FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 13, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOHN JAY POWERS,
Petitioner - Appellant,
v. No. 19-1067
(D.C. No. 1:18-CV-01226-KMT)
M.L. STANCIL, (D. Colo.)
Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before LUCERO, O’BRIEN, and CARSON, Circuit Judges.
_________________________________
John Jay Powers is a prisoner in the custody of the Federal Bureau of Prisons
(“BOP”). Appearing pro se, Powers filed an application under 28 U.S.C. § 2241
challenging the BOP’s computation of his sentences for numerous convictions in
multiple jurisdictions. The district court denied Powers’s application and he now
appeals.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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The parties consented to the magistrate judge conducting all proceedings,
including the entry of a final judgment. See 28 U.S.C. § 636(c).
I. BACKGROUND
On February 22, 1990, Powers was sentenced in case number 89-61-Cr-T-13
(08) in the Middle District of Florida to eighteen months’ imprisonment for
possession of a stolen motor vehicle. That same day, the court entered a separate
judgment against Powers for criminal contempt arising from his conduct in the trial
on the stolen vehicle charge and sentenced him to five and one-half months’
imprisonment. The judgment in the criminal contempt case does not state whether
the sentence should run consecutive to or concurrent with the eighteen-month
sentence.
The next day, February 23, also in case number 89-61-Cr-T-13 (08), another
judgment was entered on two counts of bank robbery, and Powers was sentenced to
concurrent terms of 236 months’ imprisonment on each count. The judgment states
those sentences run consecutive to the sentences for possession of a stolen motor
vehicle and criminal contempt.
Then, on March 9, in case number 89-60-Cr-T-15B, also in the Middle District
of Florida, Powers was sentenced to a total term of fifteen years’ imprisonment for
transportation of stolen vehicles, possession of a firearm by a convicted felon,
possession of an unregistered and altered firearm, interstate transportation of stolen
firearms, and possession of counterfeit security. The judgment directs the
fifteen-year sentence to run consecutive to the term of imprisonment in case number
89-61-Cr-T-13 (08). More than seventeen years later, on October 5, 2017, the
judgment in 89-60-Cr-T-15B was vacated and a new sentencing hearing was ordered.
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Approximately two months later, on December 18, 2017, Powers was resentenced to
concurrent terms of sixty-four months’ imprisonment on each count. The judgment
once again directs each sentence to run consecutive to the sentences imposed in case
number 89-61-Cr-T-13 (08).
Next, on May 23, 1991, Powers was sentenced in the Southern District of
Indiana in case number IP 90-145-CR-01 to sixty-six months’ imprisonment for bank
robbery. The judgment directs the sentence to run consecutive to the sentences being
served by Powers in case numbers 89-61-Cr-T-13 (08) and 89-60-Cr-T-15B from the
Middle District of Florida.
Powers escaped from custody while he was an inmate at a federal correctional
facility in New Jersey. Following his capture and subsequent conviction for escape
and transportation of a stolen vehicle, Powers was sentenced on October 1, 2001, in
case number 1:99-CR-253 in the District of New Jersey, to concurrent terms of forty-
five months’ imprisonment. The judgment provides the sentences should run
consecutive to the sentences in case numbers 89-61-Cr-T-13 (08) and 89-60-Cr-T-
15B from the Middle District of Florida; however, it is silent as to whether it should
run consecutive to or concurrent with the sentence in the Southern District of Indiana.
Last, on December 11, 2013, Powers was sentenced in case number
4:15-cr-00647-FRZ-EJM in the District of Arizona, to thirty-three months’
imprisonment for assault on a federal officer. The judgment directs twenty months
and thirty days of the sentence to run concurrent with all four previously imposed
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sentences and twelve months and one day to run consecutive to any undischarged
terms of imprisonment.
In the § 2241 proceedings, Powers asked the district court “to order the []BOP
to do three things[.]” R. at 359. First, “to run the . . . sentence [for criminal
contempt] in 89-61-cr-T-13B . . . concurrent with the possession of a stolen motor
vehicle count in the same case.” Id. (emphasis added). Second, “to run the sentence”
for escape and transportation of a stolen vehicle in the District of New Jersey
concurrent to the sentence in the case from the Southern District of Indiana. Id. And
last, “(if necessary) to recalculate [his] sentence(s) according to the vacation of the
entire judgment in 89-60-cr-T-15.” Id. Powers maintained that properly calculated,
he served the sentences in full on January 2, 2018, and should have been released
from custody on that date. The court considered and rejected each argument.
II. STANDARD OF REVIEW
“When reviewing the denial of a habeas petition under § 2241, we review the
district court’s legal conclusions de novo and accept its factual findings unless
clearly erroneous.” al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013). Also,
we construe Powers’s pro se pleadings liberally and hold him “to a less stringent
standard than . . . pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “At the same time, we do not believe it is the proper function
of the . . . court to assume the role of advocate for the pro se litigant.” Id.
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III. ANALYSIS
A. Concurrent Versus Consecutive
“After a district court sentences a federal offender, the Attorney General,
through the BOP, has the responsibility for administering the sentence.” United
States v. Wilson, 503 U.S. 329, 335 (1992). Relevant here, Congress has determined
how multiple sentences of imprisonment should be treated: “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. Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders
that the terms are to run concurrently.” 18 U.S.C. § 3584(a).
The BOP has adopted a program statement to determine whether the terms of
imprisonment were imposed by the court at the same time or at different times:
Sentences that are imposed as the result of a single trial on the
counts within a single indictment are considered to have been imposed
at the same time, regardless of whether they are imposed at different
times on the same date or on a later date.
Sentences that are imposed on the same date, or on different
dates, based on convictions arising out of different trials, are considered
to have been imposed at different times even if the trials arose out of the
same indictment.
BOP PS 5880.28, ch. 1, p. 32.
According to Powers, Program Statement 5880.28 “has been fully depleted by
the ruling in” Setser v. United States, 566 U.S. 231 (2012), Aplt. Opening Br. at 13,
which, he insists, “made clear that only the district courts have the authority to make
the consecutive-vs.-concurrent decisions,” id. at 12. To be sure, Setser reaffirmed the
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courts—not the BOP—have the discretion to impose consecutive or concurrent
sentences. 556 U.S. at 235-39. But Powers’s reliance on Setser is misplaced because
when the BOP determined the sentences imposed by the court on February 22, 1990,
for motor vehicle theft and criminal contempt in case number 89-61-Cr-T-13 (08)
were imposed at different times, it was not exercising the sentencing discretion
reserved to the courts; rather, the BOP was administering the sentence as provided in
§ 3584(a) and the Program Statement. Similarly, when the BOP determined the
sentence for escape and transportation of a stolen vehicle in case number 1:99-CR-
253 should run consecutive to the sentence in the case from the Southern District of
Indiana, the BOP was administering the sentence.
Powers also argues the sentences imposed on February 22, 1990, in case
number 89-61-Cr-T-13 (08), should run concurrently because § 5G1.2 of the U.S.
Sentencing Guidelines (“Guidelines”) “seems to say that even sentences imposed on
different indictments, when imposed in a consolidated sentencing proceeding, are
imposed at the same time.” Aplt. Opening Br. at 13 (emphasis omitted). We agree
with the government “[§] 5G1.2 is not helpful to [Powers].” Aplee. Resp. Br. at 20.
The commentary to the 1989 Guidelines under which Powers was sentenced
provides: “This section specifies the procedure for determining the specific sentence
to be formally imposed on each count in a multiple-count case.” Powers was not
charged in a multiple count case.
Next, Powers maintains Program Statement 5880.28 does not apply to the
criminal contempt sentence because only sentences arising from different trials are
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considered to have been imposed at different times, and there was not a separate trial
on contempt. Specifically, Powers argues “[i]t is quite a stretch to hold that a
summary finding of criminal contempt constitutes a ‘trial’ with the meaning of [BOP]
policy.” Aplt. Opening Br. at 13. Nonetheless, he concedes “[n]otwithstanding the
general rule of deference extended to legitimate exerci[s]es of agency authority, the
courts are the final authorities on statutory construction.” Id. at 14. We agree with
the district court’s construction. Although there was not a separate trial because
Powers “was held in summary contempt[,] . . . [his] conviction and sentence for
criminal contempt was part of a separate prosecution that resulted in a separate
Judgment and was [therefore] imposed at a different time within the meaning of
[Program Statement 5880.28].” R. at 372. To interpret the BOP Program Statement
as requiring an actual trial would mean, for example, a sentence imposed as a result
of a guilty plea could not have been imposed at a different time. Moreover, Powers
has not come forward with any authority that Congress intended to exclude sentences
where there was no trial from the reach of § 3584(a).
Last, there is no merit to Powers’s argument his sentence for escape and
transportation of a stolen vehicle in case number 1:99-CR-253 in the District of
New Jersey, should be interpreted to run concurrent with his sentence in the Southern
District of Indiana because the court was aware of the undischarged Indiana sentence
and chose not to run its sentence consecutively. There is no record evidence to
support this claim. And because this sentence plainly was imposed at a different
time, the district court properly concluded the sentences were to run concurrently.
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We affirm the district court’s decision the BOP properly determined Powers’s
criminal contempt sentence should run consecutive to the sentence for motor vehicle
theft and his sentence for escape and transportation of a stolen vehicle should run
consecutive to his sentence for bank robbery in the Southern District of Indiana.
B. The October 5, 2017 Order to Vacate the Sentence
Powers also claimed in his habeas application the BOP erred by failing to
recalculate his sentences immediately after the judgment in case number 89-60-Cr-T-
15B was vacated on October 5, 2017. Had the BOP done so, Powers argued he
would have received a more favorable sentence: “[T]he sentencing court . . . would
have sentenced petitioner to ‘time served’ on 18 December 2017.” R. at 101.
Alternatively, Powers argued the new sentence imposed on December 18, 2017, “was
not ordered to be served consecutive to any sentence other than 89-61-CR-T-13,” id.
at 102, and therefore should be interpreted as concurrent to all other undischarged
sentences.
Powers cannot raise a claim he would have received a more favorable sentence
in an application under § 2241; instead, a motion under 28 U.S.C. § 2255 is “[t]he
exclusive remedy for testing the validity of a judgment and sentence, unless it is
inadequate or ineffective.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)
(internal quotation marks omitted). And we have considered and rejected his second
argument under the plain wording of § 3584(a), which provides: “Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders
that the terms are to run concurrently.” § 3584(a).
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Powers also claimed in the district court that “[h]ad the []BOP re-calculated
[his] sentence after the 5 October 2017 order vacating the judgment and sentence in
89-60Cr-T-(27)” and before he was resentenced in December 2017, his other
sentences “would have automatically . . . discharged.” R. at 114. But Powers has
failed to present any evidence or authority to support this claim.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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