Submitted: September 26, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
Erickson, Circuit Judge
March 16, 2016, Christopher Lee, who was on supervised
release for a 2006 conviction for bank fraud, was charged
with new counts of bank fraud and aggravated identity theft.
The judge assigned to the revocation proceedings
("revocation judge") indicated the revocation
sentence should run concurrent to any sentence imposed on the
new charges. The judge assigned to the case pertaining to the
new charges ("sentencing judge") ordered the
sentences to run consecutive.
filed a 28 U.S.C. § 2241 habeas petition seeking a
declaration from the revocation judge that the sentences must
run concurrently. Because there was no federal subject-matter
jurisdiction to decide Lee's § 2241 petition, we
vacate the order on appeal and dismiss.
Lee pled guilty to several counts of bank fraud and
aggravated identity theft in 2006. Lee was sentenced to 118
months' imprisonment to be followed by 5 years of
supervised release. During his period of supervised release,
in 2016, Lee admitted to new counts of bank fraud and
aggravated identity theft.
term of supervised release was revoked, and he was sentenced
to 35 months' imprisonment. The revocation judge stated
that this sentence "shall run concurrently to the
sentence imposed [for the new counts]." But after Lee
pled guilty to the new charges, the sentencing judge imposed
a term of 57 months' imprisonment to "run
consecutive to the sentence imposed [in the revocation
proceeding]." Confronted with these facially
inconsistent orders the Bureau of Prisons ("BoP")
calculated the sentences consecutively, requiring Lee to
serve 92 months in custody rather than 57 months.
initially filed a petition under 28 U.S.C. § 2255 in the
revocation case, seeking as relief that the sentence be
vacated and then reimposed so that it would be the
later-imposed sentence and therefore, presumably, require the
BoP to execute the sentences concurrently. The judge
dismissed the petition without prejudice because it was not
filed on the appropriate form. Rather than refile on the
approved form, Lee took his grievance to the BoP, where he
argued that the BoP had erred when it calculated his time to
run consecutively. Lee pursued this claim though the entire
administrative process only to be told at every stage that
the 92 months had been properly calculated.
failed in his endeavor to persuade the BoP, Lee filed a 28
U.S.C. § 2241 petition in the United States District
Court for the Western District of Missouri, where he was
incarcerated, rather than in the Eastern District of Missouri
where both the sentences had been imposed. The Western
District converted his § 2241 petition into one under
§ 2255 and then transferred the action to the Eastern
District, where it was assigned to the revocation judge.
first order by the revocation judge denied Lee's request
to send the case back to the Western District, but granted
his request that his petition be considered pursuant to
§ 2241. In the second order, the revocation judge denied
the petition, reasoning that the BoP's interpretation of
the sentences was reasonable. Lee appeals.
issue of whether one federal sentence may be ordered to be
consecutive or concurrent to an anticipated federal sentence
was raised in a recent Eighth Circuit case, but was
unnecessary to its disposition and so left unresolved.
United States v. Watson, 883 F.3d 1033, 1037 (8th