                                                                  NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________
                                      No. 14-4058
                                     _____________


                                ANTHONY BECKHAM,
                                            Appellant
                                       v.
                            UNITED STATES OF AMERICA
                                     _____________


                     On Appeal from the United States District Court
                              for the District of New Jersey
                                   (No. 3-12-cv-04817)
                      District Judge: Honorable Peter G. Sheridan

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 18, 2015


             Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.
                                 (Filed: October 5, 2015)
                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge





 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Anthony Beckham appeals the District Court’s denial of his motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2241. For the reasons that follow, we

will affirm.

                                             I.

       We write exclusively for the parties and therefore set forth only those facts that are

necessary to our disposition. On March 5, 2006, Beckham was arrested by the Jersey

City Police Department and charged in New Jersey state court with weapons-based

offenses. He was charged with aggravated assault after an incident that took place on

June 2, 2006, in which he assaulted correctional officers while at the Hudson County Jail.

On July 20, 2006, while these state charges were pending, he was indicted by a grand

jury in the District of New Jersey for a violation of 18 U.S.C. § 922(g).

       On September 6, 2006, the federal government took temporary custody of

Beckham from the state of New Jersey pursuant to a writ of habeas corpus ad

prosequendum. On May 14, 2007, Beckham pleaded guilty to one count of violating 18

U.S.C. § 922(g). On October 31, 2007, he was sentenced by the United States District

Court for the District of New Jersey to a term of 86 months of imprisonment followed by

three years of supervised release (the “Federal Sentence”).

       Beckham was then returned to New Jersey state custody. On November 16, 2007,

he was sentenced in state court to five years of imprisonment (the “State Sentence”). The

state court judgment of conviction provided that Beckham’s State Sentence would be

served “concurrent to . . . federal sentence.” On August 31, 2012, Beckham completed


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serving his State Sentence and was transferred to federal custody to serve his Federal

Sentence.

       Beckham filed an administrative grievance challenging the Bureau of Prisons

(“BOP”) calculation of the Federal Sentence and requesting that the BOP nunc pro tunc

designate the facility in which he had served his State Sentence as the facility in which he

would also serve his Federal Sentence. This designation would have allowed the two

sentences to run concurrently instead of consecutively. On March 1, 2013, the BOP

denied this request, explaining in a letter that it had considered the relevant factors in

BOP Program Statement 5160.06 and 18 U.S.C. § 3621(b) and had determined that a

nunc pro tunc designation was not appropriate given Beckham’s criminal history and the

nature of his offenses. In its explanation, the BOP also noted that there is a presumption

that terms of imprisonment imposed at different times run consecutively unless the court

orders otherwise, and here the Federal Sentence did not specify that it was to run

concurrently.

       On August 2, 2012, Beckham filed a motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. He argued that the BOP had abused its discretion in

denying him a nunc pro tunc designation. The District Court held oral argument on the

motion and ultimately denied the petition. It first found that the motion should be

construed as a petition filed under 28 U.S.C. § 2241 (rather than § 2255) because

Beckham challenged only the execution, as opposed to the validity, of his sentence. It

further found that the BOP had not abused its discretion in denying Beckham’s request.


                                              3
       Beckham timely appealed.

                                             II.1

       Beckham challenges the District Court’s denial of his motion and determination

that the BOP did not abuse its discretion in denying his application for a nunc pro tunc

designation. Under 18 U.S.C. § 3585(b), a federal inmate shall receive credit against his

federal sentence for “any time he has spent in official detention prior to the date the

sentence commences,” unless that time has been “credited against another sentence.”

Here, Beckham does not dispute that he received credit for the time he spent in state

custody against his State Sentence.

       Beckham alleges that he is also entitled to receive this credit against his Federal

Sentence because the state court judgment states that he was to serve his State Sentence

concurrently with any Federal Sentence. Under 18 U.S.C. § 3584(a), there is a

presumption that “[m]ultiple terms of imprisonment imposed at different times run

consecutively unless the court orders that the terms are to run concurrently.” Here, the

federal sentencing judge made no such pronouncement and neither the BOP nor District

Court are bound by the state court’s recommendation that Beckham serve his sentences

concurrently. Barden v. Keohane, 921 F.2d 476, 478 n.4 (3d Cir. 1990) (“[N]either the




1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 2241, and we have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We “exercise plenary review
over the District Court’s legal conclusions and apply a clearly erroneous standard to its
findings of fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam).
We review the BOP’s denial of a nunc pro tunc designation for an abuse of discretion.
Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990).
                                             4
federal courts nor the [BOP] are bound in any way by the state court’s direction that the

state and federal sentences run concurrently.”).

       The District Court found that the BOP reviewed the relevant factors under 18

U.S.C. § 3621(b). It held that the BOP did not abuse its discretion in denying Beckham’s

application for a nunc pro tunc designation given the nature of Beckham’s offenses, his

criminal history, and the lack of a statement from the federal court to overcome the

statutory presumption that the sentences run consecutively. We agree that the BOP did

not abuse its broad discretion in denying Beckham’s application and hold that the District

Court did not err in denying Beckham’s petition.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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