Michael Fegans v. United States ( 2007 )


Menu:
  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-2920
    ___________
    Michael J. Fegans,                       *
    *
    Plaintiff - Appellant,             *
    * Appeal from the United States
    v.                                 * District Court for the
    * Eastern District of Arkansas.
    United States of America, et al.,        *
    *
    Defendants - Appellees.            *
    ___________
    Submitted: June 13, 2007
    Filed: November 8, 2007
    ___________
    Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
    ___________
    LOKEN, Chief Judge.
    In 1991, Michael Fegans pleaded guilty to bank robbery in the United States
    District Court for the Western District of Arkansas while unrelated charges were
    pending in state court. The district court sentenced him to 125 months in prison.
    Federal authorities returned Fegans to state custody, the state court convicted and
    sentenced him to eighteen years in prison, and he began to serve that sentence. In
    2000, while still in state custody, Fegans submitted a letter request asking the United
    States Bureau of Prisons (“BOP”) for a nunc pro tunc designation of the state prison
    as the place to serve his federal sentence. The BOP denied the request. In an affidavit
    submitted some years later, the Regional Inmate Systems Administrator explained that
    the agency found no evidence the federal court intended concurrent sentences and
    concluded that concurrent sentences would not be “in the interest of the criminal
    justice system.”
    Turning to the courts for relief, Fegans first sought a writ of error coram nobis
    in the Western District of Arkansas, asserting that he was assured by his attorney and
    by the federal prosecutor before pleading guilty that his federal and state sentences
    would be concurrent, and seeking to enforce the benefit of that bargain. The district
    court held an evidentiary hearing, found no evidence of such a bargain, and denied the
    writ. We affirmed but remanded to enable Fegans to seek other relief. On remand,
    Fegans filed a motion for relief under 28 U.S.C. § 2255, asserting ineffective
    assistance of counsel, and a petition for a writ of habeas corpus under 28 U.S.C.
    § 2241, seeking to overturn the BOP's adverse decision.1 The Western District denied
    the § 2255 motion and transferred the § 2241 petition to the Eastern District of
    Arkansas, where Fegans was in state custody. The Eastern District2 denied the
    petition. Fegans appeals. We affirm.
    Fegans seeks judicial review of a BOP designation of the place where he will
    serve a federal prison sentence. When a federal court imposes a prison sentence,
    Congress has authorized the BOP to designate “any available penal or correctional
    facility that meets minimum standards of health and habitability . . . whether
    maintained by the Federal Government or otherwise.” 18 U.S.C. § 3621(b). This
    statute “provides the BOP with broad discretion to choose the location of an inmate’s
    1
    Habeas corpus is the proper judicial procedure for reviewing this BOP
    decision, as Congress has declared the Administrative Procedure Act inapplicable.
    See 18 U.S.C. § 3625.
    2
    The HONORABLE SUSAN WEBBER WRIGHT, United States District Judge
    for the Eastern District of Arkansas, adopting the report and recommendation of the
    HONORABLE J. THOMAS RAY, United States Magistrate Judge for the Eastern
    District of Arkansas.
    -2-
    imprisonment,” so long as the factors enumerated in the statute are considered. Fults
    v. Sanders, 
    442 F.3d 1088
    , 1090-91 (8th Cir. 2006). A federal sentence “commences
    on the date the defendant is received in custody [at] the official detention facility”
    designated by the BOP. 18 U.S.C. § 3585(a). Thus, when a federal defendant is
    already serving a state sentence, BOP has the practical power to “make the federal
    sentence run concurrently by designating the state prison as a place of federal
    confinement, so that the clock would start to tick on the federal sentence.” Romandine
    v. United States, 
    206 F.3d 731
    , 738 (7th Cir. 2000).
    Before 1984, many cases held that federal courts could not order federal
    sentences concurrent with state sentences, because that power would conflict with the
    Attorney General's authority. See United States v. Janiec, 
    505 F.2d 983
    , 986-87 (3d
    Cir. 1974), citing Hash v. Henderson, 
    385 F.2d 475
    (8th Cir. 1967), and other cases.
    The landscape changed in 1984 with the enactment of 18 U.S.C. § 3584(a). When a
    federal defendant is “already subject” to “an undischarged term of imprisonment,” that
    statute expressly authorizes the district court to make the federal sentence run
    “concurrently or consecutively” with the undischarged term. See also U.S.S.G.
    § 5G1.3; United States v. Shafer, 
    438 F.3d 1225
    , 1227 (8th Cir. 2006).
    However, Congress in § 3584(a) did not expressly address whether federal
    courts may decide to order a federal sentence to be served concurrent to or
    consecutive with a state prison sentence that has not yet been imposed. This issue
    arises when, as in this case, the State has initial custody and “loans” the defendant to
    federal authorities for federal prosecution.3 After a federal conviction and sentencing,
    the U.S. Marshals Service returns the defendant to state authorities rather than
    delivering him to the BOP to begin serving his federal sentence. When the defendant
    is convicted in state court and begins serving his state sentence, a federal detainer is
    3
    Procedurally, that was accomplished in this case by the federal court issuing
    a writ of habeas corpus ad prosequendum to Fegans's state custodian directing that he
    be transferred to federal custody until federal court proceedings were concluded.
    -3-
    lodged based upon the unserved federal sentence. When the state sentence has been
    served, the detainer is executed and the defendant is delivered to the BOP to serve his
    federal sentence. The issue is compounded when, again as in this case, the state court
    initially declares that the sentences should be concurrent. It is well-settled that the
    state court's intent is not binding, so the state court's action raises the defendant's
    expectations but does not resolve the issue. See Hendrix v. Norris, 
    81 F.3d 805
    , 807
    (8th Cir. 1996); Abdul-Malik v. Hawk-Sawyer, 
    403 F.3d 72
    , 75 (2d Cir. 2005).
    The circuits are divided over whether 18 U.S.C. § 3584(a) implicitly authorizes
    a federal court to declare a federal sentence concurrent to a state sentence not yet
    imposed. See 
    Abdul-Malik, 403 F.3d at 74-75
    . Our court has held that a consecutive
    sentence may be imposed, consistent with the presumption in the last sentence of
    § 3584(a).4 United States v. Mayotte, 
    249 F.3d 797
    , 799 (8th Cir. 2001). However,
    even if federal courts have that power, “the Sentencing Reform Act of 1984
    dramatically curtails a district judge's power to revise a sentence after its imposition,”
    which is when the power could be more prudently exercised because the anticipated
    state court sentence has been imposed. 
    Romandine, 206 F.2d at 734-35
    . Thus, in
    most cases in which this issue has arisen, the district court's intent regarding the
    concurrency issue is not clearly discernable from the federal sentencing record.
    The BOP has acted to fill this void, largely as a result of a Third Circuit
    command that the BOP exercise authority “to determine concurrency” through a nunc
    pro tunc designation of the state prison as the place of federal confinement when the
    federal district court lacks power to do so. Barden v. Keohane, 
    921 F.3d 476
    , 483-84
    (3d Cir. 1990). Other circuits have approved or at least acknowledged this exercise
    4
    “Multiple terms of imprisonment imposed at different times run consecutively
    unless the court orders that the terms are to run concurrently.” Other circuits differ
    as to whether this language applies to another sentence not yet imposed when the
    federal sentence is imposed. Compare 
    Romandine, 206 F.3d at 738
    , with McCarthy
    v. Doe, 
    146 F.3d 118
    , 122 (2d Cir. 1998).
    -4-
    of BOP authority. See Taylor v. Sawyer, 
    284 F.3d 1143
    , 1149 (9th Cir. 2002), cert.
    denied, 
    537 U.S. 1119
    (2003); 
    Romandine, 206 F.3d at 738
    ; 
    McCarthy, 146 F.3d at 122
    . Though we agree with the Second Circuit that Congress should examine the
    issue because it implicates important federalism and separation of powers concerns,
    
    Abdul-Malik, 403 F.3d at 76
    , we assume -- as the parties have assumed -- that the
    BOP has statutory authority to make nunc pro tunc designations that have the effect
    of making a federal sentence concurrent to a later-imposed state sentence.
    To guide its exercise of this discretion, the BOP promulgated Program
    Statement 5160.03 in September 1994, which it applied in denying Fegans's request
    in 2000.5 Consistent with Barden v. Keohane, paragraph 7(d) authorized BOP
    Regional Directors to act on an inmate's request for nunc pro tunc designation of a
    state institution as the place to serve his federal sentence. Paragraph 6 declared that
    such a designation “shall be made only when it is consistent with the intent of the
    sentencing Federal court, or with the goals of the criminal justice system.” The
    Statement further declared that BOP would not allow a concurrent sentence if the
    federal sentencing court had already made a contrary determination. Absent such a
    determination, if the regional BOP officials decide that concurrent service “may be
    appropriate,” they must ask the federal sentencing court if it has any objections.
    In this case, Fegans concedes that the sentencing order was silent on the
    question whether his federal bank robbery sentence should be concurrent with any
    sentence the state court might impose in the pending proceedings. But he takes issue
    with the BOP's interpretation of the transcript of his sentencing proceeding. The
    district judge (who is now deceased) denied Fegans a two-level reduction for
    acceptance of responsibility under the Sentencing Guidelines because Fegans only
    5
    The current Program Statement, PS 5160.05, entitled Designation of State
    Institution for Service of Federal Sentence, was promulgated in January 2003. The
    provisions of the later Statement are more detailed and explicit, but we discern no
    substantive differences that are significant to this appeal.
    -5-
    pleaded guilty “to get the state charges dropped or run concurrent.” Fegans argues
    this was “an implicit finding of fact establishing the existence of an agreement in State
    Court to sentence concurrently,” thus placing him in the same posture as the defendant
    in Hendrix v. 
    Norris, 81 F.3d at 808
    , where we remanded because “the intent of the
    federal sentencing court is uncertain.”
    This contention is fatally flawed because it ignores the limited scope of our
    review. The BOP responded to Fegans's request for a nunc pro tunc designation by
    contacting the United States Probation Office for the Western District of Arkansas and
    reviewing the sentencing transcript. Based upon this inquiry, the BOP found no
    evidence that the federal sentencing judge intended the sentences to be concurrent.
    This agency finding is entitled to substantial deference, more than either district court
    afforded it. See 
    Taylor, 284 F.3d at 1149
    . But in any event, both courts conducted
    an essentially de novo review and agreed with the BOP's finding. In denying coram
    nobis relief, the Western District found after an evidentiary hearing that Fegans's
    federal sentence was imposed with “absolutely no reference” to an understanding that
    it would be concurrent with any state sentence later imposed. In denying habeas
    relief, the Eastern District concluded in a thorough opinion that “the BOP had no facts
    in the record from which it could reasonably determine any expression of intent by
    [the sentencing judge] that Petitioner's federal sentence should run concurrent with
    any yet-to-be-imposed state sentence.” Thus, the BOP finding must be upheld.
    Having found no evidence the federal court intended concurrent sentences, the
    BOP turned to the other factor to be considered under Program Statement 5160.03,
    “the goals of the criminal justice system.” The agency reviewed Fegans's “extensive
    and serious criminal history,” including an attempted escape in 1991 that resulted in
    an additional eight-year consecutive state sentence, and concluded “it was not in the
    interest of the criminal justice system to grant . . . a nunc pro tunc designation.” We
    review this BOP decision for abuse of the agency's substantial discretion under 18
    U.S.C. § 3621. Grove v. Fed. Bureau of Prisons, 
    245 F.3d 743
    , 746-47 (8th Cir.
    -6-
    2001); see 
    Taylor, 284 F.3d at 1149
    ; 
    McCarthy, 146 F.3d at 123
    . Here, the BOP
    carefully considered the relevant factors and acted in accordance with the Program
    Statement. Its decision must be upheld.
    Finally, Fegans urges us to remand to the district court for further consideration
    of whether he should be permitted to reopen his motion seeking relief under 28 U.S.C.
    § 2255 for ineffective assistance of counsel. We decline to do so. That relief must be
    sought in “the court which imposed the sentence,” here, the Western District of
    Arkansas. Earlier this year, Fegans filed a § 2255 motion in the Western District of
    Arkansas, which remains pending. United States v. Michael Jerome Fegans, Crim.
    No. 6:91CR60022-001, Civ. No. 07-6027 (W.D. Ark. filed Apr. 30, 2007).
    The judgment of the district court is affirmed.
    ______________________________
    -7-