United States District Court, E.D. Arkansas, Eastern Division
JOSHUA J. JENKINS REG # 18181-280 PETITIONER
v.
USA, et al. RESPONDENTS
ORDER
Kristine G. Baker, United States District Judge
The
Court has reviewed the Proposed Findings and Recommendation
submitted by United States Magistrate Judge Patricia S.
Harris (Dkt. No. 10). Petitioner Joshua J. Jenkins filed
objections to the Proposed Findings and Recommendation and a
separate exhibit that the Court has considered in conjunction
with his objections (Dkt. Nos. 11, 13). After careful
consideration of the Proposed Findings and Recommendation,
the objections, and a de novo review of the record,
the Court concludes that the Proposed Findings and
Recommendation should be, and hereby are, approved and
adopted in their entirety as this Court's findings in all
respects (Dkt. No. 10).
I.
Sentence Computation
In his
objection, Mr. Jenkins asserts that his sentence has been
incorrectly calculated (Dkt. No. 11, at 1). The Court
concludes that the Bureau of Prisons (“BOP”)
correctly calculated Mr. Jenkins' sentence. The
computation of sentences is governed by 18 U.S.C. §
3585, which provides, with respect to credit for prior
custody, that “[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, ” but that such credit shall not be
given if such time in official detention has “been
credited against another sentence.” 18 U.S.C. §
3585(b). In other words, time spent in official custody
cannot count against two separate sentences. A federal
sentencing court, however, has the authority under the United
States Sentencing Guidelines, specifically U.S.S.G. §
5G1.3(b)(1), to fashion a sentence that does account
for time already served on a prior undischarged sentence.
U.S.S.G. § 5G1.3(b)(1) (“If . . . a term of
imprisonment resulted form another offense that is relevant
conduct to the instant offense of conviction [under §
1B1.3(a)] . . . the court shall adjust the sentence for any
period of imprisonment already served on the undischarged
term of imprisonment if the court determines that such period
of imprisonment will not be credited to the federal sentence
by the [BOP] . . . .”).
It
appears that the sentencing court in Mr. Jenkins' federal
case followed U.S.S.G. § 5G1.3(b)(1): Mr. Jenkins was
taken into state custody on December 23, 2012, and sentenced
in Texas state court to ten years in prison on October 1,
2013 (Dkt. No. 8-1, at 2); on February 17, 2015, Mr. Jenkins
was borrowed from state custody into federal custody
(Id., at 3); and on May 29, 2015, Mr. Jenkins
received an 80-month federal sentence that was to run
concurrently with the Texas state court sentence, with
“[t]ime to be credited from date of arrest for this
offense, December 23, 2012.” (Id., 3, 21). On
June 2, 2015, the federal sentencing court entered an amended
judgment indicating that:
It is the Court's intent that the defendant shall receive
credit for all time continuously spent in custody, state or
federal, from December 23, 2012. Therefore, the Bureau of
Prison shall adjust the defendant's term of imprisonment
by the amount of time spent in custody pursuant to §
5G1.3(b) of the sentencing guidelines.
(Id., at 29). The BOP then reduced Mr. Jenkins'
federal sentence to a term of 50 months and 28 days
(Id., at 3, 37). Mr. Jenkins was returned to state
custody, and he was paroled from state prison on February 17,
2017, with credit for all of the time he spent in custody
from the date he was arrested, December 23, 2012, until the
date of his parole (Id., at 4).
In his
objection, Mr. Jenkins argues that his sentence should
“reflect an 80 month sentence and 887 days jail
credit” rather than 50 months and 28 days (Dkt. No. 11,
at 1-2). The Court disagrees. Per 18 U.S.C. § 3585(b),
the BOP cannot give credit for time served in custody that
has “been credited against another sentence.”
Rather, per U.S.S.G. § 5G1.3(b)(1), the sentencing court
may adjust the sentence to account for time already served on
a prior undischarged sentence. That is what the sentencing
court did in this matter: the sentencing court entered an
amended judgment stating that it was the court's intent
to give Mr. Jenkins “credit for all time continuously
spent in custody, state or federal, from December 23,
2012.” (Dkt. No. 8-1, at 29). The BOP reduced Mr.
Jenkins' 80 month sentence to 50 months and 28 days, a
reduction of 887 days, which corresponds to the amount of
time Mr. Jenkins spent in custody between December 23, 2012,
when he was arrested by state authorities, and May 28, 2015,
the day he was sentenced in federal court (Id., at
3-4, 37). The Court therefore concludes that the BOP
correctly calculated Mr. Jenkins' sentence.
II.
Good Time Conduct Credit Calculation
In his
objection, Mr. Jenkins argues that, based upon his current
sentence of 50 months and 28 days, he “is only earning
199” days of good time credit, which is “far from
the 313 GCT credit Jenkins is supposed to earn had the
Regional office correctly computed his sentence to begin
December 23, 2012, 80 month imprisonment term.” (Dkt.
No. 11, at 3). Accordingly, Mr. Jenkins requests a nunc
pro tunc Order designating his time in state custody
from December 23, 2012, “as a place of federal
confinement on his federal sentence and to run [his] federal
sentence concurrent to [his] state sentence . . . .”
(Dkt. No. 11, at 2).
Again,
the Court disagrees with Mr. Jenkins and finds that the BOP
did not err in its calculation of Mr. Jenkins' good time
conduct (“GTC”) credit. Pursuant to 18 U.S.C.
§ 3624(b), “a prisoner who is serving a term of
imprisonment of more than one year may receive credit toward
the service of the prisoner's sentence, beyond the time
served, up to 54 days at the end of the first year of the
term, subject to determination by the Bureau of Prisons that,
during that year, the prisoner has displayed exemplary
compliance with institutional disciplinary
regulations.” Furthermore, the statute directs BOP to
grant GCT credit at “the end of each year of the
prisoner's term of imprisonment, beginning at the end of
the first year of the term . . . .” 18 U.S.C. §
3624(b)(1). The BOP's position is that “the
earliest possible date a sentence can commence is on the date
of imposition. As a result, [Mr. Jenkins'] sentence
commenced on May 29, 2015, the date he was sentence[d] in the
Western District of Texas.” (Dkt. No. 8-1, at 4).
The
question before the Court is whether the BOP is entitled to
deference regarding its determination that a concurrent
federal sentence commences on the date of federal sentencing
for an inmate who is already serving state time on a related
matter. The Court notes that the Second and Ninth Circuit
Courts of Appeals have concluded that the BOP's decision
to calculate good conduct time credits beginning on the date
of federal sentencing is entitled to deference.
Schleining v. Thomas, 642 F.3d 1242 (9th Cir. 2011)
(“[A] prisons can receive GTC credit only on time
served on his federal sentence, and his federal sentence does
not ‘commence' until after he has been sentenced in
federal court . . . .”); Lopez v. Terrell, 654
F.3d 176, 185 (2d Cir. 2011) (noting that “the
BOP's construction of 18 U.S.C. § 3624(b) [is]
persuasive”). The Eighth Circuit Court of Appeals has
not ruled on this issue, but the Court agrees with the
reasoning described in Schleining and
Lopez. Accordingly, the Court concludes that the BOP
did not err in determining that Mr. Jenkins is not eligible
for GTC credit for the time he spent in state custody prior
to the imposition of his federal sentence.
III.
Certificate Of Appealability
The
Court denies Mr. Jenkins a certificate of appealability
because Mr. Jenkins has not made a substantial showing of a
denial of a constitutional right. See 28 U.S.C.
§ 2253(c); Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (determining that a substantial showing of the
denial of a federal right requires a demonstration that
reasonable jurists could debate whether, or for that matter
agree that, the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further). As discussed
above, the BOP's calculation of Mr. Jenkins sentence
accords with federal sentencing guidelines, and the BOP's
method of calculating GTC credits in ...