CLD-289                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-2967
                                      ___________

                           JUAN C. RAMOS-RODRIGUEZ,
                                           Appellant

                                            v.

                             WARDEN, FCI FORT DIX
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. Civil No. 10-02904)
                      District Judge: Honorable Noel L. Hillman
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 15, 2011

               Before: RENDELL, FUENTES and SMITH, Circuit Judges

                            (Opinion filed: October 3, 2011 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Juan C. Ramos-Rodriguez appeals pro se from an order dismissing his petition

filed under 28 U.S.C. § 2241. Because no substantial question is presented by this

appeal, we will summarily affirm the order of the District Court.
                                   I.     Background

      As the parties are familiar with the background of this case, we will only

summarize those facts relevant to the disposition of this appeal. Ramos-Rodriguez was

arrested in Puerto Rico on May 4, 2001, and detained under the laws of the

Commonwealth of Puerto Rico on charges for attempted murder, auto theft, and weapons

and drug violations. On September 12, 2001, pursuant to a writ of habeas corpus ad

prosequendum, Ramos-Rodriguez was temporarily transferred to federal custody to face

federal charges. He pleaded guilty to conspiracy to distribute heroin, cocaine, cocaine

base, and marijuana in violation of 21 U.S.C. § 846. He was sentenced on November 18,

2002, to a term of imprisonment of 120 months. 1

      Ramos-Rodriguez pleaded guilty to two counts each of weapons and drug

violations in the Superior Court of Puerto Rico. On February 23, 2003, he was sentenced

to a term of imprisonment of seven years, which the Commonwealth Judge indicated was

to run concurrently with the federal sentence. Ramos-Rodriguez was returned to the

custody of the Commonwealth of Puerto Rico on June 17, 2003. He completed his

Puerto Rican sentence on May 2, 2005, and was released to federal custody on May 4,

2005, to begin serving his federal sentence. Upon taking custody of Ramos-Rodriguez,

the Federal Bureau of Prisons (“BOP”) calculated his federal sentence to commence on

May 2, 2005, with a projected release date of January 16, 2014.



      1
        A Commonwealth sentence had yet to be imposed and thus the Federal District
Judge did not state a view on concurrency or consecutiveness.

                                            2
      Through the administrative process, in 2006, Ramos-Rodriguez sought to receive

credit to his federal sentence for the time he served in Commonwealth prison through

BOP’s discretionary authority under 18 U.S.C. § 3621. BOP denied this request, stating

that “[u]nder [18 U.S.C.] § 3585(b), the period [of time for which he seeks credit] cannot

be awarded to the federal sentence.” 2 BOP’s responses to his request did not discuss 18

U.S.C. § 3621(b).

      In 2008, Ramos-Rodriguez filed a § 2241 petition, arguing that BOP has the

discretionary authority to designate, nunc pro tunc, the prison in which he served his

Commonwealth sentence as the place of federal confinement, and requested the District

Court to compel BOP to consider him for this designation. He also argued that his

federal sentence should be credited with time served on his Commonwealth sentence to

comport with the Commonwealth Judge’s order that his sentences run concurrently.

While Ramos-Rodriguez’s § 2241 petition was pending, in October 2010, BOP reviewed

and denied his request for a nunc pro tunc designation pursuant to the factors under 18

U.S.C. § 3621. The District Court denied his § 2241 petition, noting that BOP considered

his request and finding that BOP did not abuse its discretion. Ramos-Rodriguez timely

appealed.

      2
          18 U.S.C. § 3585(b) provides that

      A defendant shall be given credit toward the service of a term of
      imprisonment for any time he has spent in official detention prior to the
      date the sentence commences--
      (1) as a result of the offense for which the sentence was imposed; or
      (2) as a result of any other charge for which the defendant was arrested
      after the commission of the offense for which the sentence was imposed;
      that has not been credited against another sentence.
                                              3
                                     II.   Discussion

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

conclusions of law. See Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1990). Insofar

as BOP reviewed Ramos-Rodriguez’s request for nunc pro tunc designation, our review

is limited to whether BOP abused its discretion. Id. at 478.

       BOP has the statutory authority under 18 U.S.C. § 3621 to nunc pro tunc designate

the place of confinement for a prisoner’s federal sentence. Barden, 921 F.2d at 483.

Thus, BOP can designate the Commonwealth prison as the official facility for service of

Ramos-Rodriguez’s federal sentence, thereby allowing his Commonwealth and federal

sentences to run concurrently. See id. at 478-79. We have held that a petitioner is

entitled to have his request for a nunc pro tunc designation examined by BOP under §

3621(b). Id. at 483. However, BOP has broad discretion in determining this designation.

Id.

       When Ramos-Rodriguez filed his § 2241 petition, it appears that BOP violated our

holding in Barden by failing to address his request for nunc pro tunc designation.

However, prior to the District Court’s disposition of Ramos-Rodriguez’s § 2241 petition,

BOP reviewed his nunc pro tunc designation request and denied it based on factors under

§ 3621(b). Therefore, Ramos-Rodriguez’s request to compel BOP to consider him for

nunc pro tunc designation is moot.

       Upon review of the record, we agree with the District Court that BOP did not

abuse its discretion in denying his request for nunc pro tunc designation. BOP reviewed

Ramos-Rodriguez’s request under the five factors stated in § 3621(b), and denied the

                                             4
request based on the nature and circumstances of the offense, the history and

characteristics of the prisoner, and the silence of the federal district court on whether his

sentence was to be concurrent.

       In conducting its analysis pursuant to § 3621(b), BOP sent a letter to the Federal

District Judge, inquiring about his position on the issue of concurrency. The Federal

District Judge did not respond to BOP’s inquiry. BOP’s interpretation of the Federal

District Judge’s silence as a factor against concurrency was not unreasonable. Cf. 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.”). Ramos-

Rodriguez argues that BOP should have granted the nunc pro tunc designation to fulfill

the wishes of the Commonwealth Judge. BOP, however, is not bound in any way by the

Commonwealth Judge’s determination that the state and federal sentences are to run

concurrently. Barden, 921 F.2d at 478 n.4 (citing U.S. Const. art. VI, cl. 2).

       BOP also noted that Ramos-Rodriguez’s role in the conspiracy to distribute

heroin, cocaine, cocaine base, and marijuana was that of an “enforcer,” that he routinely

carried weapons during the course of the conspiracy, and that he was charged with

murder.    It appears that BOP duly considered Ramos-Rodriguez’s nunc pro tunc

designation request, weighed the factors, and did not abuse its discretion in exercising its

broad discretion under § 3621(b). See Barden, 921 F.2d at 483. The District Court,

therefore, properly denied Ramos-Rodriguez’s petition under 28 U.S.C. § 2241.

Accordingly, we will summarily affirm the District Court’s order.



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