, 2019. [5] 6 Reels A.B rwmen 7 Leslie A. Bowman United States Magistrate Judge [28] _4-