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United States v. Alvin Eiland ( 2017 )


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  •      Case: 12-20710      Document: 00514183554         Page: 1    Date Filed: 10/04/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 12-20710                                FILED
    October 4, 2017
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                         Clerk
    Plaintiff - Appellee
    v.
    ALVIN MARK EILAND,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:09-CR-699-1
    Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Alvin Eiland was indicted on various federal wire fraud and money
    laundering charges, arising out of a fraudulent residential mortgage scheme.
    He pleaded guilty and was sentenced to 48 months’ imprisonment and three
    years of supervised release. Eiland was subsequently sentenced in state court
    to a ten-year sentence on state law charges stemming from the same
    fraudulent activity. The state court ordered that Eiland’s state sentence run
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 12-20710    Document: 00514183554     Page: 2   Date Filed: 10/04/2017
    No. 12-20710
    concurrently with his prior federal sentence. The federal district court’s
    sentence was silent as to whether it was to run concurrently with or
    consecutively to Eiland’s state sentence.
    After he was sentenced in federal court, Eiland sent a letter to the
    Federal Bureau of Prisons (“BOP”), inquiring about “how much credit he had
    on his [f]ederal sentence.” The BOP interpreted Eiland’s letter as a request for
    a retroactive nunc pro tunc designation that his federal sentence run
    concurrently to his state sentence. In accordance with its procedures and
    pursuant to Bearden v. Keohane, 
    921 F.2d 476
    (3rd Cir. 1990), the BOP sent a
    letter to the district court, asking whether the district court had intended
    Eiland’s sentence to run consecutively or concurrently to his state sentence.
    The district court entered an “Order on Sentence,” stating that Eiland’s federal
    sentence was to run consecutively to his state sentence. The BOP informed
    Eiland that his request for nun pro tunc relief was denied. Eiland moved the
    district court to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing in
    part that the district court’s Order on Sentence violated his due process rights.
    The district court denied the motion. Eiland now appeals, arguing that the
    district court’s Order on Sentence modified his sentence without jurisdiction
    and amended its final judgment in violation of his due process rights.
    18 U.S.C. § 3584(a) provides that “[m]ultiple terms of imprisonment
    imposed at different times run consecutively unless the court orders that the
    terms are to run concurrently.” Thus, the “district court must specify in its
    sentencing order that sentences run concurrently; otherwise, they run
    consecutively.” Free v. Miles, 
    333 F.3d 550
    , 553 (5th Cir. 2003). We have
    repeatedly applied the presumption of consecutiveness in circumstances where
    a federal sentence predates a state sentence arising from the same conduct.
    See, e.g., Hunter v. Tamez, 
    622 F.3d 427
    , 431 (5th Cir. 2010) (“[T]he district
    court here offered no opinion as to whether [Defendant’s] sentences should run
    2
    Case: 12-20710      Document: 00514183554     Page: 3   Date Filed: 10/04/2017
    No. 12-20710
    consecutively or concurrently . . . accordingly, his state and federal sentences
    ran consecutively, because the district court did not specify otherwise.”)
    (internal quotations marks and alterations omitted) (quoting 
    Free, 333 F.3d at 553
    ).
    Here, the district court did not specify whether Eiland’s federal sentence
    was to run concurrently or consecutively to his state sentence. Accordingly, the
    presumption of consecutiveness applied to Eiland’s federal sentence at the
    outset. The district court’s Order on Sentence specifying that Eiland’s sentence
    was to run consecutive to his state sentence thus did not constitute a
    modification of his sentence or an amendment of the district court’s final
    judgment.
    Relying on Pierce v. Holder, 
    614 F.3d 158
    , 160 (5th Cir. 2010), Eiland
    argues that a district court may not amend a final judgment in such a way as
    to effectively prohibit the BOP from exercising its discretion to grant nunc pro
    tunc relief. Pierce is inapposite for two reasons. First, as noted above, the
    district court’s Order on Sentence did not amend its final judgment—it simply
    made explicit the implicit statutory presumption of consecutiveness. Second,
    the district court in Pierce ruled on the defendant’s habeas petition before the
    BOP had an opportunity to make its nunc pro tunc determination. See 
    id. Consequently, the
    district court’s actions in Pierce effectively foreclosed any
    opportunity for the BOP to grant relief. Here, by contrast, Eiland filed his
    § 2255 motion after the BOP denied him nunc pro tunc relief. Thus, the district
    court’s denial of Eiland’s motion to vacate had no impact on the BOP’s nunc
    pro tunc determination, which it made at its own discretion.
    The district court’s order is AFFIRMED.
    3
    

Document Info

Docket Number: 12-20710

Judges: Clement, Prado, Haynes

Filed Date: 10/4/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024