Carlton Allen v. Warden McKean FCI , 701 F. App'x 80 ( 2017 )

BLD-273 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1540
___________
CARLTON ALLEN,
Appellant
v.
WARDEN MCKEAN FCI
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 1-15-cv-00309)
District Judge: Honorable Barbara Jacobs Rothstein
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 8, 2017
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: July 17, 2017)
_________
OPINION*
_________
PER CURIAM
Carlton Allen appeals pro se from the District Court’s order denying his 28 U.S.C.
§ 2241 petition, in which he argued that his federal sentencing court erred by not ordering
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
his 2009 federal sentence to run concurrently with a state sentence he served prior to his
designation to a Bureau of Prisons (BOP) facility. As the appeal does not present a
substantial question, we will grant the Warden’s motion for summary action.
I.
In September 2008 (at E.D. Pa. Crim. No. 08-0609), a federal grand jury sitting in
the Eastern District of Pennsylvania returned a two-count indictment against Allen,
charging him with possession of crack cocaine (21 U.S.C. § 841(a)(1)), and possession
of a firearm during a drug trafficking crime (18 U.S.C. § 924(c)). At the time of his
federal indictment, Allen was in state custody at Curran-Fromhold Correctional Facility
(CFCF) in Philadelphia, by virtue of two pending cases in Philadelphia County.1 On
November 14, 2008, the United States Marshals Service arrested Allen at CFCF on the
federal charges,2 and Allen remained in federal custody—pursuant to a writ of habeas
corpus ad prosequendum3—until September 23, 2009, when the District Court sentenced
1
In April 2006, state authorities arrested Allen at CP-51-CR-1301123-2006 for drug and
firearm offenses—the same conduct providing the basis for his federal indictment. He
posted bail four days later and was released. In March 2008, the state court granted the
Commonwealth’s motion to revoke Allen’s bail, after he was arrested in early 2008 for
attempted murder and other charges at CP-51-CR-0003815-2008.
2
Shortly after his federal arrest, the Commonwealth nolle prossed the 2006 drug and
firearm charges.
3
“When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum
he is considered to be ‘on loan’ to the federal authorities so that the sending state's
jurisdiction over the accused continues uninterruptedly.” Crawford v. Jackson, 589 F.2d
693, 695 (D.C. Cir. 1978).
2
him to 97 months’ imprisonment.4 A week later, the Marshals Service returned Allen to
state custody, and, on September 10, 2010, the state court sentenced him to five-to-ten
years’ imprisonment at CP-51-CR-0003815-2008, which the court ordered to “run
concurrently with any sentence [Allen] is concurrently serving federally or through the
state.”
Allen was paroled from state custody—and released to federal custody—on
November 13, 2013, and the BOP used that date as the starting date for his federal
sentence. In early October 2014, Allen filed a motion (at E.D. Pa. Crim. No. 08-0609),
requesting a nunc pro tunc designation under Barden v. Keohane, 921 F.2d 476, 483 (3d
Cir. 1990).5 The sentencing court “declin[ed] to make a recommendation to the [BOP],”
and, about a month later, the BOP declined to award Allen a designation after considering
the factors prescribed by 18 U.S.C. § 3621(b). In August 2015, Allen filed another
motion requesting a nunc pro tunc designation, or an order from the sentencing court that
his federal sentence run concurrent to his already-served state sentence. The court denied
this motion in October 2015.
Allen filed this § 2241 petition a few months later, claiming that his federal
sentencing court erred because it “did not specifically reference any of the [18 U.S.C. §]
3553(a) factors with regard to the issue of concurrence.” The District Court denied his
4
The District Court later reduced this sentence to 84 months under Amendment 782 to
the Sentencing Guidelines.
5
In Barden, we held that 18 U.S.C. § 3621(b) grants the BOP discretionary authority to
designate a state institution for service of an inmate’s federal sentence nunc pro tunc. Id.
at 483.
3
petition—largely treating it as a claim of BOP error—concluding that the “BOP cannot
give [Allen] any additional credit under [18 U.S.C.] § 3585(b) for the time he spent in
official detention during the relevant time period because all of that other time was
credited against a state sentence.” Allen timely appealed and the Warden filed a motion
for summary action.
II.
We have jurisdiction under 28 U.S.C. § 1291 and review de novo the District
Court’s denial of Allen’s habeas petition. Ballentine v. United States, 486 F.3d 806, 808
(3d Cir. 2007). We may summarily affirm the District Court when “it clearly appears
that no substantial question is presented or that subsequent precedent or a change in
circumstances warrants such action.” 3d Cir. I.O.P. 10.6 (2015).
Allen presented only one argument in his petition—that the sentencing court erred
by not “specifically referenc[ing] any of the [18 U.S.C. §] 3553(a) factors with regard to
the issue of concurrence.” This argument is without merit. Under 18 U.S.C. § 3584(b), a
federal court making a concurrent-vs.-consecutive sentencing decision ordinarily must
consider “the factors set forth in section 3553(a).” It need not do so, however, when it
sentences a defendant—like Allen—awaiting a yet-to-be-imposed state sentence. Setser
v. United States, 566 U.S. 231, 234-35 (2012). This is so because a federal sentencing
court is obliged to make a concurrent-vs.-consecutive decision in the first instance only
when “multiple terms of imprisonment are imposed . . . at the same time, or if a term of
imprisonment is imposed on a defendant who is already subject to an undischarged term
4
of imprisonment[.]” 18 U.S.C. § 3584(a). Neither of these conditions applied to Allen,
and thus he cannot credibly claim that the District Court erred by failing to consider the
§ 3553(a) factors.6
In his reply to the Government’s response, Allen also challenged the BOP’s
refusal to award him a nunc pro tunc designation,7 arguing as follows:
[T]here is no indication in the record that the []BOP adequately considered,
as required by statute, the section 3553(a) factors in the
consecutive/concurrent aspect of its determination. To satisfy its statutory
obligation under section 3553(a), it needed to explain how the 3553(a)
factors were specifically applied or rejected in its consideration of the
request for a concurrent sentence. In other words, the []BOP should
perform the very same analysis when choosing a concurrent or consecutive
sentence that a court also performs when it decides the appropriate length
[of] a sentence.
Allen is mistaken; the BOP need only consider the five § 3621(b) factors8 in
deciding whether to award a nunc pro tunc designation. Barden, 921 F.2d at 482. The
record reflects that the BOP considered all five factors, and denied Allen’s request based
on the following factors: (2) “the nature and circumstances of the offense”—the BOP
accurately noted that the “Federal and State charges are not related”; (3) Allen’s “history
6
To the extent that Allen argued the sentencing court was obliged to consider the
§ 3553(a) factors when deciding his motions for nunc pro tunc designation, this argument
is also without merit. Section 3584(b) requires a federal court to consider these factors
only when imposing sentence.
7
We review the BOP’s denial of a nunc pro tunc designation for abuse of discretion.
Barden, 921 F.2d at 483.
8
They are: “(1) the resources of the facility contemplated; (2) the nature and
circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any
statement by the court that imposed the sentence . . . (5) any pertinent policy statement
issued by the Sentencing Commission[.]” 18 U.S.C. § 3621(b).
5
and characteristics”—beyond the state and federal convictions at issue here, he had a
prior assault conviction and at least two prior drug convictions; and (4) “any statement by
the court that imposed the sentence”—the BOP sent a letter to Allen’s sentencing judge
inquiring about his position on the issue of concurrency; however, the judge did not
respond to the BOP’s inquiry. The second and third factors clearly weigh against Allen,
and the BOP did not act unreasonably by treating the sentencing judge’s silence as
counseling against concurrency. Cf. 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders that
the terms are to run concurrently.”).
Thus the BOP did not abuse its discretion under § 3621(b) by denying Allen’s
nunc pro tunc request. And because the only other argument Allen presented below—
that the sentencing court failed to specifically reference the § 3553(a) factors in making
its concurrency decision— is meritless, we will grant the Warden’s motion for summary
action, and summarily affirm the judgment of the District Court.9
9
Allen did not challenge, in this federal habeas petition, the BOP’s determination of
when he entered federal custody, and we will not address it here. See United States v.
Dupree, 617 F.3d 724, 727 (3d Cir. 2010) (“[A]rguments not raised in the district courts
are waived on appeal.”).
6