                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2006

Roman v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4280




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Recommended Citation
"Roman v. Nash" (2006). 2006 Decisions. Paper 864.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/864


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4280


                               ADALBERTO ROMAN,
                                            Appellant

                                           v.

                 JOHN NASH, Warden/Superintendent FCI-Schuylkill;
                           BUREAU OF PRISONS;
                   PA. BOARD OF PROBATION AND PAROLE


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           D.C. Civil Action No. 03-cv-1451
                              (Honorable Edwin M. Kosik)


                                 Argued April 24, 2006

              Before: SCIRICA, Chief Judge, NYGAARD, Circuit Judge,
                            and YOHN, District Judge*

                                 (Filed June 21, 2006)


LINDA S. SHEFFIELD, ESQUIRE (ARGUED)
10 Glenlake Parkway, Suite 130
Atlanta, Georgia 30328
       Attorney for Appellant




   *
    The Honorable William H. Yohn, Jr., United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
STEPHEN R. CERUTTI, II, ESQUIRE (ARGUED)
D. BRIAN SIMPSON, ESQUIRE
Office of United States Attorney
220 Federal Building and Courthouse
228 Walnut Street, P.O. Box 11754
Harrisburg, Pennsylvania 17108
       Attorneys for Appellees


                                OPINION OF THE COURT


SCIRICA, Chief Judge.

       Adalberto Roman appeals the District Court’s denial of his petition for habeas

corpus. We have jurisdiction under 28 U.S.C. § 1291. “[W]e exercise plenary review

over the District Court’s legal conclusions and review its findings of fact for clear error.”

Cristin v. Brennan, 281 F.3d 404, 409 (3d Cir. 2002). We will affirm.

       Roman is a federal prisoner who seeks five years of credit toward his federal

sentence for time served in the custody of the State of Pennsylvania. Within a span of

just over a year, Roman was convicted and sentenced four separate times, three times in

Pennsylvania state court and once in federal court. On October 4, 1990, Roman was

sentenced in the Philadelphia Court of Common Pleas to an indeterminate sentence of

five to ten years for voluntary manslaughter (“the first state sentence”). On March 8,

1991, he was received into the secondary custody of federal authorities via a writ of

habeas corpus ad prosequendum, and, on November 13, 1991, he was sentenced in the

United States District Court for the Eastern District of Pennsylvania to a sentence of 120

months for conspiracy to distribute heroin and continuing a criminal enterprise (“the

                                              2
federal sentence”). The District Court ordered Roman’s federal sentence to “run

consecutive to any sentence defendant is presently serving.” Roman was returned to his

primary custodian, the Pennsylvania Department of Corrections, on November 18, 1991.

On November 26, 1991, Roman was sentenced in the Philadelphia Court of Common

Pleas to five to ten years for possession of instruments of a crime and aggravated assault

(“the second state sentence”). The court ordered this sentence to run consecutive to the

state sentence imposed on October 4, 1990. The court also expressed its intent that this

sentence “be served separate and apart from the Federal sentence.” (Appellant’s May 16,

2006 Letter at 24.) On December 16, 1991, Roman was sentenced in the Philadelphia

Court of Common Pleas to an indeterminate sentence of ten to twenty years for

possession with intent to distribute a controlled substance and criminal conspiracy. The

court ordered this sentence to run concurrent with the unexpired sentences Roman was

already serving. According to the Pennsylvania Bureau of Prisons, Roman’s state

sentences aggregated to a term of not less than ten years under 42 Pa. C.S. § 9757.

       Roman was paroled from his aggregate Pennsylvania sentence to his federal

detainer on December 10, 2001. Roman arrived at FCI Schuylkill on January 24, 2002 to

begin serving his 120-month federal sentence. However, his federal sentence began to

run on December 10, 2001, the date of his parole from the aggregated Pennsylvania

sentence.

       On March 19, 2002, Roman requested that the Federal Bureau of Prisons (BOP)

issue a nunc pro tunc designation crediting his federal sentence for time served in the

                                             3
custody of the State of Pennsylvania from July 16, 1995 (the time at which he contends

his first state sentence for voluntary manslaughter had expired) until his release to federal

authorities. The BOP denied this request. On August 18, 2003, Roman filed a petition

for habeas corpus under 28 U.S.C. § 2241 with the United States District Court for the

Middle District of Pennsylvania seeking credit toward his federal sentence for time spent

in state custody after the expiration of his first state sentence. The District Court granted

the petition in part and denied it in part, ordering the BOP to grant Roman credit for time

served in Pennsylvania from July 16, 2000 to December 9, 2001.1 Roman filed a motion

for reconsideration on November 10, 2003, arguing he was entitled to more than the 17-

month credit granted by the District Court. After seeking clarification from the

Pennsylvania Board of Probation and Parole, the District Court denied the motion for

reconsideration. Roman filed a timely appeal.

       Roman challenges the computation of his federal sentence on the basis that his two

state sentences should not have been aggregated. Specifically, he argues the second state

sentence for possession of instruments of crime and aggravated assault and the federal

sentence should have run concurrently and should have commenced service at the same

time. Under this computation, Roman asserts he is entitled to a nunc pro tunc designation




   1
    In an Order dated November 3, 2004, the District Court stated Roman was granted
credit from July 16, 2000 through December 9, 2001 “based upon the erroneously entered
state paroling action which was later rescinded.” (App. 8). Because the government did
not seek reconsideration, that decision is not before the Court and remains undisturbed.

                                              4
from the BOP crediting his federal sentence with the five years he served in Pennsylvania

custody after his first state sentence had expired.

       In Barden v. Keohane, we held that the BOP can, in its discretion, designate a state

prison as a place of federal confinement nunc pro tunc. 921 F.2d 476, 481 (3d Cir. 1991).

While we recognized habeas relief is “an appropriate judicial means of compelling that

examination,” we also held that resolution of the issue “is a matter within the Bureau’s

sound discretion.” Id. at 483. Here, the BOP considered Roman’s request for nunc pro

tunc designation and found it to be inappropriate. This was not an abuse of discretion.

       The BOP correctly determined that Roman was not paroled from his state sentence

until December 10, 2001 (and his consecutive federal sentence did not begin to run until

that date) because his first and second state sentences were aggregated under 42 Pa. C.S.

§ 9757. Roman cites Benson v. United States, 332 F.2d 288 (5th Cir. 1964), for the

proposition that each statutory offense must carry its own independent penalty, and

therefore, these penalties cannot be aggregated. However, the Benson court was

concerned with what it called “the general sentence” because “it does not clearly indicate

to the offender what sentence has been imposed for what conviction.” Id. at 292. Here,

Roman knew exactly what sentence had been imposed for each of his state convictions.

He was specifically informed at his second state sentencing proceeding of the state

court’s intent that he serve his state sentences consecutively and his federal sentence

“separate and apart” from his state sentence. (Appellant’s May 16, 2006 Letter at 23–24.)



                                              5
       Roman argues the federal sentencing judge did not intend and had no authority to

make the federal sentence run consecutively to the second state sentence, which had not

yet been imposed at the time of the federal sentence. Federal sentencing courts have the

authority to recommend that a federal sentence run either concurrently or consecutively to

a state sentence. 18 U.S.C. § 3621(b) (providing the BOP with discretion to designate the

place of a prisoner’s imprisonment “considering,” among other things, the

recommendation of the sentencing judge); Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.

1976). Although the BOP is not required to follow the sentencing court’s

recommendation, 18 U.S.C. § 3621(b); Barden, 921 F.2d at 483 (“While the statute

wisely requires the Bureau to solicit the views of the sentencing judge whenever possible,

his decision is not controlling under the statute.”); Gomori, 533 F.2d at 875 (same), it

commendably will often do so. But this is of little significance here, as the federal

sentencing judge made no such recommendation to the BOP. The record does not reveal

that the judge would have intended the federal sentence to run concurrently with any

subsequently imposed state sentence.

       More relevant to this case is whether the sentencing judge in the second state

sentencing proceeding expressed his intent to have Roman’s sentences run either

concurrently or consecutively. Unlike the federal judge, the state judge was aware of

both of Roman’s prior sentences — the first state and federal sentences. After oral

argument, we directed Roman’s counsel to file the transcript of Roman’s second state

sentencing proceeding, held in the Court of Common Pleas on November 26, 1991.

                                             6
Counsel provided this transcript, which reveals the sentencing judge intended Roman’s

second state sentence to run consecutively to both Roman’s first state sentence and his

federal sentence. The state court’s intent, although not conclusive, provides support for

the BOP’s decision. It is one factor that may be considered in deciding whether a federal

prisoner is entitled “to relief in the form of a nunc pro tunc designation of the state prison

as a place of federal confinement.” Barden, 921 F.2d at 483.

       For all of these reasons, the BOP did not abuse its discretion in declining to

designate a state prison as a place of federal confinement nunc pro tunc, and the motion

for reconsideration was properly denied.2 Accordingly, we will affirm.




   2
    Because we hold the BOP did not abuse its discretion in denying the designation
request, we need not reach the government’s argument that, under 18 U.S.C. § 3585(b),
Roman was not entitled to credit for time already served against his state sentence.

                                              7
