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Preciado-Rojas v. Johns

United States District Court, S.D. Georgia, Waycross Division

September 5, 2017

MARCO PRECIADO-ROJAS, Petitioner,
v.
T. JOHNS, Warden, Respondent.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner Marco Preciado-Rojas (“Preciado-Rojas”), who was previously housed at D. Ray James Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 13.) For the reasons which follow, I RECOMMEND that the Court DENY Preciado-Rojas' Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the Clerk of Court to CLOSE this case, and DENY Preciado-Rojas leave to proceed in forma pauperis.

         BACKGROUND

         Preciado-Rojas was convicted in the United States District Court for the Northern District of Georgia of illegal entry after deportation, in violation of 8 U.S.C. § 1326(a). (Doc. 13-1, pp. 16-17.) The Northern District of Georgia sentenced Preciado-Rojas to sixty-two months' imprisonment. (Id.)

         In his Petition, Preciado-Rojas contends that the Bureau of Prisons (“BOP”) has miscalculated his sentence. (Doc. 1.) Specifically, he contends that the BOP has not awarded him the appropriate amount of jail credit toward the service of his federal sentence. Additionally, he suggests that he is entitled to credits toward his sentence under Willis v. United States, 438 F.2d 923 (5th Cir. 1971).

         Respondent contends Preciado-Rojas has received all of the credit against his federal sentence to which he is entitled. (Doc. 13, pp. 6-8.) Respondent contends that the BOP already gave Preciado-Rojas credit for one of the periods of detention for which he seeks credit against his sentence. (Id. at pp. 5-6.) Additionally, Respondent maintains that any time that Preciado-Rojas spent in custody of Immigration and Customs Enforcement (“ICE”) pending a civil deportation determination cannot be credited toward his sentence. (Id. at pp. 6-7.) Further, Respondent takes the position that 18 U.S.C. § 3585(b) prohibits the application of the some of the requested jail credit Preciado-Rojas seeks because the time at issue was already applied toward the service of a state sentence. (Id. at pp. 7-8.) Respondent also maintains that the BOP properly denied Preciado-Rojas Willis credits because his state and federal sentences were not concurrent.

         DISCUSSION

          I. Sentence Computation

         It is the duty of the United States Attorney General, acting through the BOP, to determine the amount of credit due for the time served by the defendant prior to sentencing. United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010). 18 U.S.C. § 3585, which pertains to “credit for prior custody, ” is controlling for making credit determinations for sentences imposed under the Sentencing Reform Act of 1984. This statute provides:

(a) Commencement of sentence. B 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.
(b) Credit of Prior Custody. B A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences -
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.

18 U.S.C. § 3585 (emphasis added). In determining the proper credit, a two-part analysis is helpful. First, it must be determined when the sentence commenced. A sentence “‘cannot begin prior to the date it is pronounced, even if made concurrent with a sentence already being served.'” Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006) (quoting United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980)).

         “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” United States v. Ballard, 6 F.3d 1502, 1505 (11th Cir. 1993); see also 18 U.S.C. § 3584(a). It is for a federal court to decide if an offender's federal sentence will run concurrently or consecutively to any state sentence the offender may face. See United States v. Andrews, 330 F.3d 1305, 1307 n.1 (11th Cir. 2003). Additionally, “‘if a defendant is in state custody and he is turned over to federal officials for federal prosecution, the state government's loss of jurisdiction is only temporary. The prisoner will be returned to state custody at the completion of the federal proceedings or the federal sentence if the federal government wishes to execute it immediately.'” Powell v. Jordan, 159 F. App'x 97, 99-100 (11th Cir. 2005) (quoting Causey ...


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