Opinion
C. A. 4:23-1215-DCN-TER
01-16-2024
GREGORY ALLEN BONNIE, Petitioner, v. WARDEN DUNBAR, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
The Petitioner, Gregory Allen Bonnie (“Petitioner”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on March 27, 2023. Counsel filed a notice of appearance on behalf of Petitioner on June 28, 2023. The Respondent filed a motion to dismiss or for summary judgment along with supporting memorandum and exhibits. (ECF No. 20). Petitioner filed a response to the motion through counsel on August 13, 2023. (ECF No. 39). Respondent filed a reply on August 28, 2023. (ECF No. 43).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
STANDARD FOR SUMMARY JUDGMENT
As previously stated, the Respondent filed a motion to dismiss, or for summary judgment. The undersigned will treat this motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden ofproof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4thCir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
Respondent submits that Petitioner has exhausted his administrative remedies with the BOP prior to filing this action.
A. Background
Petitioner is a federal inmate designated by the Bureau of Prisons (BOP) to the Satellite Prison Camp adjacent to FCI Williamsburg in Salters, South Carolina. Petitioner filed this action on March 27, 2023, alleging the BOP is denying him credits he earned under the First Step Act (FSA), 18 U.S.C. §3632(d)(4)(A) for his participation in the EvidenceBased Recidivism Reduction Programming (EBRR programming). (ECF No. 1). Petitioner was sentenced in federal court in South Carolina to two sentences to run consecutively: (1) a 120-month sentence, which consists of concurrent 120-month sentences for convictions under 21 U.S.C. § 846 and 21 U.S.C. § 841; and (2) a 24-month sentence for violating a supervised release term imposed for earlier convictions for 21 U.S.C. § 846 and 18 U.S.C. § 924(c). Based on its interpretation of the relevant statutes, the BOP treats the two sentences as a single aggregate sentence for purposes of time credits under the FSA and, because the §924(c) sentence is ineligible for FSA time credits, it found him ineligible to earn time credits during the term of the aggregate sentence. The Petitioner's projected release date via applied jail credits and Good Conduct Time Release is January 13, 2029. (Respondent's memorandum, ECF No. 20 at 2). As set forth in the response by counsel for Petitioner:
If Mr. Bonnie was serving only the 120-month sentence for the drug offenses, he would be eligible to earn First Step Act time credits (“FSA time credits” or “time credits”) against the sentence because the underlying drug offenses are not ineligible under the FSA. Conversely, for the purpose of this motion, Mr. Bonnie does not dispute that, if he were serving only the 24-month revocation sentence, he would be ineligible to earn time credits against that sentence. That is because § 924(c) is an ineligible offense under the FSA and revocation sentences are attributed to the original conviction.
The dispute is this: Does the 24-month § 924(c) revocation sentence taint the separately imposed 120-month drug sentence such that Mr. Bonnie is ineligible to earn FSA time credits for the entire 144-month sentence?(ECF No. 39 at 8).
B. Arguments
Respondent filed a motion for summary judgment arguing this action should be dismissed because the BOP determines sentence credits and Petitioner's First Step Act(FSA) credit eligibility was properly determined as ineligible due to his § 924(c) conviction. (ECF No. 20). It asserts that the aggregation of sentences is mandatory under 18 U.S.C. § 3584(c),thus an inmate serving a term of imprisonment which includes a sentence for a disqualifying offense, is not eligible for FSA time credits.
18 USC §3584(c) provides:
(c) Treatment of multiple sentence as an aggregate.--Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.
Petitioner argues the BOP incorrectly interprets §3584(c) and improperly aggregates his two sentences. He contends his consecutive sentences should be viewed separately for the purposes of FSA time credits, and he argues he cannot be “serving” a sentence for a longer period than that imposed by the sentencing court. Also, he argues the plain meaning of the FSA is that one should be eligible to earn and apply time credits when not serving a sentence for an ineligible offense.
Petitioner sets forth several arguments in support of his position. Petitioner points to contrasting language used in the FSA's elderly and terminally ill offender ineligibility provisions. Specifically, Petitioner notes the elderly and terminally ill offender statute expressly provides a prisoner is ineligible, even with multiple offenses, so long as any one of the multiple offenses is a crime of violence. (ECF No. 39 at 15). Further, Petitioner argues § 3584(c), which says for administrative purposes, multiple sentences are treated as one, does not mean the prisoner is actually serving a sentence for each offense for the entire aggregate term. (ECF No. 39 at 16). Petitioner asserts § 3584(c) does not provide that multiple sentences will lose their separate character, especially those sentences that are run consecutively. (Id. at 17). If applying § 3584(c) to aggregate the sentence actually meant each individual sentence turns into the aggregate sentence, the result could be serving more time than the statutory max for an individual sentence. Petitioner notes the Parole Commission has aggregated sentences for calculating parole eligibility dates without the aggregation of a parolable and a nonparolable sentence rendering the entire sentence non-parolable, with each sentence maintaining its distinct parole implications. (ECF No. 39 at 18).
B. Analysis
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004); Diaz v. Warden, FCI Edgefield, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). “A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.” Manigault v. Lamanna, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004).
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General. The Attorney General has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. See United States v. Wilson, 503 U.S. 329, 334-35 (1992). Accordingly, the Attorney General, through the BOP, must make the initial determination of sentence credits; a district court does not have the jurisdiction to make an initial determination. See Vazquez v. Knight, 2021 WL 1625002, at *2 (D.S.C. Apr. 27, 2021) citing U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision); Garcia v. Janson, 2023 WL 3855377, at *3 (D.S.C. May 1, 2023), report and recommendation adopted, 2023 WL 3559697 (D.S.C. May 19, 2023).
The FSA governs the calculation of federal prison sentences. Section 102(b) of the FSA amended 18 U.S.C. § 3624(b), allows federal inmates to earn additional good time credits. See P.L. 115-391, § 102(b)(1). The FSA allows eligible inmates who successfully complete evidence-based recidivism reduction programming to earn time credits to be applied toward time in pre-release custody or supervised release. See 18 U.S.C. § 3632(d)(4)(A). A prisoner is ineligible to receive time credits if the prisoner is serving a sentence for a disqualifying offense. See 18 U.S.C. § 3632(d)(4)(D). Relevant here, a “prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction” under “Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C. § 3632(d)(4)(D)(xxii). 18 U.S.C. § 3632(d)(4)(D) describes inmates that are ‘ineligible to receive time credits' under subchapter D (the Risk and Needs Assessment System) if serving a term of imprisonment for conviction under any of the provisions listed therein. It is outside the BOP's authority to alter the exclusions as stated in the FSA .... Statutory exclusions may only be amended by Congress. See Id. at 2713. The BOP codified its procedures at 28 C.F.R. § 523.41(d), which states that “[a]ny inmate sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or any person in the custody of the Bureau, is eligible to earn FSA time credits, subject to the exception described in paragraph (d)(2) of this section.” Section 523.41(d)(2) explains that if the “inmate is serving a term of imprisonment for an offense specified in 18 U.S.C. 3632(d)(4)(D),” which includes sentences imposed under § 924(c), “the inmate is not eligible to earn FSA time credits.” Id., see also § 3632(d)(4)(D)(xxii).
As previously stated, this Petition raises questions as to whether a sentence imposed following the revocation of supervised release for § 924(c) makes an inmate ineligible to earn ETCs, whether inmates are still ineligible to earn ETCs after the disqualifying sentence has been fully served, and relatedly, whether the aggregating of multiple sentences is an appropriate basis for denying an inmate the ability to earn FSA credits.
The Court which revoked Bonnie's term of supervised release and imposed additional prison time indicated that the reinstated sentence was to run consecutively to any sentence then-imposed. 18 U.S.C. § 3584 addresses multiple sentences of imprisonment and specifically provides that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C. §3584(c). When Bonnie's supervised release was revoked and additional incarceration time was imposed, it was related to and stemmed from his underlying conviction, which included a conviction under § 924(c). On that basis, the BOP found him ineligible to earn ETCs under the FSA. Thus, the BOP treated Bonnie's new sentence, and the sentence stemming from the revocation of his supervised release for his § 924(c) conviction, as one aggregate term of imprisonment.
The BOP's interpretation of § 3632(d)(4)(D) appears to be a mandatory interpretation based on the BOP's other statutory obligations. Title 18 U.S.C. § 3584(c) provides that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” Thus, when Petitioner's supervised release was revoked and additional incarceration time was imposed, it was related to and stemmed from his underlying conviction, which included a conviction under § 924(c). Therefore, the BOP found Petitioner ineligible to earn Extra Time Credits under the FSA. A district court addressed this issue in a recent case, Walton v. Fikes, 2023 WL 6283298, at *1-2 (D. Minn. Aug. 10, 2023), report and recommendation adopted sub nom., 2023 WL 6282897 (D. Minn. Sept. 26, 2023), as follows:
Neither party has cited to any cases on point in this circuit. It appears this issue has not been addressed in the 4th Circuit. Further, that the determination of eligibility in this case is an administrative function does not appear to be disputed.
Walton argues that only during the 60-month period when he is serving his sentence for the gun offense should he be excluded from earning time credits under the FSA. In the petition for a writ of habeas corpus now before the Court, Walton requests that the Court direct the BOP to apply the FSA time credits that Walton believes he is rightfully owed.
Walton's argument is not facially absurd: Most of the time he has spent and will spend in prison are wholly the result of an offense that is not excluded from eligibility under the FSA, and it is not unreasonable to think that Walton might therefore be eligible to earn FSA time credits for at least some of the period that he spends in prison. The problem for Walton is 18 U.S.C. § 3584(c), which provides that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” As far as this Court can tell, every court to consider the question-and since the time that Walton filed his habeas petition, there have been many courts that have considered the question-has concluded that the effect of § 3584(c) is to exclude prisoners in Walton's situation from eligibility under the FSA. See, e.g., Teed v. Warden FCI Allenwood, No. 23-1181, 2023 WL 4556726, at *1-2 (3d Cir. July 13, 2023); Wallace v. Knight, No. 22-CV-6705 (KMW), 2023 WL 4954727, at *1 (D.N.J. Aug. 3, 2023); Cortez v. Hemingway, No. 2:22-CV-12234, 2023 WL 4274957, at *2 (E.D. Mich. June 29, 2023); Patillar v. Goldey, No. 22-CV-0866, 2023 WL 4307651, at *2-3 (W.D. Okla. May 26, 2023); Rose v. Yates, No. 2:22-CV-0214 (BSM/PSH), 2023 WL 3198298, at *2-3 (E.D. Ark. May 2, 2023); Ledford v. LeMaster, No. 23-CV-0030, 2023 WL 2905376, at *3 (E.D. Ky. Mar. 28, 2023); Goodman v. Sage, No. 4:22-CV-0981, 2022 WL 18028148, at *3 (M.D. Penn. Dec. 30, 2022) (noting that “[t]his argument ... has been consistently rejected by courts within and beyond this district”); Giovinco v. Pullen, No. 3:22-CV-1515 (VAB), 2023 WL 1928108, at *2-3 (D. Conn. Feb. 10, 2023).
Among the first of those cases to reach that conclusion arose out of this District. See Sok v. Eischen, No. 22-CV-0458 (ECT/LIB), 2022 WL 17156797 (D. Minn. Oct. 26, 2022), Report and Recommendation adopted by 2022 WL 17128929 (D. Minn. Nov. 22, 2022). As explained in Sok, “[c]ourts have consistently held [in other contexts] that sentence calculation by the BOP and the BOP's administration of incentives which reduce the length of a prisoner's term of imprisonment are administrative functions of the BOP subject to § 3584(c).” Sok, 2022 WL 17156797, at *5 (citing cases employing similar logic to issues concerning the BOP's administration of the Residential Drug Abuse Treatment Program). Applying the FSA to sentence calculations, explained Sok, is an administrative task, and the BOP is bound by § 3584(c) in applying the FSA. ...
Because Walton's claim challenges the administration of a sentence, the Court must look to § 3584(c) to determine how the sentence is to be treated. And under § 3584(c), consecutively imposed sentences “shall be treated for administrative purposes as a single, aggregate term of imprisonment.” ...
Walton argues that under BOP Policy Statement 5880.28, “[a]ll counts in a single [judgment and conviction] shall be served in the order imposed by the court,” and the BOP's aggregation of his sentences is inconsistent with this policy statement. This argument fails as well. As an initial matter, even if BOP Policy Statement 5880.28 did contradict § 3584(c), it would be the statute, not the policy statement, that would control. But BOP Program Statement 5880.28 itself goes on to state that “reference to a 924/non-924 sentence, in a single [judgment and conviction], means that the counts have been aggregated into a single sentence ... as required by 18 U.S.C. § 3584(c).” In other words, BOP Policy Statement 5880.28 covers Walton's precise situation and explains that the sentence is to be treated as aggregated, consistent with § 3584(c).Walton v. Fikes, 2023 WL 6283298, at *1-2 .
In another recent case, Mancillas v. Federal Bureau of Prisons, 2023 WL 5404229, at *5 (D. Md. Aug. 22, 2023), the Petitioner was serving a three-year term of supervised release for Possession of a Firearm During a Drug Trafficking Crime, in violation of 18 U.S.C. §924(c) when he was charged with Conspiracy to Possess with Intent to Distribute 5 kilograms or More of Cocaine for which he was sentenced to 204 months' imprisonment. His supervised release was revoked and he was sentenced to a 24-month term of imprisonment which was ordered to run concurrently with any other sentenced. The BOP determined Mancillas was ineligible for ETCs under the FSA because of his §924(c) conviction. Like here, Petitioner argued that his incarceration for violating his supervised release had expired and his sentence served. Mancillas argued that his sentences should be treated as distinct sentences for the purpose of eligibility for ETCs but his sentences were aggregated by the BOP precluding him from earning ETCs under FSA based on his conviction under §924(c). The court in Mancillas found that “the BOP has clarified in Program Statement 5880.28, Sentence Computation Manual, that ‘SRA [Sentencing Reform Act] sentences, including a term of imprisonment that results from a revocation of supervised release or probation, shall be aggregated to form a single sentence for computation purposes.'” As the Petitioner argues here, the petitioner in Mancillas argued there was ambiguity as to what was meant by “serving a sentence” for certain convictions. The Mancillas court held that if there is ambiguity, the BOP is entitled to deference in the application of FSA ETCs pursuant to Chevron, USA, Inc. V. NRDC, Inc., 467 U.S. 837, 865 (1984). The court concluded that “ . . . even when the sentence stemming from the §924(c) conviction had been fully served day for day, it still acted as part of an aggregate sentence barring Mancillas from eligibility to earn ETCs. This is a permissible and reasonable construction of the statute, and thus is entitled to deference.” Id.
Other courts have found Chevron deference applicable to the BOP's interpretation of this issue. See, e.g.,.Goodman v. Sage, 2022 WL 18028148, at *3; Dahda v. Hudson, No. 23-3008, 2023 WL 2815920, at *1 (D. Kan. Mar. 7, 2023); see also Martinez v. Rosalez, No. 1:22-cv-1297, 2023 WL 2904579, at *4 (W.D. Tex. Apr. 10, 2023), report and recommendation adopted, No. 1:22-cv-01297, 2023 WL 3441566 (W.D. Tex. May 12, 2023); Giovinco v. Pullen, No. 3:22-cv-1515, 2023 WL 1928108, at *3 (D. Conn. Feb. 10, 2023). United States v. Bryant, No. 3:04-CR-00047, 2023 WL 4355053, at *4 (W.D. Va. July 5, 2023).
The Fourth Circuit issued an unpublished decision on October 3, 2023, McNeill v. Ramos, No. 23-6488, 2023 WL 6442551, at *1 (4th Cir. Oct. 3, 2023)(unpublished), in which it upheld the district court's finding that “McNeill was ineligible for sentencing time credits. See 18 U.S.C. §3632(d)(4)(D)(xxii).” In the underlying case, Petitioner was serving a current sentence for possession with the intent to distribute 500 grams or more of cocaine, a quantity of cocaine base (crack), and a quantity of marijuana in violation of 21 U.S.C. §841(a)(1), and for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A). See McNeill v. Ramos, No. 5:22-hc-02134-M-RJ (E.D. N.C. Apr. 12, 2023), aff'd by McNeill v. Ramos, No. 23-6488, 2023 WL 6442551, at *1 (4th Cir. Oct. 3, 2023). Although the instant Petition here involves a supervised release revocation for a violation of §924(c), it is one of McNeill's alternative arguments that is instructive. In the alternative argument, McNeill argued that even though he was serving a sentence for a conviction under §924(c) and statutorily ineligible to receive time credits, he should receive partial FSA time credits for his consecutive drug-crime sentence. The district court found the argument was statutorily foreclosed quoting:
18 U.S.C. §3584(c) (‘multiple terms of imprisonment ordered to run
consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.'); accord Goodman, No. 4:22-cv-00981, 2022 WL 18028148, at *3 (rejecting an argument that a §2241 petitioner's sentences for different offenses may be bifurcated to allow receipt of partial FSA ‘time credits,' because this argument ‘runs counter to the plain language of 18 U.S.C. §3584(c)'); Keeling v. LeMaster, No. 22-CV-00096-GFVT, 2022 WL 17407966, at *2 (E.D. Ky. Dec. 2, 2022)(Denying a §2241 petition seeking FSA ‘time credits' because the petitioner's aggregate sentence included a §924(c) conviction); Sok v. Eischen, No. 22-CV-458 (ECT/LIB), 2022 WL 17156797, at *6 (D. Minn. Oct. 26, 2022) (“Because petitioner's aggregate sentence includes a sentence predicated on a violation of 18 U.S.C. §924(c) he is ineligible to earn time credits under the First Step Act.”), report and recommendation adopted, No. 22 CR-458 (ECT/LIB), 2022 WL 17128929 (D. Minn. Nov. 22, 2022).Id. (ECF No. 7).
See Teed v. Warden, Low Sec. Corr. Inst., Allenwood, 2023 WL 1768121, at *1 (M.D. Penn. Feb. 3, 2023); Frommie v. Fed. Bureau of Prison, 2022 WL 18399537, at *3 (D.S.D. Aug. 23, 2022), report and recommendation adopted, 2022 WL 18399536 (D.S.D. Nov. 30, 2022); Ledford v. Lemaster, 2023 WL 2905376 (E.D. Ky. Mar. 28, 2023); Patillar v. Goldey, 2023 WL 4307651, at *2-3 (W.D. Okla. May 26, 2023), report and recommendation adopted, 2023 WL 4306702 (W.D. Okla. June 30, 2023); Martinez v. Rosalez, 2023 WL 2904579 (W.D. Tex., Apr. 10, 2023), report and recommendation adopted 2023 WL 3441566 (W D Tex May 12 2023).
Based on the mandatory statutory language under 18 U.S.C. §3584(c), for administrative purposes, the BOP's aggregation of the consecutive sentences for the purpose of determining that Petitioner is ineligible to earn FSA time credits due to the disqualifying offense stemming from the §924(c) conviction is proper.
Even if the court were to find ambiguity, the BOP's interpretation of the statute is entitled to Chevron deference. The BOP's interpretation is reasonable and Respondent's motion for summary judgment should be granted.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 20) be GRANTED and this claim dismissed.