     Case: 12-20710      Document: 00514183554         Page: 1    Date Filed: 10/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                      No. 12-20710                                FILED
                                                                            October 4, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee

v.

ALVIN MARK EILAND,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-699-1


Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Alvin Eiland was indicted on various federal wire fraud and money
laundering charges, arising out of a fraudulent residential mortgage scheme.
He pleaded guilty and was sentenced to 48 months’ imprisonment and three
years of supervised release. Eiland was subsequently sentenced in state court
to a ten-year sentence on state law charges stemming from the same
fraudulent activity. The state court ordered that Eiland’s state sentence run


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-20710
concurrently with his prior federal sentence. The federal district court’s
sentence was silent as to whether it was to run concurrently with or
consecutively to Eiland’s state sentence.
      After he was sentenced in federal court, Eiland sent a letter to the
Federal Bureau of Prisons (“BOP”), inquiring about “how much credit he had
on his [f]ederal sentence.” The BOP interpreted Eiland’s letter as a request for
a retroactive nunc pro tunc designation that his federal sentence run
concurrently to his state sentence. In accordance with its procedures and
pursuant to Bearden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), the BOP sent a
letter to the district court, asking whether the district court had intended
Eiland’s sentence to run consecutively or concurrently to his state sentence.
The district court entered an “Order on Sentence,” stating that Eiland’s federal
sentence was to run consecutively to his state sentence. The BOP informed
Eiland that his request for nun pro tunc relief was denied. Eiland moved the
district court to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing in
part that the district court’s Order on Sentence violated his due process rights.
The district court denied the motion. Eiland now appeals, arguing that the
district court’s Order on Sentence modified his sentence without jurisdiction
and amended its final judgment in violation of his due process rights.
      18 U.S.C. § 3584(a) provides that “[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the court orders that the
terms are to run concurrently.” Thus, the “district court must specify in its
sentencing order that sentences run concurrently; otherwise, they run
consecutively.” Free v. Miles, 333 F.3d 550, 553 (5th Cir. 2003). We have
repeatedly applied the presumption of consecutiveness in circumstances where
a federal sentence predates a state sentence arising from the same conduct.
See, e.g., Hunter v. Tamez, 622 F.3d 427, 431 (5th Cir. 2010) (“[T]he district
court here offered no opinion as to whether [Defendant’s] sentences should run
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                                   No. 12-20710
consecutively or concurrently . . . accordingly, his state and federal sentences
ran consecutively, because the district court did not specify otherwise.”)
(internal quotations marks and alterations omitted) (quoting Free, 333 F.3d at
553).
        Here, the district court did not specify whether Eiland’s federal sentence
was to run concurrently or consecutively to his state sentence. Accordingly, the
presumption of consecutiveness applied to Eiland’s federal sentence at the
outset. The district court’s Order on Sentence specifying that Eiland’s sentence
was to run consecutive to his state sentence thus did not constitute a
modification of his sentence or an amendment of the district court’s final
judgment.
        Relying on Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010), Eiland
argues that a district court may not amend a final judgment in such a way as
to effectively prohibit the BOP from exercising its discretion to grant nunc pro
tunc relief. Pierce is inapposite for two reasons. First, as noted above, the
district court’s Order on Sentence did not amend its final judgment—it simply
made explicit the implicit statutory presumption of consecutiveness. Second,
the district court in Pierce ruled on the defendant’s habeas petition before the
BOP had an opportunity to make its nunc pro tunc determination. See id.
Consequently, the district court’s actions in Pierce effectively foreclosed any
opportunity for the BOP to grant relief. Here, by contrast, Eiland filed his
§ 2255 motion after the BOP denied him nunc pro tunc relief. Thus, the district
court’s denial of Eiland’s motion to vacate had no impact on the BOP’s nunc
pro tunc determination, which it made at its own discretion.
        The district court’s order is AFFIRMED.




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