Dean Viprino v. Warden Lewisburg USP

CLD-117 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-3197
___________
DEAN VIPRINO,
Appellant
v.
WARDEN LEWISBURG USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 1:21-cv-02014)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 30, 2023
Before: GREENAWAY, Jr., MATEY, and FREEMAN, Circuit Judges
(Opinion filed: June 9, 2023)
__________
OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Dean Viprino is a federal inmate serving a term of imprisonment (the federal
sentence) following his plea of guilty in the United States District Court for the District
of Massachusetts to one count of violating 21 U.S.C. § 846. The federal sentence was
ordered to run concurrent with state sentences Viprino was then serving, pursuant to
separate convictions. The federal sentence is currently set to expire on April 10, 2024.
Viprino initiated this pro se habeas proceeding, under 28 U.S.C. § 2241, in the
United States District Court for the Middle District of Pennsylvania. Viprino at the time
was incarcerated at USP-Lewisburg in Pennsylvania, so his habeas petition named that
institution’s warden (the Government) as the respondent. See 28 U.S.C. § 2242.
In his petition, Viprino demanded earlier release based on his detention in state-
and county-run facilities between February 1, 2018 and March 5, 2019, when the federal
sentence was imposed. The Government responded that Viprino had already been given
credit, towards his state sentence, for the custody in question. Double credit, it noted, was
proscribed by 18 U.S.C. § 3585(b).
The District Court denied Viprino’s petition without holding an evidentiary
hearing. In addition to relying on § 3585(b), the District Court observed that Viprino’s
request for credit was inconsistent with “the sentencing court’s statement that Viprino’s
sentence was ‘to begin immediately and run concurrently with the remainder’ of his state
court sentences.” DC Op. at 7 (citation omitted). The District Court declined to consider
2
Viprino’s alternative argument that his § 846 conviction should be vacated, based on a
purported plea defect, because “[c]laims seeking to rescind a guilty plea are properly
brought through motions pursuant to [28 U.S.C. § 2255] rather than Section 2241 habeas
corpus petitions.” Id. Finally, the District Court rejected on exhaustion grounds Viprino’s
argument that he is entitled to sentencing credit under the First Step Act of 2018.
Viprino appealed.1 We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).2
Our review is plenary. See Cordaro v. United States, 933 F.3d 232, 241 (3d Cir. 2019).
Before any briefs were due, the Government moved for summary affirmance. That
motion is granted because Viprino’s habeas petition inarguably was properly denied, for
substantially the reasons given in the District Court’s memorandum opinion. See 18
U.S.C. § 3585(b) (detailing scenarios in which “[a] defendant shall be given credit toward
the service of a term of imprisonment” for prior custody, each conditioned on the fact that
the prior custody “has not been credited against another sentence”); see also Blood v.
Bledsoe, 648 F.3d 203, 209 (3d Cir. 2011) (per curiam) (recognizing that Ҥ 3585(b)
prohibits double crediting”). Consequently, we will affirm the judgment of the District
Court. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir. I.O.P. 10.6 (2018).
1
During this appeal, Viprino was relocated to a Residential Reentry Management facility
in New York City. A transfer of custody typically requires a substitution of the named
respondent. Cf. Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004).
2
Viprino does not need a certificate of appealability to proceed. See Reese v. Warden
Phila. FDC, 904 F.3d 244, 246 (3d Cir. 2018).
3