                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                       November 13, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 JOHN JAY POWERS,

       Petitioner - Appellant,

 v.                                                         No. 19-1067
                                                  (D.C. No. 1:18-CV-01226-KMT)
 M.L. STANCIL,                                               (D. Colo.)

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges.
                  _________________________________

      John Jay Powers is a prisoner in the custody of the Federal Bureau of Prisons

(“BOP”). Appearing pro se, Powers filed an application under 28 U.S.C. § 2241

challenging the BOP’s computation of his sentences for numerous convictions in

multiple jurisdictions. The district court denied Powers’s application and he now

appeals.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        The parties consented to the magistrate judge conducting all proceedings,
including the entry of a final judgment. See 28 U.S.C. § 636(c).
                                 I. BACKGROUND

      On February 22, 1990, Powers was sentenced in case number 89-61-Cr-T-13

(08) in the Middle District of Florida to eighteen months’ imprisonment for

possession of a stolen motor vehicle. That same day, the court entered a separate

judgment against Powers for criminal contempt arising from his conduct in the trial

on the stolen vehicle charge and sentenced him to five and one-half months’

imprisonment. The judgment in the criminal contempt case does not state whether

the sentence should run consecutive to or concurrent with the eighteen-month

sentence.

      The next day, February 23, also in case number 89-61-Cr-T-13 (08), another

judgment was entered on two counts of bank robbery, and Powers was sentenced to

concurrent terms of 236 months’ imprisonment on each count. The judgment states

those sentences run consecutive to the sentences for possession of a stolen motor

vehicle and criminal contempt.

      Then, on March 9, in case number 89-60-Cr-T-15B, also in the Middle District

of Florida, Powers was sentenced to a total term of fifteen years’ imprisonment for

transportation of stolen vehicles, possession of a firearm by a convicted felon,

possession of an unregistered and altered firearm, interstate transportation of stolen

firearms, and possession of counterfeit security. The judgment directs the

fifteen-year sentence to run consecutive to the term of imprisonment in case number

89-61-Cr-T-13 (08). More than seventeen years later, on October 5, 2017, the

judgment in 89-60-Cr-T-15B was vacated and a new sentencing hearing was ordered.

                                           2
Approximately two months later, on December 18, 2017, Powers was resentenced to

concurrent terms of sixty-four months’ imprisonment on each count. The judgment

once again directs each sentence to run consecutive to the sentences imposed in case

number 89-61-Cr-T-13 (08).

      Next, on May 23, 1991, Powers was sentenced in the Southern District of

Indiana in case number IP 90-145-CR-01 to sixty-six months’ imprisonment for bank

robbery. The judgment directs the sentence to run consecutive to the sentences being

served by Powers in case numbers 89-61-Cr-T-13 (08) and 89-60-Cr-T-15B from the

Middle District of Florida.

      Powers escaped from custody while he was an inmate at a federal correctional

facility in New Jersey. Following his capture and subsequent conviction for escape

and transportation of a stolen vehicle, Powers was sentenced on October 1, 2001, in

case number 1:99-CR-253 in the District of New Jersey, to concurrent terms of forty-

five months’ imprisonment. The judgment provides the sentences should run

consecutive to the sentences in case numbers 89-61-Cr-T-13 (08) and 89-60-Cr-T-

15B from the Middle District of Florida; however, it is silent as to whether it should

run consecutive to or concurrent with the sentence in the Southern District of Indiana.

      Last, on December 11, 2013, Powers was sentenced in case number

4:15-cr-00647-FRZ-EJM in the District of Arizona, to thirty-three months’

imprisonment for assault on a federal officer. The judgment directs twenty months

and thirty days of the sentence to run concurrent with all four previously imposed



                                           3
sentences and twelve months and one day to run consecutive to any undischarged

terms of imprisonment.

       In the § 2241 proceedings, Powers asked the district court “to order the []BOP

to do three things[.]” R. at 359. First, “to run the . . . sentence [for criminal

contempt] in 89-61-cr-T-13B . . . concurrent with the possession of a stolen motor

vehicle count in the same case.” Id. (emphasis added). Second, “to run the sentence”

for escape and transportation of a stolen vehicle in the District of New Jersey

concurrent to the sentence in the case from the Southern District of Indiana. Id. And

last, “(if necessary) to recalculate [his] sentence(s) according to the vacation of the

entire judgment in 89-60-cr-T-15.” Id. Powers maintained that properly calculated,

he served the sentences in full on January 2, 2018, and should have been released

from custody on that date. The court considered and rejected each argument.

                            II. STANDARD OF REVIEW

       “When reviewing the denial of a habeas petition under § 2241, we review the

district court’s legal conclusions de novo and accept its factual findings unless

clearly erroneous.” al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013). Also,

we construe Powers’s pro se pleadings liberally and hold him “to a less stringent

standard than . . . pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991). “At the same time, we do not believe it is the proper function

of the . . . court to assume the role of advocate for the pro se litigant.” Id.




                                             4
                                   III. ANALYSIS

A. Concurrent Versus Consecutive

      “After a district court sentences a federal offender, the Attorney General,

through the BOP, has the responsibility for administering the sentence.” United

States v. Wilson, 503 U.S. 329, 335 (1992). Relevant here, Congress has determined

how multiple sentences of imprisonment should be treated: “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).

      The BOP has adopted a program statement to determine whether the terms of

imprisonment were imposed by the court at the same time or at different times:

             Sentences that are imposed as the result of a single trial on the
      counts within a single indictment are considered to have been imposed
      at the same time, regardless of whether they are imposed at different
      times on the same date or on a later date.

             Sentences that are imposed on the same date, or on different
      dates, based on convictions arising out of different trials, are considered
      to have been imposed at different times even if the trials arose out of the
      same indictment.

BOP PS 5880.28, ch. 1, p. 32.

      According to Powers, Program Statement 5880.28 “has been fully depleted by

the ruling in” Setser v. United States, 566 U.S. 231 (2012), Aplt. Opening Br. at 13,

which, he insists, “made clear that only the district courts have the authority to make

the consecutive-vs.-concurrent decisions,” id. at 12. To be sure, Setser reaffirmed the

                                           5
courts—not the BOP—have the discretion to impose consecutive or concurrent

sentences. 556 U.S. at 235-39. But Powers’s reliance on Setser is misplaced because

when the BOP determined the sentences imposed by the court on February 22, 1990,

for motor vehicle theft and criminal contempt in case number 89-61-Cr-T-13 (08)

were imposed at different times, it was not exercising the sentencing discretion

reserved to the courts; rather, the BOP was administering the sentence as provided in

§ 3584(a) and the Program Statement. Similarly, when the BOP determined the

sentence for escape and transportation of a stolen vehicle in case number 1:99-CR-

253 should run consecutive to the sentence in the case from the Southern District of

Indiana, the BOP was administering the sentence.

      Powers also argues the sentences imposed on February 22, 1990, in case

number 89-61-Cr-T-13 (08), should run concurrently because § 5G1.2 of the U.S.

Sentencing Guidelines (“Guidelines”) “seems to say that even sentences imposed on

different indictments, when imposed in a consolidated sentencing proceeding, are

imposed at the same time.” Aplt. Opening Br. at 13 (emphasis omitted). We agree

with the government “[§] 5G1.2 is not helpful to [Powers].” Aplee. Resp. Br. at 20.

The commentary to the 1989 Guidelines under which Powers was sentenced

provides: “This section specifies the procedure for determining the specific sentence

to be formally imposed on each count in a multiple-count case.” Powers was not

charged in a multiple count case.

      Next, Powers maintains Program Statement 5880.28 does not apply to the

criminal contempt sentence because only sentences arising from different trials are

                                          6
considered to have been imposed at different times, and there was not a separate trial

on contempt. Specifically, Powers argues “[i]t is quite a stretch to hold that a

summary finding of criminal contempt constitutes a ‘trial’ with the meaning of [BOP]

policy.” Aplt. Opening Br. at 13. Nonetheless, he concedes “[n]otwithstanding the

general rule of deference extended to legitimate exerci[s]es of agency authority, the

courts are the final authorities on statutory construction.” Id. at 14. We agree with

the district court’s construction. Although there was not a separate trial because

Powers “was held in summary contempt[,] . . . [his] conviction and sentence for

criminal contempt was part of a separate prosecution that resulted in a separate

Judgment and was [therefore] imposed at a different time within the meaning of

[Program Statement 5880.28].” R. at 372. To interpret the BOP Program Statement

as requiring an actual trial would mean, for example, a sentence imposed as a result

of a guilty plea could not have been imposed at a different time. Moreover, Powers

has not come forward with any authority that Congress intended to exclude sentences

where there was no trial from the reach of § 3584(a).

      Last, there is no merit to Powers’s argument his sentence for escape and

transportation of a stolen vehicle in case number 1:99-CR-253 in the District of

New Jersey, should be interpreted to run concurrent with his sentence in the Southern

District of Indiana because the court was aware of the undischarged Indiana sentence

and chose not to run its sentence consecutively. There is no record evidence to

support this claim. And because this sentence plainly was imposed at a different

time, the district court properly concluded the sentences were to run concurrently.

                                           7
      We affirm the district court’s decision the BOP properly determined Powers’s

criminal contempt sentence should run consecutive to the sentence for motor vehicle

theft and his sentence for escape and transportation of a stolen vehicle should run

consecutive to his sentence for bank robbery in the Southern District of Indiana.

B. The October 5, 2017 Order to Vacate the Sentence

      Powers also claimed in his habeas application the BOP erred by failing to

recalculate his sentences immediately after the judgment in case number 89-60-Cr-T-

15B was vacated on October 5, 2017. Had the BOP done so, Powers argued he

would have received a more favorable sentence: “[T]he sentencing court . . . would

have sentenced petitioner to ‘time served’ on 18 December 2017.” R. at 101.

Alternatively, Powers argued the new sentence imposed on December 18, 2017, “was

not ordered to be served consecutive to any sentence other than 89-61-CR-T-13,” id.

at 102, and therefore should be interpreted as concurrent to all other undischarged

sentences.

      Powers cannot raise a claim he would have received a more favorable sentence

in an application under § 2241; instead, a motion under 28 U.S.C. § 2255 is “[t]he

exclusive remedy for testing the validity of a judgment and sentence, unless it is

inadequate or ineffective.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)

(internal quotation marks omitted). And we have considered and rejected his second

argument under the plain wording of § 3584(a), which provides: “Multiple terms of

imprisonment imposed at different times run consecutively unless the court orders

that the terms are to run concurrently.” § 3584(a).

                                           8
      Powers also claimed in the district court that “[h]ad the []BOP re-calculated

[his] sentence after the 5 October 2017 order vacating the judgment and sentence in

89-60Cr-T-(27)” and before he was resentenced in December 2017, his other

sentences “would have automatically . . . discharged.” R. at 114. But Powers has

failed to present any evidence or authority to support this claim.

                                 IV. CONCLUSION

      For the foregoing reasons, the judgment of the district court is affirmed.


                                            Entered for the Court


                                            Terrence L. O’Brien
                                            Circuit Judge




                                           9
