United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S REQUEST FOR
RETROACTIVE SENTENCE APPLICATION (ECF NO. 48)
V. PARKER U.S. DISTRICT JUDGE
matter presently is before the Court on Defendant Gregory
Lamar Calhoun's request for a reduction of his sentence,
filed March 12, 2018. (ECF No. 48.)
August 26, 2015, Defendant pleaded guilty to one count of
felon in possession of firearm, in violation of 18 U.S.C.
§ 922(g)(1). (ECF No. 30.) At the time of
Defendant's sentencing, Defendant was awaiting sentencing
from the state court for a parole violation. At the
sentencing hearing, Defendant requested that his federal
sentence run concurrent to any sentence imposed by the state
court. (ECF No. 44 at Pg ID 177.) This Court sentenced
Defendant to 18 months of imprisonment and deferred the
decision of whether Defendant would receive a concurrent
sentence to the state. (Id. at Pg ID 191.)
January 11, 2016, Defendant filed a motion for ineffective
assistance of counsel where he argued that his defense
attorney failed to request that his federal sentence run
concurrent to his undischarged state sentence. (ECF No. 37 at
Pg ID 145.) Defendant requested that this Court order that
his federal sentence run concurrent with his state sentence.
(Id.) This Court denied Defendant's request on
July 12, 2017. (ECF No. 47.)
recently, Defendant filed a letter with the Court seeking the
same relief. (ECF No. 48.) In a letter dated February 23,
2018, the Court's case manager referred Defendant to the
Designation and Sentencing Computation Center regarding his
sentence. (ECF No. 48 at Pg ID 213.) On June 14, 2018, this
Court received a letter from the Designation and Sentence
Computation Center, inviting the Court to retroactively
determine whether Defendant's federal sentence should run
concurrent or consecutive to his state sentence. (ECF No.
52.) Accordingly, on June 28, 2018, this Court entered an
Amended Judgment and ordered Defendant's 18-month
sentence to run concurrent to the state sentence. (ECF No.
response, on July 3, 2018, the government filed a motion to
strike, arguing that the Court lacked authority to modify
Defendant's sentence. (ECF No. 50.) Upon further review
of the relevant law, the Court finds that the government is
correct. A district court is authorized to modify a
defendant's sentence once it has been imposed only in
those instances where Congress expressly indicates.
United States v. Johnson, 564 F.3d 419, 421 (6th
Cir.), cert. denied, 130 S.Ct. 318 (2009); see also
United States v. Watkins, 655 Fed.Appx. 478, 479 (6th
Cir. July 21, 2016 (umpublished). 18 U.S.C. § 3582(c)
describes those limited circumstances as follows: (1) where
the Bureau of Prisons has moved for the modification based
upon extraordinary and compelling circumstances warranting a
reduction or the fact that the defendant is at least seventy
years of age, has served at least thirty years in prison and
presents no danger to the safety of the community,
see 18 U.S.C. § 3582(c)(1)(A)(i) and (ii); (2)
where modification is permitted under Federal Rule of
Criminal Procedure 35, see 18 U.S.C. §
3582(c)(1)(B); (3) where the guideline range for the offense
of conviction has been retroactively lowered, see 18
U.S.C. § 3582(c)(2); or (4) “to the extent
otherwise expressly permitted by statute, ”
see 18 U.S.C. § 3582(c)(1)(B).
request for a reduced sentence is not within the limited
circumstances where this Court is authorized to act.
Furthermore, pursuant to 18 U.S.C. § 3584(a),
“[m]ultiple terms of imprisonment imposed at different
times run consecutively unless the court orders that the
terms are to run concurrently.” In the instant case,
both the federal and state court were silent as to how the
sentences should run. Therefore, the default is for the
sentences to run consecutively.
Defendant's protestations that he did not receive credit
to his federal sentence for the time he was in federal
custody from February 17, 2015 through December 10, 2015, 18
U.S.C. § 3585(b) leaves the determination of sentencing
credits to the Bureau of Prisons. See United States v.
Wilson, 503 U.S. 329, 334-35 (1992) (“§
3585(b) does not authorize a district court to compute the
credit at sentencing.”) Although Defendant was in
federal custody from February 17, 2015 to December 10, 2015,
the state had primary jurisdiction over Defendant because it
arrested him first. See Buxon v. United States, No.
1:10-cv-2015, 2010 U.S. Dist. LEXIS 124078, at *9 (N.D. Ohio
Nov. 23, 2010).
“If, while under the primary jurisdiction of one
sovereign, a defendant is transferred to the other
jurisdiction to face a charge, primary jurisdiction is not
lost but rather the defendant is considered to be ‘on
loan' to the other sovereign.” United States v.
Cole, 416 F.3d 894, 896-97 (8th Cir. 2005). “As
between the state and federal sovereigns, primary
jurisdiction over a person is generally determined by which
one first obtains custody of, or arrests, the person.”
Id. Issuance of a writ of habeas corpus ad
prosequendum does not change a defendant's custody
status. Id. Therefore, petitioner's removal from
the state by federal writ did not relinquish primary custody
of the state. Munz v. Michael, 28 F.3d 795, 798 (8th
Cir. 1994) (writ of habeas corpus ad prosequendum
does not alter prisoner's custody status, but merely
changes location of custody). The only function of such a
writ is to cause the removal of a prisoner to the proper
jurisdiction for prosecution. 28 U.S.C. § 2241(c)(5);
United States v. Boyes, 305 F.2d 160, 161 (6th Cir.
1962). A writ of habeas corpus ad prosequendum is
only a ‘loan' of the prisoner to another
jurisdiction for criminal proceedings in the receiving
jurisdiction. See Gipson v. Young, 786 F.2d 1164,
1986 WL 16497, at *2 (6th Cir. 1986).
Buxon, 2010 U.S. Dist. LEXIS 124078, at * 8-9.
Furthermore, “[a] federal sentence does not begin to
run . . . when a prisoner in state custody is produced for
prosecution in federal court pursuant to a federal writ of
habeas corpus ad prosequendum.”
United States v. White, 874 F.3d 490, 507 (6th Cir.
Oct. 27, 2017) (quoting United States v. Evans, 159
F.3d 908, 912 (4th Cir. 1998)).
IT IS ORDERED that Defendant's request
(ECF No. 48) is DENIED.
IS FURTHER ORDERED that Defendant shall be committed
to the custody of the United States Bureau of Prisons until
the completion of his federal sentence.