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Powell v. Lariva

United States District Court, D. Minnesota

April 13, 2018

TYRONE E. POWELL II, Petitioner,
v.
L. LARIVA, WARDEN, Respondent.

          Tyrone E. Powell II, 07428-041, 825 N. Christiana, Chicago, Illinois 60651, pro se petitioner.

          Bahram Samie, Assistant U.S. Attorney, 600 U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415, for respondent.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Tyrone Powell II (“Powell”) challenges the computation of his sentence by the Federal Bureau of Prisons (“BOP”). Powell asks the Court to order the BOP to apply a credit of 25 months and 18 days against his sentence which he contends was the intent of the sentencing judge. The Court concludes that the sentence was computed correctly and therefore denies Powell's petition.

         DISCUSSION

         The remedy to challenge the BOP's computation of a federal sentence is a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002). The petition is properly filed in the district court in the jurisdiction in which the petitioner is incarcerated. Id. At the time he filed this petition, Powell was incarcerated at the Federal Medical Center in Rochester, Minnesota. Petition ¶ 2, Docket No. 1. He later was moved to a halfway house in Chicago, Illinois. Powell Letter, Docket No. 12. The parties agree that Powell has exhausted his administrative remedies. Petition ¶¶ 7-9, Docket No. 1; Gov't Br. 5, Docket No. 7.

         1. FACTS

         On February 18, 1997, Powell was sentenced in the District of Minnesota to 87 months imprisonment for conspiracy to distribute and to possess with intent to distribute cocaine (Sentence 1). Kelly Decl. Ex. C (judgment in D. Minn. Criminal No. 4-96-103), Docket No. 8-1. On April 1, 1999 Powell was sentenced in the Northern District of Illinois to 336 months for conspiracy to possess with intent to deliver a controlled substance (Sentence 2), to run concurrently with his undischarged 87-month Sentence 1. Id. Ex. B (judgment in N.D.Ill. Criminal No. 95-cr-72-1). On January 30, 2008 Sentence 2 was reduced to 276 months. Id. Ex. E (docket entry order in N.D.Ill. Criminal No. 95-cr-72-1). The BOP applied prior custody credit of 210 days against each sentence. Id. ¶¶ 18A & B and Ex. A (“jail credit” line item of BOP computer printout), Docket Nos. 8, 8-1. Powell has finished serving Sentence 1, which was discharged on November 25, 2002 after application of good conduct time. Id. ¶ 18A and Ex. A. Powell's projected release date from Sentence 2, applying good conduct time, is September 16, 2018. Id. ¶¶ 18B & 19 and Ex. A.

         2. ANALYSIS

         Powell argues that Sentence 2 should be “fully concurrent” with Sentence 1, in other words, should be deemed to have commenced on February 18, 1997 - the commencement date of Sentence 1 - rather than on April 1, 1999, the date that Sentence 2 was actually imposed by the sentencing court. Powell therefore asserts that the time period from February 18, 1997 through March 31, 1999 should be credited against his 276-month Sentence 2, and he asks the Court to “correct the originally entered sentencing order by reducing petitioner's sentence 25 months and 18 days.” Powell Br. 3, Docket No. 2. Powell contends that the sentencing judge did not follow the proper procedure under U.S. Sentencing Guidelines § 5G1.3 to accomplish the intent to make Sentence 2 concurrent with Sentence 1. Id. at 1, 3. He states that the plea agreement should be enforced and interpreted to mean that Sentence 2 is fully concurrent with Sentence 1. Powell Reply Br. 2-3, Docket No. 10. He also argues that the BOP misinterpreted the judge's sentencing order for Sentence 2 when it calculated his sentence. Petition ¶ 8-9, Docket No. 1. Powell's petition and reply brief raise issues regarding what “concurrent” means, the sentencing judge's intent, the BOP's calculation of Sentence 2, and the scope of the issues that are properly before the Court in this § 2241 habeas petition.

         A. U.S. Sentencing Guidelines § 5G1.3

         Powell invokes U.S.S.G. § 5G1.3 to support his argument that he is entitled to receive credit against Sentence 2 for the approximately 25 months (from February 18, 1997 to April 1, 1999) he had already served on Sentence 1. A sentencing court has the authority under § 5G1.3 in certain circumstances to adjust the federal sentence being imposed to account for time served on another undischarged term of imprisonment, and to determine whether the sentence is to be served concurrently or consecutively. Powell points to the paragraph in his plea agreement in which the government and Powell acknowledge the sentencing court's authority to choose a concurrent, partially concurrent, or consecutive sentence under § 5G1.3(c) and “the parties agree to recommend to the court that the sentence for the instant offense should be imposed to run concurrently to [Powell's] undischarged term of imprisonment.” Powell Br. 2 and Appendix B (Plea Agreement 9, para. (i)), Docket No. 2. Powell contends that the sentencing judge and/or the BOP failed to achieve the intended “fully concurrent” sentence. Id. at 1-3.

         First, a request that a sentence be reduced based on § 5G1.3 is a challenge to the sentence itself, not the BOP's computation of it. This challenge to the sentence must be brought under 28 U.S.C. § 2255 in the district of the sentencing court, not in a § 2241 habeas petition. See Matheny, 307 F.3d at 711 (challenge to validity of sentence itself must be brought under § 2255 in district of the sentencing court); Noble v. Fondren, Civil No. 08-6259, 2009 WL 4723357, at *7 (D. Minn. Dec. 2, 2009) (an argument that a sentencing court intended to, or ...


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