Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2005

Brown v. Yates
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2298




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"Brown v. Yates" (2005). 2005 Decisions. Paper 214.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 04-2298
                                 ________________

                                 ARTURO BROWN,
                                           Appellant

                                          v.

                                  STAN A. YATES

                         _____________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civ. No. 03-cv-01278)
                     District Judge: Honorable James M. Munley
                   _______________________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                             NOVEMBER 14, 2005
         Before: BARRY, STAPLETON AND GREENBERG, Circuit Judges.


                              (Filed November 18, 2005)
                              ______________________

                                    OPINION
                             _______________________


PER CURIAM

      On May 14, 1997, Arturo Brown was sentenced in a New York state court to 1 to

3 years in custody and a 6-month suspended license. On December 2, 1997, he was

taken into federal custody on a writ of habeas corpus ad prosequendum to answer federal
charges in the Eastern District of New York. On August 27, 1999, after pleading guilty

to the federal charges, Brown was sentenced to a 97-month term of imprisonment. The

sentencing court ordered that the sentence “shall run concurrently to the sentence

defendant received on May 14, 1997 in the related New York State case.” Judgment at 2.

After the federal sentencing, New York authorities informed the Bureau of Prisons that

Brown would have been conditionally released from his state prison term on February

26, 1999, prior to the imposition of his federal sentence.

       The Bureau of Prisons has given Brown credit for pre-trial detention from

February 26, 1999, through August 27, 1999. Brown filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241, claiming that, because his related federal and state

sentences were intended to run concurrently, he should instead receive credit or an

adjustment for the time he served from May 14, 1997, to August 27, 1999. The District

Court denied his petition. Brown appeals.

       Despite Brown’s transfer from FCI Allenwood in White Deer, Pennsylvania to

McCreary USP in Pine Knot, Kentucky after he filed his habeas petition, we retain

jurisdiction over Brown’s appeal. See Rumsfeld v. Padilla, 

, 2721

(2004); Ex parte Endo, 

, 307 (1944).

       The District Court’s order will be affirmed. Pursuant to § 5G1.3(b) of the U.S.

Sentencing Guidelines, a federal sentence imposed in a case related to a state conviction

can run “fully or retroactively concurrently, not simply concurrently with the remainder


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of the defendant’s undischarged sentence.” Ruggiano v. Reish, 

, 128 (3d

Cir. 2002). When imposing Brown’s sentence, the sentencing court acted under the

belief that Brown remained in primary state custody. See 

(holding that “[a]

prisoner detained pursuant to a writ ad prosequendum is considered to remain in the

primary custody of the first jurisdiction unless and until the first sovereign relinquishes

jurisdiction over the person”). However, the sentencing court’s intent to impose Brown’s

federal sentence either fully or retroactively concurrently with his state sentence is not

apparent from the sparse record before this Court. Although the sentencing court

ordered that Brown’s federal sentence “shall run concurrently” to his state sentence, the

court did not specify that Brown was entitled to credit for time served, as in other cases

in which courts have imposed retroactively concurrent sentences. See 

; Rios v. Wiley, 

, 267-68, 271 (3d Cir. 2000). The

sentencing court did not otherwise indicate its intent, as by making an adjustment to

Brown’s sentence using the suggested methodology set forth in the application notes of

the U.S. Sentencing Guidelines. See U.S. Sentencing Guidelines § 5G1.3 app. (b).1

       Furthermore, any intent to impose a concurrent sentence could not be realized.

Brown, who completed serving his state sentence on February 26, 1999, was no longer


       1
       Although sentencing courts in the Second Circuit later were directed to use the
suggested methodology to provide a concurrent sentence, see United States v. Fermin,

, 355 (2d Cir. 1999) (per curiam), the method was advisory at the time of
Brown’s sentencing, see United States v. Whitely, 

, 89 (2d Cir. 1995).


                                              3
subject to an undischarged term of imprisonment when he was sentenced for federal law

violations on August 27, 1999. Cf. United States v. Pray, 

, 361 (3d Cir.

2004). See also United States v. Cole, 

(8th Cir. 2005) (holding that a one

sovereign relinquishes primary jurisdiction to another at the expiration of a prisoner’s

sentence). Therefore, as the District Court determined without explicitly considering the

section 5G1.3(b) issue, Brown’s federal sentence commenced when it was imposed on

August 27, 1999. The Bureau of Prisons’ rejection of Brown’s application for credit for

time served beyond the time he served in pretrial detention from February 26, 1999, to

August 27, 1999, was proper for the reasons set forth in the District Court’s opinion.

       Accordingly, we will affirm the District Court’s order denying Brown’s habeas

petition.




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