Filed: May 25, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6134 ANTHONY WAYNE MANGUM, Petitioner - Appellant, v. WARDEN S. HALLEMBAEK, Respondent – Appellee, and UNITED STATES OF AMERICA; BUREAU OF PRISONS, Respondents. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:13-hc-02227-FL) Argued: January 28, 2016 Decided: May 25, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circ
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6134 ANTHONY WAYNE MANGUM, Petitioner - Appellant, v. WARDEN S. HALLEMBAEK, Respondent – Appellee, and UNITED STATES OF AMERICA; BUREAU OF PRISONS, Respondents. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:13-hc-02227-FL) Argued: January 28, 2016 Decided: May 25, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circu..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6134
ANTHONY WAYNE MANGUM,
Petitioner - Appellant,
v.
WARDEN S. HALLEMBAEK,
Respondent – Appellee,
and
UNITED STATES OF AMERICA; BUREAU OF PRISONS,
Respondents.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-hc-02227-FL)
Argued: January 28, 2016 Decided: May 25, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded with
instructions by published opinion. Senior Judge Davis wrote the
opinion, in which Judge Gregory and Judge Harris joined.
ARGUED: Clint Cowan, Travis Andrews, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.
Michael Bredenberg, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Stephen L.
Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas
G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
2
DAVIS, Senior Circuit Judge:
Anthony Wayne Mangum appeals the district court’s denial of
his petition for a writ of habeas corpus under 28 U.S.C. § 2241,
pursuant to which he challenged the computation of his federal
sentence and, more specifically, the refusal of the federal
Bureau of Prisons (“BOP”) to designate nunc pro tunc a state
facility for service of his federal sentence. Such a
designation would have had the effect of crediting against
Mangum’s previously imposed federal sentence the time he spent
in state prison on a subsequently imposed state sentence. And
indeed, it is undisputed that the state sentencing judge, who
imposed a sentence after the federal judge had imposed a
sentence, desired exactly that result. The district court
granted summary judgment in favor of appellee, the warden of
Mangum’s federal correctional institution, reasoning that the
BOP had (1) correctly and appropriately calculated and executed
Mangum’s federal sentence and (2) permissibly exercised its
discretion in denying a nunc pro tunc designation.
For the reasons explained within, although we find no error
in the district court’s analysis of the BOP’s sentencing
calculation, we conclude that the district court overlooked a
two-pronged flaw in the BOP’s exercise of its broad discretion
in denying Mangum’s requested nunc pro tunc designation.
Accordingly, as we conclude that the BOP abused its discretion,
3
we affirm the judgment in part, vacate in part, and remand the
petition to the district court with instructions that the court
remand Mangum’s request for a nunc pro tunc designation to the
BOP for further consideration.
I.
The facts underlying Mangum’s serial arrests, convictions,
and sentencings are undisputed.
Mangum was arrested by Oklahoma state authorities on drug
charges on February 9, 2006, and released on bond five days
later on February 14, 2006. On February 27, 2006, he was
indicted for conspiracy to distribute cocaine base by a federal
grand jury in the Middle District of North Carolina based on
substantially the same conduct giving rise to his state drug
charges. The state drug charges were dismissed, and a federal
arrest warrant issued, but was not executed, at about that time;
Mangum remained at liberty.
Several months later, on June 14, 2006, Mangum was
rearrested by Oklahoma state authorities and charged with felony
assault and battery with a dangerous weapon, misdemeanor
possession of a fictitious driver’s license, misdemeanor
resisting an officer, and misdemeanor obstructing an officer.
On August 23, 2006, a federal magistrate judge in North
Carolina issued a writ of habeas corpus ad prosequendum
requesting that Oklahoma transfer Mangum to federal custody for
4
proceedings in North Carolina, and Mangum shortly appeared in
the Middle District of North Carolina to answer the charges
there. On November 8, 2006, Mangum pled guilty in federal court
to conspiracy to distribute cocaine base. He was sentenced on
May 16, 2007, to 262 months’ imprisonment and a five-year term
of supervised release. Neither in its oral pronouncement of
sentence nor in its written judgment did the district court
state whether Mangum’s federal sentence was to be served
concurrently with or consecutively to any other sentence,
including his yet-to-be-imposed state sentence in Oklahoma. 1
On October 27, 2007, federal authorities returned Mangum to
Oklahoma for continuation and completion of the state
proceedings arising from his June 14, 2006 arrest. On December
3, 2007, Mangum pled guilty to all four charges then pending
against him. On December 5, 2007, a state judge sentenced
Mangum to terms of imprisonment of ten, seven, one, and one
year(s), respectively, as to each of the four charges, and
specifically ordered that the state sentences run concurrently
with each other and with the previously imposed North Carolina
federal sentence. Thereafter, Mangum remained in the custody of
Oklahoma while serving his state sentences. He was paroled to a
1
Indeed, the record before us lacks any evidence as to
whether the federal sentencing court was even aware that Mangum
might have been facing a state sentence after he was sentenced
in federal court.
5
federal detainer on January 13, 2011, when, according to the
BOP, he commenced the actual service of his federal sentence in
a BOP facility.
On January 3, 2013, at Mangum’s request, the BOP analyzed
whether to designate, nunc pro tunc, the Oklahoma prison as the
place for service of Mangum’s federal sentence pursuant to 18
U.S.C. § 3621. 2 See Barden v. Keohane, 921 F.2d 476 (3d Cir.
1990). As part of its analysis, the BOP sought to contact
Mangum’s federal sentencing court in the Middle District of
2 Section 3621(b) provides in relevant part as follows:
(b) Place of imprisonment.--The Bureau of Prisons
shall designate the place of the prisoner’s
imprisonment. The Bureau may designate any available
penal or correctional facility that meets minimum
standards of health and habitability established by
the Bureau, whether maintained by the Federal
Government or otherwise and whether within or without
the judicial district in which the person was
convicted, that the Bureau determines to be
appropriate and suitable, considering--
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the
prisoner;
(4) any statement by the court that imposed the
sentence--
(A) concerning the purposes for which the
sentence to imprisonment was determined to be
warranted; or
(B) recommending a type of penal or correctional
facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2) of
title 28.
18 U.S.C. § 3621(b).
6
North Carolina to inquire whether the court intended that the
federal sentence should be treated as concurrent with or
consecutive to the later imposed Oklahoma sentence. See supra
note 2 (quoting 18 U.S.C. § 3621(b)(4)). For reasons not
appearing in the record before us, the North Carolina federal
district court judge never responded to the BOP. Thereafter,
upon its review of the three (out of the five) statutory factors
it thought relevant to a request for nunc pro tunc relief for an
inmate such as Mangum, i.e., one who had completed his state
sentence entirely and had been transferred to federal custody,
the BOP declined to grant the nunc pro tunc designation of the
Oklahoma state facility as the place Mangum would commence
service of his federal sentence. In so doing, the BOP reasoned
in part as follows:
Regarding factor (4), the federal Judgment was silent
on whether your sentence should run consecutively or
concurrently to any other sentence. Pursuant to Title
18 U.S.C. § 3584(a), “Multiple terms of imprisonment
imposed at different times run consecutively unless
the court orders that the terms are to run
concurrently.”
J.A. 61. Thus, the BOP’s sentencing computation, coupled with
its refusal to grant nunc pro tunc relief, effectively
determined that the previously imposed federal sentence would be
served consecutively to the later imposed state sentence, and
this notwithstanding the clearly expressed intent of the state
7
sentencing court that its sentence be served concurrently with
the federal sentence.
* * * * *
On October 24, 2013, Mangum, acting pro se, filed the
instant petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in the Eastern District of North Carolina, where
he was being housed by the BOP. His petition sought credit, on
the basis of several distinct theories, against his federal
sentence for the time he spent serving his state sentence—from
June 14, 2006 to January 13, 2011. Appellee, the warden of the
BOP facility where Mangum is serving his sentence, filed a
motion for summary judgment, which the district court granted in
a thorough memorandum and order filed on December 29, 2014.
Mangum filed a timely notice of appeal on January 27, 2015, and
we appointed counsel and calendared the case for oral argument.
We have jurisdiction pursuant to 28 U.S.C. § 2253.
II.
Having had the benefit of comprehensive briefing by counsel
appointed to represent Mangum 3 and counsel for the warden, we
conclude, with the exception noted below, that the district
court correctly denied relief on Mangum’s claims relating to
3 The panel expresses its gratitude for the excellent
representation provided by appointed counsel, which has greatly
aided this Court in its resolution of this appeal.
8
calculation and execution of his sentence, and we affirm the
judgment in part for the reasons stated by the district court.
Mangum v. Warden, No. 5:13-hc-02227-FL (E.D.N.C. Dec. 29, 2014).
We discern legal error, however, and hence an abuse of
discretion, cf. United States v. Rybicki, 96 F.3d 754, 757 (4th
Cir. 1996), in the BOP’s stated basis for its refusal to grant
Mangum nunc pro tunc relief. Specifically, we hold that, in its
consideration of the fourth statutory factor under § 3621(b)
(“any statement by the court that imposed the sentence”), the
BOP misapplied 18 U.S.C. § 3584(a). 4 That is, in the face of the
federal sentencing judge’s silence as to the court’s intention,
the BOP invoked a presumption that the unelaborated federal
sentence should be deemed to run consecutively to the later
imposed state sentence, quoting the following language from
§ 3584(a): “Multiple terms of imprisonment imposed at different
4 Section 3584(a) provides in pertinent part as follows:
If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively . . . .
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).
9
times run consecutively unless the court orders that the terms
are to run concurrently.”
We conclude that the presumption relied on was inapplicable
because, as the Supreme Court has clarified,
[t]he first subsection of [§ 3584(a)], which says when
concurrent and consecutive sentences may be imposed,
and specifies which of those dispositions will be
assumed in the absence of indication by the sentencing
judge . . . addresses only “multiple terms of
imprisonment . . . imposed . . . at the same time” and
“a term of imprisonment . . . imposed on a defendant
who is already subject to an undischarged term of
imprisonment.” Here the state sentence is not imposed
at the same time as the federal sentence, and the
defendant was not already subject to that state
sentence [at the time of the federal
sentencing]. . . . [Accordingly,] § 3584(a) does not
cover this situation.
Setser v. United States, 132 S. Ct. 1463, 1467 (2012) (second,
third, and fourth omissions in original) (quoting § 3584(a));
accord Abdul-Malik v. Hawk-Sawyer,
403 F.3d 72, 75 (2d Cir.
2005); McCarthy v. Doe,
146 F.3d 118, 121 (2d Cir. 1998). But
see Romandine v. United States,
206 F.3d 731, 738 (7th Cir.
2000) (rejecting the Second Circuit’s reading of § 3584(a)).
The circumstances surrounding Mangum’s serial convictions and
sentencings do not fall within either of the two scenarios
contemplated by the opening sentence of § 3584(a). Accordingly,
we are constrained to agree with Mangum’s assertion that the
federal sentencing judge’s silence does not and cannot give rise
to a statutory presumption that the federal sentence should be
10
deemed intended as a consecutive sentence to the later imposed
state sentence. We reject the government’s contention that the
plain language of § 3584(a) creates a presumption, in any and
all circumstances, that multiple terms of imprisonment will run
consecutively unless expressly stated otherwise. See McCarthy,
146 F.3d at 122 (“Although our reading of the statute is based
on its plain language and common sense, we note that the
legislative history of § 3584(a) confirms our interpretation.”);
id. (discussing legislative history).
The clarity of the BOP’s error is made even more plain by a
second compelling consideration. At the time Mangum was
sentenced in the North Carolina federal court in May 2007, a
federal district judge in this circuit was powerless to impose a
federal sentence to be served consecutively to a state sentence
that had not yet been imposed. See United States v. Smith, 472
F.3d 222, 225 (4th Cir. 2006) (“The plain language of
[§ 3584(a)] does not grant a district court authority to order
that its sentence run consecutively to a future sentence.”),
abrogated in part by
Setser, 132 S. Ct. at 1466, as stated in
United States v. Obey,
790 F.3d 545, 549 (4th Cir. 2015). To be
sure, Setser later resolved a circuit split in holding that,
under § 3584(a), a district court “has authority to order that
the federal sentence be consecutive to an anticipated state
sentence that has not yet been imposed,”
see 132 S. Ct. at 1466.
11
Nonetheless, we are confident that any definition of an
arbitrary and capricious determination by an administrative
agency such as the BOP would include within it the agency’s
invocation of a presumed intention on the part of a federal
sentencing judge to do that which he was powerless to do under
binding circuit precedent at the time he imposed a sentence. 5 In
this case, one might reasonably expect the BOP to exercise its
discretion to weigh heavily what the state judge did say rather
than what the federal judge did not and could not say.
III.
For the reasons set forth, we affirm in part, vacate in
part, and remand. Upon remand, the district court shall return
this matter to the BOP so that the agency may give plenary
consideration to Mangum’s request for nunc pro tunc designation
of the Oklahoma state facility as the place for service of his
federal sentence. In considering the request, the BOP shall
invoke no presumption under 18 U.S.C. § 3584(a) and shall fully
evaluate all relevant factors under 18 U.S.C. § 3621(b) in a
fashion consistent with the views expressed in this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
5 We have considered the government’s supplemental
authority, United States v. Butler, Nos. 15-4201, 15-4205, 15-
4215, 2015 WL 7888398 (4th Cir. Dec. 4, 2015) (unpublished) (per
curiam), and we find nothing in that non-precedential case that
bears persuasively on the issues presented herein.
12
