United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Petitioner, an inmate at McRae Correctional Facility, in McRae, Georgia, filed the above-captioned petition pursuant to 28 U.S.C. § 2241 contesting the execution of his sentence of confinement. Having considered all the relevant pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS that the petition be DENIED, that this civil action be CLOSED, and that a final judgment be ENTERED in favor of Respondent.
On February 27, 2008, the United States District Court for the District of Arizona sentenced Petitioner, based on his conviction for Illegal Reentry after Deportation, to an eighteen-month term of imprisonment with a two-year term of supervised release; Petitioner served that term of imprisonment, and was deported to Mexico on January 6, 2009. (Doc. no. 10, Ex. A, Kelly Decl., ¶ 7 & Attach. 2; United States v. Sanchez-Rivera, CR XX-XXXXX-XXX (D. Ariz. Feb. 28, 2008).) After another arrest on July 1, 2009 for Illegal Reentry after Deportation, the District Court for the Southern District of Texas sentenced Petitioner on October 22, 2009 to a term of twenty-four months of imprisonment, and on October 26, 2009, the same court sentenced Petitioner to a six-month term of imprisonment for supervised release violations. (Doc. no. 10, Kelly Decl., ¶¶ 9-10 & Attachs. 4, 5; United States v. Sanchez-Rivera, 2:09CR00614 (S.D. Tex. Oct. 22, 2009) and United States v. Sanchez-Rivera, 2:09CR00896 (S.D. Tex. Oct. 26, 2009).) The judgment imposing the sentence for the violations of supervised release stated the six-month sentence was to be served consecutive to the twenty-four month sentence for Illegal Reentry. (Doc. no. 10, Kelly Decl., Attach. 5, p. 2.) Based on the aggregation of the twenty-four and six-month sentences and the application of jail credit from July 1, 2009 through October 21, 2009, as of October 26, 2009, Petitioner had a thirty-month sentence to serve, with a scheduled release date of September 4, 2011. (Id. ¶¶ 11-12, 14 & Attachs. 6, 7, 9.)
For unknown reasons, the Bureau of Prisons ("BOP") mistakenly released Petitioner to Immigration and Customs Enforcement officials on April 15, 2010, and he was again deported to Mexico. (Id. ¶15 & Attach. 10.) Again, Petitioner illegally returned to the United States and was arrested by federal authorities on October 13, 2010 and charged with Possession with Intent to Distribute Marijuana. (Id. ¶ 16 & Attach 11.) On March 22, 2011, the District Court for the Southern District of Texas sentenced Petitioner to a term of sixty-months of imprisonment, but the judgment does not state whether the sentence was to be served concurrently with, or consecutively to, any other sentence. (Id. ¶ 17 & Attach. 12.)
BOP calculates a current projected release date for Petitioner as January 11, 2016. (Id. ¶¶ 20 & Attachs. 1, 7.) BOP arrived at this projected date by aggregating his thirty-month sentence based on the 2009 conviction for illegal reentry and 2009 supervised release violations and his sixty-month sentence imposed in 2011 for the possession with intent to distribute marijuana conviction. (Id.) As noted above, Petitioner also received jail credit for July 1, 2009 through October 21, 2009, and the projected release date includes earned and projected good conduct time. (Id.)
Petitioner disagrees with BOP's calculation of his sentence, but this is not his first attempt to challenge the calculation of his sentence. He filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Southern District of Texas on July 1, 2011. (Doc. no. 10, Ex. B.) After initially raising six issues for consideration, Petitioner narrowed his arguments to (1) the manner in which his various sentences were aggregated, to include whether his sixty-month sentence imposed in 2011 should be served concurrently with, or consecutively to, his thirty-month sentence imposed in 2009; and (2) the manner in which the approximately six months he was at liberty after his mistaken release in 2010 should be applied to his sentence. ( Id., Sanchez-Rivera v. United States, Civ. Act. No. B-11-136/Crim. No. B-10-1205-2, Report and Recommendation, p. 5.) Petitioner's claims were all rejected in the § 2255 proceeding as substantively meritless and/or procedurally improper. ( Id., adopted without objection by Order entered Feb. 8, 2013.)
Petitioner did not file an appeal of the denial of his § 2255 motion, but instead filed the instant petition under 28 U.S.C. § 2241. In the current petition, Petitioner argues that his twenty-four month sentence imposed in 2009 for illegal reentry should run concurrent with his sixty-month sentence for the 2011 drug conviction, or alternatively, that his twenty-four month sentence had already expired at the time his sixty-month sentence was imposed, leaving an aggregate sentence of only sixty-six months rather than ninety months. (See doc. nos. 1, 11.)
A. The 2009 and 2011 Sentences Must Run Consecutively.
Petitioner's contention that the sentences imposed in 2009 and in 2011 should run concurrently is without merit. Addressing the issue of multiple sentences of imprisonment, 18 U.S.C. § 3584(a) provides in relevant part:
If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.... Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
BOP's Program Statement ("PS") governing multiple sentences of imprisonment adheres to this rule. See PS 5880.28(3)(e)(1) ("If... multiple terms of imprisonment are imposed at different times... without the judge specifying whether they are to run concurrently or consecutively, they will run consecutively unless the statute specifies otherwise." (quoting legislative history for § 3584)).
Here, the terms of imprisonment for Petitioner's illegal reentry and drug convictions were imposed at different times. Indeed, he was sentenced for the drug conviction nearly one and a half years after being sentenced for the illegal reentry conviction. (See doc. no. 10, Kelly Decl., ¶¶ 9, 17 & Attachs. 4, 12.) Nor do the criminal statutes that Petitioner violated provide that his sentences should run concurrently. See 8 U.S.C. §§ 1326(a) & (b)(1); 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)(ii); 18 U.S.C. § 2. Moreover, neither of the sentencing courts ordered that the terms were to run ...