[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10882 MARCH 16, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 87-00134-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAYDANI MARTINEZ,
a.k.a. Roberto Martinez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 16, 2009)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Laydani Martinez appeals the denial of his motion to correct an illegal
sentence. See Fed. R. Crim. P. 35(a) (1986). The district court concluded that
Martinez’s sentence was neither illegal nor ambiguous and that he was not entitled
to credit toward his federal sentence for his continued incarceration in state prison
for convictions not mentioned in his sentencing order. We affirm.
I. BACKGROUND
In April 1983, Martinez was sentenced in a Florida court to serve four
concurrent sentences of twelve years of imprisonment in case number 82-31688
for crimes committed during an armed robbery. Two months later, Martinez
escaped from a Florida prison and committed two additional robberies and a
burglary. Martinez was later convicted of those robbery and burglary crimes in
cases numbered 84-7930, 84-8541, and 84-8640, and sentenced in May 1985 to
three concurrent terms of twelve years of imprisonment. Martinez also was
convicted of escape in case number 85-3029 and sentenced in November 1985 to
fifteen months of imprisonment to run consecutive to his May 1985 sentence.
Martinez escaped from custody a second time in August 1986 and quickly
recaptured.
In October 1986, discontent with his treatment in state prison and desiring
incarceration in a federal institution, Martinez mailed three letters to an officer of
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a savings and loan demanding $100,000 and threatening the lives of the officer’s
wife and children. Martinez was convicted of one count of intent to extort by
mailing a threatening letter and two counts of mailing threatening
communications. 18 U.S.C. § 876. In May 1988, a federal court sentenced
Martinez to thirty years of imprisonment. The docket sheet stated that the
sentence would run “consecutively to the sentence [Martinez] is presently serving
in state” prison. The written sentencing order stated that Martinez’s sentence
“shall be served consecutive to” the “sentences imposed in Docket Nos. 82-31688
and 84-7930, 84-8541 and 84-8640.” After the sentencing hearing, federal
officials returned Martinez to prison officials of Florida.
In August 1988, a Florida court sentenced Martinez to twenty-two years of
imprisonment in case number 86-0123 for his second escape and a related charge
for possession of a weapon. The Florida court ordered that the sentence run
consecutive to the sentences in cases 84-7930, 84-8541, 84-8640, and 85-3029.
In February 2004, Martinez completed his state sentences and was
transferred to the custody of federal officials. A few months later, Martinez asked
the Bureau of Prisons to credit him for the time spent in state custody after
imposition of his federal sentence. Martinez designated February 18, 1992, as the
date that his federal sentence commenced. The Bureau denied relief and stated
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that Martinez was not entitled to credit for time served in state prison absent an
order for his federal sentence to run concurrent with his state sentence. Martinez
appealed to the Regional Director, who also denied relief.
In August 2006, Martinez filed pro se a “request for correction of his illegal
sentence” under former Federal Rule of Criminal Procedure 35(a). Martinez
argued that the 1988 order of the federal court was ambiguous because it was
silent about his sentence for escape in case 85-3029. Martinez also argued that the
order was illegal because it required him to serve his federal sentence consecutive
to his conviction in case 86-0123 for which he had not yet been sentenced.
Martinez asked the district court to credit his federal sentence for the time he
remained in state custody after completing his sentences in cases 82-31688, 84-
7930, 84-8541, and 84-8640.
The district court denied Martinez’s motion. The district court rejected
Martinez’s argument that his sentence was illegal and found that the sentencing
order was not ambiguous and “clearly indicate[d] the [c]ourt’s intention that
[Martinez] serve his federal sentence after his completion of the enumerated state
sentences.” The district court also mentioned, “for the sake of argument,” that it
was allowed, under United States v. Ballard, 6 F.3d 1502 (11th Cir. 1993), to order
Martinez to serve his sentence “after an unimposed, future state sentence[.]”
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Martinez appealed the decision, but we dismissed his untimely appeal for lack of
jurisdiction. United States v. Martinez, No. 07-11168 (11th Cir. July 16, 2007).
In March 2007, Martinez moved for reconsideration, the district court denied his
motion, and we dismissed his appeal for want of prosecution. United States v.
Martinez, No. 07-11706 (11th Cir. June 8, 2007).
In December 2007, Martinez filed pro se a second motion to correct an
illegal sentence. Martinez repeated the argument made in his first motion to
correct. The district court denied the motion because it had already considered
and rejected Martinez’s argument.
II. STANDARD OF REVIEW
Our review of a request to correct a sentence under former Federal Rule of
Criminal Procedure 35(a) is plenary. United States v. Sjeklocha, 114 F.3d 1085,
1087 (11th Cir. 1997). We review de novo the application of former Rule 35(a)
and review related findings of fact for clear error. Id.
III. DISCUSSION
When the federal court sentenced Martinez, Federal Rule of Criminal
Procedure 35(a) stated, “The court may correct an illegal sentence at any time and
may correct a sentence imposed in an illegal manner . . . within 120 days after the
sentence is imposed . . . .” Fed. R. Crim. P. 35(a)–(b) (1979). The Rule served a
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“narrow function” to correct one of three errors: (1) the sentence exceeded the
statutory maximum; (2) the sentence imposed multiple terms of incarceration for
the same offense; or (3) “the terms of the sentence itself was legally or
constitutionally invalid in any other respect.” Hill v. United States, 368 U.S. 424,
430, 82 S. Ct. 468, 472 (1962). The district court did not err by denying
Martinez’s motion under this Rule.
The commencement of federal sentences imposed for crimes committed
before November 1, 1987 are governed by a statute. 18 U.S.C. § 3568; Meagher
v. Clark, 943 F.2d 1277, 1282 (11th Cir. 1991). Section 3568 provides that a
federal sentence does not commence until a defendant is delivered to federal
authorities: “The sentence of imprisonment of any person convicted of an offense
shall commence to run from the date on which such person is received at the
penitentiary, reformatory, or jail for service of such sentence. . . . No sentence
shall prescribe any other method of computing the term.” 18 U.S.C. § 3568. We
“have uniformly interpreted the language of Section 3568 and its predecessors as
precluding the calculation of the time served on a federal charge from any date
other than that on which the defendant was delivered to federal prison officials.”
Meagher, 943 F.2d at 1282.
Martinez’s argument is foreclosed by our decisions in Lamb v. Heritage,
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310 F.2d 71 (5th Cir. 1962) (per curiam), and Harrell v. Shuttleworth, 200 F.2d
490 (5th Cir. 1952). See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc). Under the plain language of section 3568, a state may
require a defendant to complete all state sentences before transferring him to
federal custody. See Lamb, 310 F.2d at 71–72. The state has the authority to
require the defendant to complete even those sentences imposed after sentencing
by the federal court and not mentioned in the federal sentencing order. See id.;
Harrell, 200 F.2d at 490–91. Extended custody by the state does not affect and
may not be credited against the length of the defendant’s federal sentence. See
Lamb, 310 F.2d at 71–72. “‘A person who has violated the criminal statutes of
both Federal and State Governments may not complain of the order in which he is
tried or punished for such offenses.’” United States v. Adair, 826 F.2d 1040, 1041
(11th Cir. 1987) (per curiam) (quoting Causey v. Civiletti, 621 F.2d 691, 694 (5th
Cir. 1980)).
IV. CONCLUSION
The denial of Martinez’s second motion to correct his sentence is
AFFIRMED.
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