United States v. Montroy, James I. , 207 F. App'x 710 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2006
Decided December 8, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1920
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 05-CR-177-S-01
JAMES I. MONTROY,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
James Montroy pleaded guilty to interstate transportation of stolen securities
in violation of 18 U.S.C. § 2314, and the district court sentenced him to 13 months
to run consecutive to his undischarged state terms of imprisonment. The court also
sentenced him to three years of supervised release and ordered him to pay $26,491
in restitution. Montroy filed a notice of appeal, but his appointed counsel now seeks
to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable
to discern a nonfrivolous issue to pursue. Counsel’s supporting brief is facially
adequate, and Montroy has responded to our invitation under Circuit Rule 51(b) to
comment on counsel’s submission. Thus we limit our review to those potential
No. 06-1920 Page 2
issues identified in counsel’s brief and Montroy’s Rule 51(b) response. See United
States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002).
Montroy broke into his father-in-law’s insurance agency in Wisconsin and
stole several blank business checks that he forged and deposited into his bank
account in Michigan. He was convicted of burglary in Wisconsin and sentenced to
six years in prison. While serving time on the burglary offense (and on another
state conviction for possession with intent to deliver cocaine), he was charged in
federal court in Wisconsin with transporting the stolen checks, totaling $20,636,
from state to state. See 18 U.S.C. § 2314. Montroy was handed over to federal
authorities pursuant to a writ of habeas corpus ad prosequendum. He pleaded
guilty to the § 2314 charge, and further stipulated in his plea agreement that he
also defrauded at least 21 people of $500 apiece in an internet scam. The district
court calculated a guidelines imprisonment range of 30 to 37 months based on a
total offense level of 12 and a criminal history category of VI. The court then
considered the factors enumerated in 18 U.S.C. § 3553(a), and concluded that a
sentence at the top of the guidelines range was reasonable, particularly in light of
Montroy’s long and serious criminal history. However, the court reduced both ends
of the imprisonment range by 24 months, explaining that it was accounting for the
time Montroy had served on his state burglary conviction before he was taken into
federal custody. The court, citing U.S.S.G. § 5G1.3, reasoned that such a reduction
was required because the checks Montroy stole during the burglary were the same
checks he transported in interstate commerce. The court then imposed a term of 13
months to run consecutively to Montroy’s undischarged state terms of
imprisonment. After sentencing, Montroy was returned to Wisconsin custody to
serve the remainder of his state sentences.
Counsel initially notes that Montroy does not wish to withdraw his guilty
plea, so counsel appropriately avoids any discussion about the voluntariness of the
plea or the adequacy of the colloquy. See United States v. Knox, 287 F.3d 667, 671-
72 (7th Cir. 2002). Counsel considers only one potential argument, which is also the
principal subject of Montroy’s Rule 51(b) response: whether Montroy is entitled to
credit against his federal sentence for the 76 days he spent in federal custody
awaiting trial even though Wisconsin credited that time against his state sentences.
Such a claim would be frivolous because we would lack jurisdiction to review it.
The Bureau of Prisons, and not the district court, has exclusive authority to
compute credit under 18 U.S.C. § 3585(b), see United States v. Ross, 219 F.3d 592,
594 (7th Cir. 2000); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir. 1995), and
Montroy has not exhausted his administrative remedies by first seeking
administrative review of the computation of his credits, see United States v. Wilson,
503 U.S. 329, 335 (1992); McGee, 60 F.3d at 1272.
No. 06-1920 Page 3
Montroy additionally argues that the court misapplied § 5G1.3 when it failed
to reduce his guidelines imprisonment range by the additional 76 days. But any
such argument would be frivolous because § 5G1.3 did not require the court to
credit any time Montroy served for the burglary offense. Subsection (b) of that
guideline requires that a new sentence run concurrent to an undischarged sentence
only if the undischarged term is “fully taken into account” in calculating the
guidelines range; otherwise, sentencing courts have discretion under subsection (c)
to impose concurrent, partially concurrent, or consecutive sentences. See U.S.S.G.
§ 5G1.3(b),(c); United States v. Johnson, 324 F.3d 875, 878-79 (7th Cir. 2003); Ross,
219 F.3d at 594. Montroy’s state burglary conviction was not taken into account in
calculating his guidelines imprisonment range—it was not considered relevant
conduct in determining his offense level, nor was it counted towards his criminal
history score—so the district court was free to exercise its discretion in fashioning
Montroy’s sentence. Cf., United States v. Gabel, 85 F.3d 1217, 1223 (7th Cir. 1996)
(prior burglaries not relevant conduct to money laundering or illegal structuring
offenses); U.S.S.G. § 3D1.2(d) & cmt. 6 (burglary cannot be grouped with other
property crimes). The 24-month reduction that Montroy received was a boon, and
he cannot complain that the district court did not confer an even greater benefit.
For the above reasons, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.