United States District Court, S.D. Georgia, Waycross Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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.
I. Sentence Computation
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
(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)).
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 ...