[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 11, 2006
No. 05-13728 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00026-CV-OC-10-GRJ
JOSE SEMANE COLOMA,
Petitioner,
versus
CARLYLE I. HOLDER,
Respondent.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 11, 2006)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Pro se federal prisoner Jose Semane Coloma appeals the district court’s
denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Coloma was sentenced twice in separate federal proceedings on different charges,
and he asserts that, because those charges were related, the second court’s intention
to have his sentences run “concurrently” should be construed under the Guidelines
to require the Bureau of Prisons to subtract time served from the 188 months
imposed as his second sentence. Because the second sentence already accounted
for any overlap due to separate prosecutions arising from the same crime, we
AFFIRM.
I. BACKGROUND
Coloma currently is serving a 188-month sentence for conspiracy to import
a controlled substance in violation of 21 U.S.C. § 963. This sentence is the result
of a second prosecution for a second drug importation conspiracy. In his petition,
Coloma alleged that the Bureau of Prisons (“BOP”) deprived him of precustodial
credits when he was in custody for a federal offense awaiting sentencing for a
second federal offense, but his petition was broadly construed. The issue on appeal
is whether the three years between the two cases should be deducted from his
second sentence by the BOP, because the court in the second federal case ordered
his sentence to run concurrently to the sentence then being served for his first
conviction.
2
The district court denied the petition for habeas corpus. Coloma asserts on
appeal that the sentencing hearing and plea agreement for his second federal
sentence indicate that the district court intended that his second federal sentence,
imposed in the Southern District of Georgia in 1994, would run fully concurrent
with his first federal sentence, imposed in the Southern District of Florida in 1991,
and that the order sentencing him to serve his sentence concurrently must have
been made pursuant to U.S.S.G. § 5G1.3 (1994).
The dispute on appeal concerns the years Coloma served in federal prison
from 1991 to 1994. There is no dispute that during the years after 1994 the time
passed concurrently for both the first and second sentences.1 Coloma’s first
sentence was for conspiracy to import marijuana, and his second sentence was for
conspiracy to import cocaine. Both sentences were imposed pursuant to conviction
under 21 U.S.C. § 963. Coloma argues that, because the dates of the conspiracies
overlap, because the same players were involved, and, because the drugs were
coming from the same country, the crimes were essentially the same criminal
enterprise and that he should be sentenced once. Coloma insists that this argument
is grounded in an appeal of the BOP’s construction of his sentence and not a
challenge to the sentence itself. We analyze Coloma’s argument in the sections
1
“Multiple terms of imprisonment ordered to run consecutively or concurrently [are]
treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C.
§ 3584(c).
3
that follow.
II. DISCUSSION
“In reviewing the district court’s denial of a habeas corpus petition, we
review questions of law de novo and the court’s findings of fact for clear error.”
Little v. Holder, 396 F.3d 1319, 1321 (11th Cir. 2005). “A petitioner has the
burden of establishing his right to federal habeas relief.”2 Romine v. Head, 253
F.3d 1349, 1357 (11th Cir. 2001).
At the second sentencing hearing, the district court said, “The term of
imprisonment imposed by this judgment shall run concurrently with the term of
imprisonment that was ordered pursuant to the judgment in the Southern District of
Florida case.” R1-9, App.A at 28. We must first determine the meaning of the
word concurrent. Whatever else the word means with regard to the second
sentence, however, it does not mean that the two sentences “hav[e] the same
starting date because a federal sentence cannot commence prior to the date it is
pronounced, even if made concurrent with a sentence already being served.”
United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1980).
A sentencing court may allow “terms of imprisonment imposed at different
2
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996), governs this appeal because Coloma’s motion was filed after the
AEDPA’s enactment.
4
times . . . to run concurrently.” 18 U.S.C. § 3584(a). The court should consider
the factors set out in 18 U.S.C. § 3553(a) when making this determination. Id.
§ 3584(b). However, a “term of imprisonment commences on the date the
defendant is received in custody . . . at the official detention facility at which the
sentence is to be served.” Id. § 3585. Thus, the district court’s instruction that the
sentence was to run concurrently to Coloma’s previous sentence was statutorily
permissible, and his second sentence began when he returned to a federal detention
facility following sentencing.
Coloma argues that the district court order, when properly understood,
actually intended his second sentence to have run concurrently from the beginning
of his first sentence. We have already observed that this is not what “concurrent”
means. However, the Sentencing Guidelines do provide a mechanism for a second
sentencing court to take account of a prosecution that is relevant3 to a previous
conviction “to mitigate the possibility that the fortuity of two separate prosecutions
will grossly increase a defendant’s sentence.” Witte v. United States, 515 U.S.
389, 405, 115 S. Ct. 2199, 2208–09 (1995). Coloma’s argument, therefore, asks us
to examine how the Guidelines affected his sentence.4 The Guidelines envision a
3
See U.S.S.G. § 1B1.3; see also United States v. Bidwell, 393 F.3d 1206, 1209–11 (11th
Cir. 2004).
4
As a procedural matter, Coloma admits that we may not reexamine the district court’s
sentence because he elected relief under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255. Thus, we
may not review whether the 188-month sentence was the proper one under the Sentencing
5
defendant prosecuted in “two . . . federal jurisdictions[] for the same criminal
conduct or for different criminal transactions that were part of the same course of
conduct.” U.S.S.G. § 5G1.3 cmt. n.2. Accordingly,
[i]f . . . the undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account in the
determination of the offense level for the instant offense, the
sentence for the instant offense shall be imposed to run concurrently
to the undischarged term of imprisonment.
Id. § 5G1.3(b).
This accounting occurs when a sentencing court “adjust[s the sentence] for
any term of imprisonment already served as a result of the conduct taken into
account in determining the sentence for the instant offense.” U.S.S.G. § 5G1.3
cmt. n.2. “For clarity, the court should note on the Judgment in a Criminal Case
Order that the sentence imposed is not a departure from the guidelines because the
defendant has been credited for guideline purposes under § 5G1.3(b) with [time]
served.” Id. Thus, when the court pronounces sentence, that sentence is the
“appropriate total punishment.” Id.
If there were any doubt that this total sentence is not retroactive to the
beginning of the first sentence, that doubt is eliminated by the example in the
Guidelines. Even if Coloma had requested that we review his sentence under the liberal pleading
doctrine affored to pro se petitioners by treating his § 2241 petition as a § 2255 petition, we
would still not be able to review his sentence, because such petition would be untimely. See
Kaufmann v. United States, 282 F.3d 1336, 1337 (11th Cir. 2002).
6
application notes. There, a prisoner had served six months in state court when he
was prosecuted for a related crime in federal court. The federal court determined
that a sentence of thirteen months was appropriate under the Guidelines and
determined that § 5G1.3(b) applied. The prisoner was then sentenced to seven
months, which sentence was to run concurrent to the remaining state sentence. See
U.S.S.G. § 5G1.3 cmt. n.2. It is clear from the example that the prisoner owed
seven more months starting from the date of the second sentencing. This reading
of the guideline keeps it consistent with the statute, which says that service of the
sentence commences when the defendant arrives in prison. See 18 U.S.C. § 3585.
For these reasons, our pre-Guidelines observation in Flores remains the law: “[A]
federal sentence cannot commence prior to the date it is pronounced.” 616 F.2d at
841.
In this case, we presume that the district court properly applied the
Guidelines, including § 5G1.3, when calculating Coloma’s sentence.5 That is, we
conclude that, to the extent the district court believed that Coloma’s two
prosecutions arose from the same course of criminal conduct as Coloma insists on
appeal that they did, the court properly applied § 5G1.3(b) to deduct from the
second sentence the proper amount of time to account for that already served under
5
We presume this because Coloma is not challenging his sentence. See supra note 4.
The necessity of this assumption is heightened by Coloma’s choice not to introduce evidence
into the record regarding the sentencing calculations produced in the district court.
7
the first sentence. See U.S.S.G. § 5G1.3 cmt. n.2. Thus, to the extent that the
district court believed § 5G1.3(b) applied, the 188-month sentence pronounced by
the court was the total sentence and would only have been greater but for the
court’s decision to subtract time to mitigate the danger arising from sentencing in
separate prosecutions.6 For these reasons, the BOP’s construction of Coloma’s
188-month sentence was proper.
III. CONCLUSION
Coloma has appealed the district court’s denial of his petition for writ of
habeas corpus under 28 U.S.C. § 2241. Because of the procedural posture of the
case, we must presume that the sentence was correctly calculated, and Coloma’s
188-month sentence, therefore, accounted for any relevant criminal conduct. We
AFFIRM.
6
The language in § 5G1.3(b) is mandatory, but the Third Circuit has held that the
language “makes clear that ‘concurrently’ in subsection (b) means fully or retroactively
concurrently, not simply concurrently with the remainder of the defendant’s undischarged
sentence.” Ruggiano v. Reish, 307 F.3d 121, 128 (3d Cir. 2002). Coloma argues this
interpretation means that his 188-month sentence should be considered as having started in 1991.
As we have explained, § 5G1.3(b) requires a court to take into account time served for related
crimes and to determine the appropriate prospective—not retrospective—sentence.
8