                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2009

Osval Alvarez v. Paul Schultz
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3543




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-3543
                                     ___________

                                 OSVAL ALVAREZ,
                                               Appellant

                                           v.

                            PAUL M. SCHULTZ, Warden
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                        (D.C. Civil Action No. 07-cv-05316)
                     District Judge: Honorable Robert B. Kugler
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 17, 2009
                 Before: BARRY, SMITH and GARTH, Circuit Judges

                          (Opinion filed: February 20, 2009 )

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Appellant Osval Alvarez was arrested by City of Philadelphia police officers on

August 4, 1999, charged under state law for distributing Phencyclidine (PCP) and taken

into state custody; he was released on bond on August 6, 1999. On August 19, 1999, he
was arrested as a parole violator and placed again in state custody. When the state

dismissed its narcotics charges against Alvarez in November 1999, he remained in state

custody solely on the parole violation charges. While in state custody, Alvarez was

indicted by federal authorities on multiple drug charges pursuant to 21 U.S.C. § 841(a)(1)

and §860(a), associated with his arrest in August 4, 1999.

       On March 24, 2000, state authorities delivered Alvarez to federal court by means

of a writ of habeas corpus ad prosequendum. On September 14, 2000, Alvarez pled

guilty to certain counts of the federal indictment. The federal court sentenced Alvarez on

March 5, 2001, to 130 months in prison with six years of supervised release.

       On March 15, 2001, Alvarez was returned to state custody. On June 22, 2001, the

Pennsylvania Board of Probation and Parole (“PBPP”) sentenced him to three to six years

in prison. On August 12, 2002, the PBPP released Alvarez on parole and transferred him

immediately to the custody of the Federal Bureau of Prisons (BOP) to begin serving his

federal sentence.

       In the fall of 2001, Alvarez filed a motion for correction or clarification of his

federal sentence while he was in state custody, seeking to have the time he spent in state

custody credited to his federal sentence.1 The federal sentencing court denied Alvarez’s



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         After Alvarez filed his motion, the PBPP agreed to credit his state parole
violation sentence for the periods from August 19, 1999, to March 24, 2000, and from
March 15, 2001 to August 12, 2002. Meanwhile, the BOP credited Alvarez with time
served for the three days he was held in state custody upon his arrest on August 4, 1999,
on local narcotics charges and for the time period in which he was held temporarily in

                                              2
motion for clarification/correction in March 2002, because the court had advised Alvarez

during the plea colloquy that his federal sentence would be served consecutively to any

state prison sentence he received.

       The BOP, meanwhile, construed Alvarez’s motion as a request for nunc pro tunc

designation of the state prison as his place of incarceration for his federal sentence.

Pursuant to its authority to make such a designation under BOP Program Statement

5160.05, the BOP conducted a review of Alvarez’s criminal history and sent the

sentencing court a letter seeking the court’s position on Alvarez’s request. The

sentencing court recommended against nunc pro tunc designation for the same reason that

it denied Alvarez’s motion for correction/clarification. Thereafter, the BOP declined to

grant Alvarez’s request for nunc pro tunc designation request.

       Upon exhaustion of his administrative remedies, Alvarez filed a habeas petition

pursuant to § 2241, claiming that the BOP refused to consider, or mistakenly failed to

grant, his nunc pro tunc designation request. He asserted his entitlement to fair treatment

of his request under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). After the

Government submitted an answer, the District Court denied the habeas petition by order

entered on July 1, 2008. In denying relief, the District Court reasoned that, at the time of

Alvarez’s federal sentencing, the sentencing court lacked statutory authority to order that

the federal sentence run concurrently with a state sentence because there was no state



federal custody from March 25, 2000 through March 14, 2001.

                                              3
sentence at the time — Alvarez’s parole violation charges were still pending before the

PBPP in March 2001. The BOP, however, had discretionary authority under 18 U.S.C. §

3621(b) and P.S. § 5160.05 to make a nunc pro tunc designation. The District Court held

that the BOP treated Alvarez fairly in reviewing his designation request and did not abuse

its discretion in denying it pursuant to P.S. § 5160.05. This timely appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. “We 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.

       Alvarez argues that the eighteen month period from March 15, 2001 to August 12,

2002, which Pennsylvania authorities credited to his parole violation sentence, should

have been credited to his federal sentence. He argues that the failure to credit his federal

sentence means that he will serve 148 months instead of the actual sentence of 130

months. He asserts that the BOP has the discretion to allow his state and federal

sentences to run concurrently because the federal sentencing court did not indicate at

sentencing whether the sentence was to run concurrently or consecutively to the “yet to be

imposed” state sentence.

       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 at 481. 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



                                              4
sound discretion.” Id. at 483.

       There is nothing on this record that leads us to conclude that the BOP abused its

discretion in declining to grant Alvarez’s nunc pro tunc designation request. Because

Alvarez’s federal sentence was imposed first, the federal judgment does not refer to the

pending state parole violation. The BOP properly investigated Alvarez’s nunc pro tunc

designation request pursuant to its authority under 18 U.S.C. § 3621(b) and P.S. §

5160.05 by contacting the sentencing court for its input and by reviewing Alvarez’s prior

criminal history. For its part, the sentencing court recommended that the federal sentence

run consecutive to the state sentence because the court intended that the federal sentence

be served consecutively to any state prison sentence imposed. The BOP’s investigation of

Alvarez’s criminal record revealed a history of narcotics convictions dating back to 1991.

Based on its own investigation and taking into consideration the sentencing court’s non-

binding recommendation, the BOP properly exercised its discretion and denied Alvarez’s

request for a nunc pro tunc designation, reasoning that concurrent service would not be

consistent with the intent of the federal sentencing court or with the goals of the criminal

justice system.

       The decision not to nunc pro tunc designate is also consistent with the use of the

August 12, 2002 date as the start date for the federal sentence under 18 U.S.C. § 3585(b).

Congress enacted 18 U.S.C. § 3585(b) to prohibit double credit in most circumstances.

See Rios v. Wiley, 201 F.3d 257, 272-75 (3d Cir. 2000). Here, the Pennsylvania



                                              5
authorities credited Alvarez’s state parole violation sentence with the eighteen-month

period he spent in state custody, from March 15, 2001 to August 12, 2002. Consistent

with the statute, Alvarez’s federal sentence commenced on the date that he was returned

to federal custody following his release on parole by the PBPP on August 12, 2002.

      Accordingly, we will affirm the judgment of the District Court.




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