Judges: Per Curiam
Filed: Jun. 21, 2007
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued June 6, 2007 Decided June 21, 2007 Before Hon. KENNETH F. RIPPLE, Circuit Judge Hon. MICHAEL S. KANNE, Circuit Judge Hon. TERENCE T. EVANS, Circuit Judge No. 06-2789 KIRK E. BINTZLER, Appeal from the United States Petitioner-Appellant, District Court for the Eastern District of Wisconsin. v. No. 00 C 1309 ALBERTO R. GONZALES, U
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued June 6, 2007 Decided June 21, 2007 Before Hon. KENNETH F. RIPPLE, Circuit Judge Hon. MICHAEL S. KANNE, Circuit Judge Hon. TERENCE T. EVANS, Circuit Judge No. 06-2789 KIRK E. BINTZLER, Appeal from the United States Petitioner-Appellant, District Court for the Eastern District of Wisconsin. v. No. 00 C 1309 ALBERTO R. GONZALES, Un..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 6, 2007
Decided June 21, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2789
KIRK E. BINTZLER, Appeal from the United States
Petitioner-Appellant, District Court for the
Eastern District of Wisconsin.
v.
No. 00 C 1309
ALBERTO R. GONZALES,
United States Attorney General, and Thomas J. Curran,
HARLEY G. LAPPIN, Director of the Judge.
United States Bureau of Prisons,
Respondents-Appellees.
ORDER
A dozen years ago, in an unpublished order, we rejected Kirk Bintzler’s challenge to a
75-month sentence he received in 1994 in the United States District Court for the Eastern
District of Wisconsin. United States v. Bintzler, 56 F.3d 67 (7th Cir. 1995). The sentencing
judge was the Honorable Thomas J. Curran. Having properly exhausted his administrative
remedies, see United States v. Wilson,
503 U.S. 329, 335-36 (1992), Mr. Bintzler is back today
in this federal habeas corpus action (28 U.S.C. § 2241), arguing that he has served his sentence
and is entitled to be released from custody. The government, acting through the Attorney
General and the Bureau of Prisons (BOP), says not so fast--Bintzler’s sentence concludes on
June 29, 2008.
No. 06-2789 2
To understand this dispute, we recite, in painful detail, the chronology of events that
brought us to this point.
March 16, 1994: Kirk E. Bintzler is arrested by the Milwaukee Police
Department and placed in custody at the Milwaukee
County Jail.
March 21, 1994: Bintzler is charged in Milwaukee County Circuit Court,
Case No. F-940965, with theft by fraud and making false
statements in applications for certificates of title; cash bail
is set and Bintzler is remanded to the Milwaukee County
Jail; the case is tabbed to then-Milwaukee County Circuit
Court Judge Diane S. Sykes, now a judge on this court.
June 14, 1994: Bintzler is indicted in the United States District Court for
the Eastern District of Wisconsin on two counts of felon in
possession of a firearm, Case No. 94-CR-87; the indictment
involves facts relating to his arrest on the state charges.
July 1, 1994: On a writ of habeas corpus ad testificandum procured by
the United States, Bintzler is arraigned on the federal
indictment; a federal detainer is placed upon him at the
Milwaukee County Jail by a magistrate judge.
July 21, 1994: On another writ of habeas corpus ad testificandum
procured by the United States, Bintzler appears in federal
court for an evidentiary hearing on a motion to suppress
evidence.
August 9, 1994: Bintzler again appears in federal court on a writ of habeas
corpus ad testificandum and enters a plea of guilty to one
count of the indictment.
September 12, 1994: Back in state court, Judge Sykes releases Bintzler from
custody without bail based upon the state’s failure to
comply with his speedy trial right; Bintzler, however, is not
released and continues to be held in the Milwaukee County
Jail.
November 9, 1994: Bintzler appears, via a writ of habeas corpus ad
testificandum, before Judge Curran in federal court and
is sentenced to a term of 75 months imprisonment. In
No. 06-2789 3
imposing the sentence, Judge Curran points to Bintzler’s
criminal record, which includes convictions for armed
robbery, fourth degree sexual assault, and a prior charge of
felon in possession of a firearm. At the hearing, Bintzler
inquires about credit for 237 days served based upon his
arrest on March 16, 1994; both the government and the
probation officer represent that Bintzler is in state custody,
which Bintzler denies; Judge Curran indicates that
additional investigation is needed, and that if the BOP
cannot resolve the dispute, then he will review the matter;
Bintzler is returned to the Milwaukee County Jail.
November 18, 1994: A written judgment is entered by the district court that
recommends that Bintzler be imprisoned at the Federal
Correctional Institution in Oxford, Wisconsin.
November 22, 1994: The United States Marshals place a federal detainer upon
Bintzler at the Milwaukee County Jail, indicating that
“When the subject is to be released from your custody,
please notify this office at once so that we may assume
custody if necessary.”
November 28, 1994: The trial of the state case is adjourned; Judge Sykes
indicates to Bintzler her understanding that he is in federal
custody and will be “sent back.”
June 20, 1995: Bintzler is convicted after a state court trial and sentenced
to an aggregate term of 15 years, to run consecutive to the
federal sentence Judge Sykes believes he is then serving.
In passing sentence, Judge Sykes notes that Bintzler is a
career criminal and a danger to the community. Judge
Sykes asserts her belief that the federal sentence will be
served before the state sentence commences.
June 21, 1995: The United States Marshals Service communicates to the
Milwaukee County Jail that they understand Bintzler to be
the state’s prisoner “until all state charges/sentences have
been handled.”
June 22, 1995: Judge Sykes issues an order modifying the judgment of
conviction in the state case to delete the reference to the
state sentence running consecutive to the federal sentence
No. 06-2789 4
so that Bintzler can be immediately transferred to the
Wisconsin State Prison; the judge asserts that “By
operation of federal law and pursuant to the federal
detainer, Bintzler’s federal sentence will automatically
follow the service of his sentence in this matter.”
June 26, 1995: Bintzler is transferred to a state penal institution to begin
serving his sentence.
April 15, 1999: A state prison registrar writes to Judge Curran about
Bintzler’s sentence and credit so that his “programming
needs may be adequately addressed and the parole
commission informed of the structure (of his sentence).”
May 5, 1999: Judge Curran indicates that Bintzler was in state custody at
the time of his federal sentencing and returned there after
the sentencing, with a federal detainer placed upon him; the
judge asserts that while he could not make his sentence
consecutive to the state sentence at the time of the federal
sentencing, the federal sentence is to run consecutive to the
state sentence.
August 16, 1999: Bintzler asks the Bureau of Prisons to exercise it’s
authority under 18 U.S.C. § 3621(b) and designate the state
facility as the place for service of his federal sentence.
September 20, 1999: The BOP informs Bintzler that his federal sentence will
commence upon completion of the state sentence.
April 20, 2004: Bintzler is released on state parole and taken into federal
custody to begin service of his federal sentence; his
projected release date is June 29, 2008.
For Bintzler, the key time period dates from his federal sentencing, November 9, 1994, to
June 1995, when he was sentenced in state court. Throughout this period, Bintzler was confined
to the Milwaukee County Jail, a state detention facility. Judge Sykes released Bintzler from state
custody on September 12, 1994, but apparently nobody got the memo, because he remained
confined there throughout his federal court proceedings, including his sentencing. Today this
would not raise an eyebrow, because the Milwaukee County Jail has a contract with the United
No. 06-2789 5
States Marshals Service to hold federal prisoners. See 18 U.S.C. § 5003(a). But no such
contract was in place in 1994; Binztler should have been held in a federal facility.1
In any event, because the BOP believed that the state maintained custody of Bintzler, it
did not believe his federal sentence commenced following its imposition by Judge Curran.
Bintzler, therefore, continued to sit in the county jail from November 1994 until June 1995
without being in official state custody and without officially serving any federal time. When
Judge Sykes issued her sentence, she assumed (reasonably) that Bintzler’s federal clock was
running and directed that his state sentence start when the former was over--in other words, that
the sentences run consecutively. But after learning that the federal marshals considered him to
be in state hands, she modified the judgment and directed that Bintzler immediately begin his
state sentence. Only when that was completed in 2004 did his federal sentence officially
commence.
The BOP later realized that a mistake occurred, so it deducted from Bintzler’s federal
sentence all of the jail time he served from his initial state arrest until the commencement of his
state sentence: 456 days. But Binztler believes this was not enough. He contends that whether
the BOP realized it or not, his federal sentence actually commenced on November 9, 1994, and
that once it realized this, the BOP should have resolved the error by designating the state facility
where he served his state sentence as “the official detention facility at which the [federal]
sentence is to be served” under 18 U.S.C. § 3585(a) in order to avoid the possibility that Bintzler
would end up serving his federal sentence in installments.
Section 3585(a) provides in full:
Commencement of sentence. A sentence to a term of
imprisonment commences on the date the defendant is received
in custody awaiting transportation to, or arrives voluntarily to
commence service of sentence at, the official detention facility
at which the sentence is to be served.
Bintzler argues that when he spent almost 8 months at the county jail between convictions he
was “in custody awaiting transportation to” the federal detention facility, and therefore his
federal sentence had commenced. In his view, because of the common law rule that a sentence
must be served continuously absent some fault of the prisoner, Dunne v. Keohane, 14 F.3d 335,
1
Bintzler not so subtly hints that this error was an intentional one perpetrated by federal
authorities, but the record suggests otherwise. At his federal sentencing, for example, the United
States and Binztler’s probation officer both described him as being in state custody, and 9 days
later the marshals felt the need to put a federal detainer on him at the county jail. Why no state
official realized the mistake at that juncture (or better yet at the time of Judge Sykes’ order in the
first place) and/or informed the federal authorities has never been explained.
No. 06-2789 6
336 (7th Cir. 1994) (“Punishment on the installment plan is forbidden.”), the BOP was required
to let his federal sentence continue even after his state sentence began--that is, to allow him to
serve both sentences at the same time.
We fail to see how Bintzler’s federal sentence can be considered to have “commenced”
in 1994, considering that all indications are that the BOP had a good faith belief that he was still
in state custody, see Binford v. United States, 436 F.3d 1252, 1256 (10th Cir. 2006), but in the
end it makes no difference, because the continuous service rule is not implicated by the BOP’s
conduct. The rule is of dubious application where the government has not intentionally sought to
delay Bintzler’s imprisonment and in any event is not violated where no postponement of the
prisoner’s release date results.
Dunne, 14 F.3d at 337. Bintzler’s counsel conceded, correctly, at
oral argument that he was not directly asserting that Bintzler spent extra time in prison as a result
of the mistake. As we have said, once it learned of the error, the BOP credited all his Milwaukee
County Jail time against his federal sentence. Although Bintzler posits that his state parole
status might have been affected by the recognition that his federal sentence was already
complete, this is too speculative a theory upon which to conclude that the BOP abused its
discretion in making its determination about the starting date for the service of his federal
sentence.
Bintzler makes one further argument. Pointing to a 2000 letter written by Judge Curran
at the solicitation of the BOP advising that “[i]t is clear . . . that the federal sentence is to run
consecutive to the state sentence,” Bintzler notes that a district court judge has no authority to
decide how a federal sentence should be served in relation to another sentence that has not yet
been imposed. See Romandine v. United States, 206 F.3d 731, 738 (7th Cir. 2000).
But under 18 U.S.C. § 3621(b), the BOP may consider a range of factors when deciding
when sentences commence and how they are served, and one of these is statements made by the
sentencing court. Judge Curran’s letter was not an order with binding legal effect, it was advice,
shared with the BOP upon its own request.
Besides, in judging whether the BOP abused its discretion, we note that both Judges
Sykes and Curran, when imposing their sentences, wanted them to be served consecutively
because both determined that Bintzler’s prior criminal record was awful. The BOP, in making
the call that it did, followed the intentions of the judges. Under these circumstances, it’s hard to
see how that call could be branded as an abuse of discretion.
The judgment of the district court is AFFIRMED.
