Filed: Feb. 20, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-20-2009 Osval Alvarez v. Paul Schultz Precedential or Non-Precedential: Non-Precedential Docket No. 08-3543 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Osval Alvarez v. Paul Schultz" (2009). 2009 Decisions. Paper 1840. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1840 This decision is brought to you for free and open access by
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-20-2009 Osval Alvarez v. Paul Schultz Precedential or Non-Precedential: Non-Precedential Docket No. 08-3543 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Osval Alvarez v. Paul Schultz" (2009). 2009 Decisions. Paper 1840. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1840 This decision is brought to you for free and open access by ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-20-2009
Osval Alvarez v. Paul Schultz
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3543
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Osval Alvarez v. Paul Schultz" (2009). 2009 Decisions. Paper 1840.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1840
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3543
___________
OSVAL ALVAREZ,
Appellant
v.
PAUL M. SCHULTZ, Warden
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 07-cv-05316)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 17, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed: February 20, 2009 )
___________
OPINION
___________
PER CURIAM
Appellant Osval Alvarez was arrested by City of Philadelphia police officers on
August 4, 1999, charged under state law for distributing Phencyclidine (PCP) and taken
into state custody; he was released on bond on August 6, 1999. On August 19, 1999, he
was arrested as a parole violator and placed again in state custody. When the state
dismissed its narcotics charges against Alvarez in November 1999, he remained in state
custody solely on the parole violation charges. While in state custody, Alvarez was
indicted by federal authorities on multiple drug charges pursuant to 21 U.S.C. § 841(a)(1)
and §860(a), associated with his arrest in August 4, 1999.
On March 24, 2000, state authorities delivered Alvarez to federal court by means
of a writ of habeas corpus ad prosequendum. On September 14, 2000, Alvarez pled
guilty to certain counts of the federal indictment. The federal court sentenced Alvarez on
March 5, 2001, to 130 months in prison with six years of supervised release.
On March 15, 2001, Alvarez was returned to state custody. On June 22, 2001, the
Pennsylvania Board of Probation and Parole (“PBPP”) sentenced him to three to six years
in prison. On August 12, 2002, the PBPP released Alvarez on parole and transferred him
immediately to the custody of the Federal Bureau of Prisons (BOP) to begin serving his
federal sentence.
In the fall of 2001, Alvarez filed a motion for correction or clarification of his
federal sentence while he was in state custody, seeking to have the time he spent in state
custody credited to his federal sentence.1 The federal sentencing court denied Alvarez’s
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After Alvarez filed his motion, the PBPP agreed to credit his state parole
violation sentence for the periods from August 19, 1999, to March 24, 2000, and from
March 15, 2001 to August 12, 2002. Meanwhile, the BOP credited Alvarez with time
served for the three days he was held in state custody upon his arrest on August 4, 1999,
on local narcotics charges and for the time period in which he was held temporarily in
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motion for clarification/correction in March 2002, because the court had advised Alvarez
during the plea colloquy that his federal sentence would be served consecutively to any
state prison sentence he received.
The BOP, meanwhile, construed Alvarez’s motion as a request for nunc pro tunc
designation of the state prison as his place of incarceration for his federal sentence.
Pursuant to its authority to make such a designation under BOP Program Statement
5160.05, the BOP conducted a review of Alvarez’s criminal history and sent the
sentencing court a letter seeking the court’s position on Alvarez’s request. The
sentencing court recommended against nunc pro tunc designation for the same reason that
it denied Alvarez’s motion for correction/clarification. Thereafter, the BOP declined to
grant Alvarez’s request for nunc pro tunc designation request.
Upon exhaustion of his administrative remedies, Alvarez filed a habeas petition
pursuant to § 2241, claiming that the BOP refused to consider, or mistakenly failed to
grant, his nunc pro tunc designation request. He asserted his entitlement to fair treatment
of his request under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). After the
Government submitted an answer, the District Court denied the habeas petition by order
entered on July 1, 2008. In denying relief, the District Court reasoned that, at the time of
Alvarez’s federal sentencing, the sentencing court lacked statutory authority to order that
the federal sentence run concurrently with a state sentence because there was no state
federal custody from March 25, 2000 through March 14, 2001.
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sentence at the time — Alvarez’s parole violation charges were still pending before the
PBPP in March 2001. The BOP, however, had discretionary authority under 18 U.S.C. §
3621(b) and P.S. § 5160.05 to make a nunc pro tunc designation. The District Court held
that the BOP treated Alvarez fairly in reviewing his designation request and did not abuse
its discretion in denying it pursuant to P.S. § 5160.05. This timely appeal followed.
We have jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review over
the District Court’s legal conclusions and review its findings of fact for clear error.”
Cristin v. Brennan, 281 F.3d 404, 409 (3d Cir. 2002). We will affirm.
Alvarez argues that the eighteen month period from March 15, 2001 to August 12,
2002, which Pennsylvania authorities credited to his parole violation sentence, should
have been credited to his federal sentence. He argues that the failure to credit his federal
sentence means that he will serve 148 months instead of the actual sentence of 130
months. He asserts that the BOP has the discretion to allow his state and federal
sentences to run concurrently because the federal sentencing court did not indicate at
sentencing whether the sentence was to run concurrently or consecutively to the “yet to be
imposed” state sentence.
In Barden v. Keohane, we held that the BOP can, in its discretion, designate a state
prison as a place of federal confinement nunc pro tunc. 921 F.2d at 481. While we
recognized habeas relief is “an appropriate judicial means of compelling that
examination,” we also held that resolution of the issue “is a matter within the Bureau’s
4
sound discretion.” Id. at 483.
There is nothing on this record that leads us to conclude that the BOP abused its
discretion in declining to grant Alvarez’s nunc pro tunc designation request. Because
Alvarez’s federal sentence was imposed first, the federal judgment does not refer to the
pending state parole violation. The BOP properly investigated Alvarez’s nunc pro tunc
designation request pursuant to its authority under 18 U.S.C. § 3621(b) and P.S. §
5160.05 by contacting the sentencing court for its input and by reviewing Alvarez’s prior
criminal history. For its part, the sentencing court recommended that the federal sentence
run consecutive to the state sentence because the court intended that the federal sentence
be served consecutively to any state prison sentence imposed. The BOP’s investigation of
Alvarez’s criminal record revealed a history of narcotics convictions dating back to 1991.
Based on its own investigation and taking into consideration the sentencing court’s non-
binding recommendation, the BOP properly exercised its discretion and denied Alvarez’s
request for a nunc pro tunc designation, reasoning that concurrent service would not be
consistent with the intent of the federal sentencing court or with the goals of the criminal
justice system.
The decision not to nunc pro tunc designate is also consistent with the use of the
August 12, 2002 date as the start date for the federal sentence under 18 U.S.C. § 3585(b).
Congress enacted 18 U.S.C. § 3585(b) to prohibit double credit in most circumstances.
See Rios v. Wiley, 201 F.3d 257, 272-75 (3d Cir. 2000). Here, the Pennsylvania
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authorities credited Alvarez’s state parole violation sentence with the eighteen-month
period he spent in state custody, from March 15, 2001 to August 12, 2002. Consistent
with the statute, Alvarez’s federal sentence commenced on the date that he was returned
to federal custody following his release on parole by the PBPP on August 12, 2002.
Accordingly, we will affirm the judgment of the District Court.
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