Fairly Earls v. BOP ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 15, 2022 *
Decided September 20, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-2023
Appeal from the United States
FAIRLY W. EARLS,
District Court for the Western
Petitioner-Appellant,
District of Wisconsin.
v.
No. 21-cv-377-wmc
FEDERAL BUREAU OF PRISONS,
Respondent-Appellee. William M. Conley,
Judge.
ORDER
Fairly Earls is serving a 30-year sentence imposed by Wisconsin’s state judiciary.
He also has a 5-year federal sentence, and the Bureau of Prisons has lodged a detainer
with state officials. Earls wants the Bureau to rescind that detainer. He believes that his
state and federal sentences run concurrently, so that, by the time his Wisconsin sentence
ends, his federal sentence also will be over. The Bureau rejected that argument. Earls
* The appellee was not served with process and has not participated in this appeal, which we resolve
without argument because appellant’s brief and the record adequately present the matter. See Fed. R. App.
P. 34(a); Cir. R. 34(f).
No. 22-2023 Page 2
sought review by a petition under 28 U.S.C. §2241, and the district court, too, rejected
his contention. 2022 U.S. Dist. LEXIS 98451 (W.D. Wis. June 2, 2022).
The federal judgment was imposed in 2011 in the Northern District of Indiana. It
is silent with respect to the choice between concurrent and consecutive service. Earls
did not (then) ask the judge to make an explicit choice, and he did not appeal from the
judge’s failure to do so. In 2015 the Bureau wrote a letter asking Judge Van Bokkelen,
who had imposed the sentence, whether he intended concurrent or consecutive service;
Judge Van Bokkelen replied that the absence of a provision for concurrent service im-
plies consecutive service. He cited 18 U.S.C. §3584 and did not give any weight to his
intent in 2011. We dismissed Earls’s appeal. United States v. Earls, No. 15-3651 (7th Cir.
Apr. 6, 2016) (nonprecedential disposition). Federal judges lose jurisdiction in criminal
cases shortly after imposing sentence (unless a retroactive statute of Sentencing Guide-
line applies) and cannot modify or amplify their judgments by answering letters from
the Bureau of Prisons years after the judgments have become final. See Fed. R. Crim. P.
35. Our 2016 decision observes that a district judge’s response to an administrative in-
quiry is not a judicial order and cannot be appealed. We told Earls that the right way to
obtain review of the Bureau’s decision is to commence a proceeding under §2241.
Earls resisted. He asked the Supreme Court to review our 2016 decision (it de-
clined). He asked us to reopen it (we declined). He filed additional claims of several
kinds. In 2021 he finally sought relief under §2241, only to find that the district judge
treated the sentencing judge’s response to the Bureau’s inquiry as if it amounted to an
amended judgment in the federal criminal case, the very status that our 2016 decision
holds it does not have.
Still, a remand is unnecessary. As Judge Van Bokkelen wrote in 2015, a statute
provides what happens when a federal criminal judgment is silent on the choice be-
tween consecutive and concurrent service. A sentence that does not provide otherwise
runs consecutively to any other sentence imposed at a different time. 18 U.S.C. §3584(a).
The federal and state sentences were imposed at different times and so run consecu-
tively, just as the Bureau has concluded. Earls is not entitled to relief under §2241.
AFFIRMED