Case: 10-40482 Document: 00511404882 Page: 1 Date Filed: 03/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 9, 2011
No. 10-40482 Lyle W. Cayce
Summary Calendar Clerk
ROY LEE JONES,
Petitioner - Appellant
v.
WARDEN DAN JOSLIN,
Respondent - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CV-344
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Roy Lee Jones, federal prisoner # 39810-180, appeals the dismissal of his
28 U.S.C. § 2241 habeas petition. He alleges that his federal sentence is being
improperly executed because the Federal Bureau of Prisons is treating it as
consecutive to, instead of concurrent with, a previously imposed state sentence.
Although we acknowledge some ambiguity in the language used when imposing
the federal sentence, we agree with the BOP that we must treat the sentences
as consecutive, and we therefore affirm.
Case: 10-40482 Document: 00511404882 Page: 2 Date Filed: 03/09/2011
No. 10-40482
Jones was convicted of four separate offenses within a short period of time.
He was convicted on a state charge of possession of cocaine for an offense that
occurred on December 3, 2002,1 and a separate state charge of family assault for
an offense that occurred on January 30, 2003.2 He was sentenced for both state
convictions on May 3, 2004. Jones later pleaded guilty in federal court to one
count of being a felon in possession of a firearm 3 and one count of possession
with intent to distribute cocaine base,4 both arising from an incident that
occurred on May 5, 2003. The federal court sentenced Jones on October 19,
2004, to “a term of ONE HUNDRED TWENTY (120) MONTHS on [the firearms
offense], and a term of TWO HUNDRED FORTY (240) MONTHS on [the drug
offense], all to be served concurrently.” 5
Jones contends that because the sentencing court ordered “all to be served
concurrently,” the federal sentences are to run concurrent with his state
sentence. He argues that if this language referred only to the federal sentences,
the district court should have stated “both to be served concurrently.” The BOP
asserts that because the sentencing court did not mention the prior state
sentence, we must apply the statutory presumption of 18 U.S.C. § 3584(a), which
provides that “[m]ultiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run concurrently.”
1
See TEX . HEALTH & SAFETY CODE § 481.115.
2
See TEX . PENAL CODE § 22.01.
3
See 18 U.S.C. § 922(g).
4
See id. § 841.
5
Judgment, United States v. Jones, No. A-03-CR-191(1)-SS (W.D. Tex. Oct. 19, 2004)
(emphasis added), appeal dismissed, 218 F. App’x 316 (5th Cir. 2007) (unpublished); see also
United States v. Jones, 328 F. App’x 916 (5th Cir. 2009) (unpublished) (denying Jones’s motion
for a reduction of sentence).
2
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No. 10-40482
We hold that when the sentencing court makes no mention of a prior state
sentence, the federal sentence shall run consecutive to the state sentence. Both
18 U.S.C. § 3584(a) and our cases recognize a strong presumption that
separately imposed sentences are to run consecutively, and they place the onus
on the district court to specifically order when it wishes to depart from this
default rule.6 Although Jones’s federal judgment is inartfully worded, and
perhaps even ambiguous, it cannot specifically order the federal sentence to run
concurrent with the state sentence when the judgment never mentions the state
sentence.
Our conclusion is reinforced by 18 U.S.C. § 3584(b), which instructs that
when determining whether sentences should run concurrently or consecutively,
the sentencing court shall consider the factors set forth in 18 U.S.C. § 3553(a).
Because the two federal sentences were concurrent by default,7 there was no
need for the court to explain why these sentences should be served concurrently
with each other.8 But if the court wanted the federal sentences to also run
concurrent with the state sentence, contrary to the statutory presumption, then
it should have discussed why this departure was justified with reference to the
Section 3553(a) factors and the specific offenses for which Jones was convicted.
The sentencing court offered no such discussion.
6
See, e.g., United States v. Candia, 454 F.3d 468, 475 (5th Cir. 2006) (“[I]f the district
court had said nothing about the consecutiveness or concurrence of this sentence, the statutory
presumption is that the sentence would run consecutively.”); Free v. Miles, 333 F.3d 550, 553
(5th Cir. 2003) (“Well-settled federal law presumes that when multiple terms of imprisonment
are imposed at different times, they will run consecutively unless the district court specifically
orders that they run concurrently.”).
7
“Multiple terms of imprisonment imposed at the same time run concurrently unless
the court orders or the statute mandates that the terms are to run consecutively.” 18 U.S.C.
§ 3584(a).
8
See Rita v. United States, 551 U.S. 338, 356–57 (2007).
3
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No. 10-40482
The BOP also fully complied with 18 U.S.C. § 3585(b). The BOP
commenced Jones’s federal sentences on June 18, 2007, the date he was released
from his state sentence. Jones was not entitled to credit toward his federal
sentences for the time spent serving his state sentence. Jones did receive credit
toward his federal sentences for his days in federal custody that were not
awarded against the state sentence. The BOP thus correctly calculated Jones’s
sentence.
AFFIRMED.
4