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Rodriguez v. Vergara

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

September 16, 2019

MARIO AVILES RODRIGUEZ, Petitioner,
v.
RAFAEL VERGARA, Warden, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          REJ.AN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at the Federal Correctional Institution in McRae, Georgia, brings the above-captioned petition pursuant to 28 U.S.C. § 2241. The Court REPORTS and RECOMMENDS the petition be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         On November 10, 2014, Petitioner was arrested in Whitfield County, Georgia on state charges for trafficking in methamphetamine, possession of a firearm by a convicted felon, and a parole violation. (Doc. no. 4-1, Ex. 1, Stopps Aff. ¶ 4 & Attach. 1.) The trafficking and firearm charges were ultimately assigned case No. 16-CR-2040, and the parole revocation proceeding was assigned case No. 676451.[1] (Id.) The Georgia Department of Corrections (“DOC”) revoked Petitioner's parole on December 22, 2014. (Stopps Aff. ¶ 5 & Attach. 2.) While serving his state sentence for the parole violation, the United States Marshal temporarily removed Petitioner from state custody on December 22, 2014, pursuant to a federal writ of habeas corpus ad prosquendum in relation to the current federal sentence he is serving. (Stopps Aff. ¶ 6 & Attach. 4.) On December 19, 2016, United States District Judge Thomas W. Thrash sentenced Petitioner to an eighty-four month term of imprisonment based on Petitioner's guilty plea to conspiracy to possess at least 100 grams of heroin and 50 grams of methamphetamine with the intent to distribute in United States v. Rodriguez, 1:15-CR-438 (N.D.Ga. Dec. 19, 2016). (Stopps Aff. ¶ 7 & Attach. 5.) The federal judgment made no mention of any other sentence or how the Bureau of Prisons (“BOP”) should calculate Petitioner's sentence. (Id.)

         Following the conclusion of his federal proceedings, and because he was in the primary custody of Georgia state officials, Petitioner returned to state authorities on December 23, 2016. (Stopps Aff. ¶ 7 & Attach. 6.) Based on the state drug trafficking and firearm charges for which he was arrested on November 10, 2014, Petitioner was sentenced in 16-CR-2040 in the Superior Court of Whitfield County, Georgia, on March 23, 2017, to a total of fifteen years in prison, which was suspended upon service of two years in confinement. (Stopps Aff. ¶ 8 & Attachs. 7 & 8.) The Whitfield County judgment states, “This case is to run concurrent with Federal Sentence now serving with the U.S. Northern District of Georgia, case number 15-CR-438TWT.” (Stopps Aff., Attach. 7.) DOC officials confirmed Petitioner received credit on this state sentence in 16-CR-2040 from November 11, 2014, through the sentencing date of March 23, 2017. (Stopps Aff. ¶ 8 & Attach. 8.) The sentence for the parole violation ended August 14, 2017. (Stopps Aff. ¶¶ 5, 9 & Attachs. 2 & 3.)

         Because Petitioner satisfied his state obligation on both 16-CR-2040 and the parole revocation as of August 14, 2017, BOP commenced his eighty-four month federal sentence imposed by Judge Thrash in United States v. Rodriguez, 1:15-CR-438 on that same day, August 14, 2017. (Stopps Aff. ¶ 9 & Attach. 9.) Petitioner's projected release date after credit for good conduct time is August 1, 2023. (Id.) The calculation does not include credit for any time spent in state custody from November 11, 2014, through August 14, 2017. (Stopps Aff., Attach. 9.)

         Through the administrative grievance procedure, Petitioner demanded credit on his federal sentence for all time spent in custody from November 11, 2014, through August 14, 2017, to include the time in state custody on the probation revocation and on the sentence imposed in 16-CR-2040. (Doc. no. 1-2.) BOP denied Petitioner's grievance, and Petitioner filed the instant petition again requesting credit for the same disputed time period. (See generally doc. nos. 1, 5, 8.) Respondent maintains Petitioner's projected release date is correct, and he is not entitled to credit on his federal sentence for time already credited to his state sentence. (See generally doc. nos. 4, 7.)

         While pursuing relief in this Court, Petitioner also sought relief in the Northern District of Georgia, asking Judge Thrash to reduce his sentence under Amendment 787 to the Sentencing Guidelines.[2] Judge Thrash denied the request as follows:

The Defendant seeks to have his federal sentence run concurrent with a state sentence that was imposed subsequent to his federal sentence. He relies upon Amendment 787 to the Sentencing Guidelines. Amendment 787 became effective as of November 1, 2014. The Defendant was sentenced on December 19, 2016 under the 2015 Guidelines Manual. Therefore, 18 U.S.C. § 3582(c)(2) is inapplicable. In any event, the Court did not treat the Whitfield County arrest as relevant conduct in sentencing the Defendant and would not have imposed a concurrent sentence. Therefore, the Motion to Reduce Sentence [Doc. 30] is DENIED.

Rodriguez, 1:15-CR-438, doc. no. 32 (N.D.Ga. Aug. 30, 2019).

         II. DISCUSSION

         The issue Petitioner raises concerning the computation of his sentence is governed by 18 U.S.C. § 3585 and Program Statement (“PS”) 5880.28 of the Sentence Computation Manual (CCCA of 1984). The relevant portion of 18 U.S.C. § 3585 provides as follows:

(b) Credit for prior custody.-A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior ...

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