Lindell Brown v. Craig Apker , 655 F. App'x 571 ( 2016 )

FILED
NOT FOR PUBLICATION
JUL 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDELL BROWN, No. 13-17357
Petitioner - Appellant, D.C. No. 4:12-cv-00763-DTF
v.
MEMORANDUM*
CRAIG APKER,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
D. Thomas Ferraro, Magistrate Judge, Presiding
Submitted July 7, 2016**
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges and ANELLO,*** District Judge.
Federal inmate Lindell Brown appeals the district court’s denial of his 28 U.S.C.
§ 2241 habeas petition, which challenges the calculation of his sentence. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Schleining v. Thomas,
642 F.3d 1242, 1246 (9th Cir. 2011).
Brown is not entitled to credit toward his federal sentence for time served in state
custody prior to the imposition of his federal sentence. The federal court imposed the
sentence on November 14, 2008, to be served concurrently with the previously imposed
state sentence, and the Bureau of Prisons designated the state facility for service of the
federal sentence under 18 U.S.C. § 3621(b) nunc pro tunc to that date. Therefore, the
sentence commenced on November 14, 2008 (while Brown was still serving time in a
Michigan state prison) and could not be backdated prior to its commencement. See 18
U.S.C. § 3585(a); Schleining, 642 F.3d at 1247-48. Moreover, pursuant to 18 U.S.C. §
3585(b)1, because the time Brown spent in custody before his federal sentence was
1
Section 3585(b) provides:
(b) Credit for prior custody.--A defendant shall be given credit
toward the service of a term of imprisonment for any time he has
spent in official detention prior to the date the sentence
commences–
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the sentence
was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b) (emphasis added).
2
imposed was credited to the state sentence, he is not entitled to any additional credit.
See United States v. Wilson, 503 U.S. 329, 337 (1992).
Nor was the Bureau of Prisons required to contact the sentencing judge to
calculate credit. The Bureau of Prisons has the exclusive authority to award credit, and
it is not bound by the sentencing judge’s recommendation. Id. at 333-34; United States
v. Peters, 470 F.3d 907, 909 (9th Cir. 2006) (per curiam).
Finally, the record does not support Brown’s claim that the sentencing court
adjusted his sentence pursuant to Sentencing Guideline § 5G1.3. United States
Sentencing Commission, Guidelines Manual, § 5G1.3 (Nov. 2008). In Brown’s direct
appeal, the Sixth Circuit held that Brown was ineligible for an adjustment under §
5G1.3(b), United States v. Brown, 417 Fed. Appx. 488, 493-94 (6th Cir. 2011), and there
is no evidence in the record that the sentencing court concluded that Brown’s case was
“an extraordinary case” that would warrant a downward departure under § 5G1.3(c). Id.
§ 5G1.3 cmt. n. 3(E).
AFFIRMED.
3