United States v. Carlisle, Criminal Action No. 12-00211-KD-C

UNITED STATES OF AMERICA, v. PATRICK CARLISLE, Defendant.

Criminal Action No. 12-00211-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

November 9, 2020

ORDER

This action is before the Court on Defendant Patrick Carlisle's "Motion to Void, Vacate, Correct Sentence with Alternative Compassionate Release" (doc. 57), "'Ex Parte' Motion for Access to Courts and/or Request for Appointment of Counsel" (doc. 59), "Motion to Void, Vacate Correct Sentence" (doc. 60); letter in support (doc. 63), "Emergency Request for Appointment of Counsel" (doc. 64), and Motion for Compassionate Release (doc. 65) . Upon consideration, and for the reasons set forth herein, the motions (docs. 57, 59, 60, 65) are dismissed for lack of jurisdiction, his requests for appointment of counsel (docs. 59, 60, 64, 65) are denied, and his requests for a hearing (docs. 60, 64) are denied.

I. Background

In April 2013, Carlisle was sentenced to a term of 51 months for the offense of felon in possession of a firearm (doc. 33). His three-year term of supervised release commenced April 14, 2016. Carlisle was arrested by Mobile County Sheriff's Deputies on March 12, 2018. He was charged with several misdemeanor offenses and the felony offense of possession of a controlled substance, methamphetamine. A federal petition for warrant or summons for an offender under supervision was filed. Carlisle was arrested pursuant to a Writ of Habeas Corpus as Prosequendum on March 21, 2018 (doc. 40, sealed; doc. 42). His initial appearance was held that same day, and Carlisle was ordered detained (doc. 46).

On June 12, 2018, this Court revoked Carlisle's supervised release term and sentenced him to serve 21 months (doc 56). The Court did not impose this sentence to serve concurrent with any other sentence. He was remanded to the custody of the United States Marshal and returned to the custody of the State of Alabama.

In November 2018, the State of Alabama sentenced Carlisle to a term of five years for the controlled substance offense. According to Carlisle, the state court judge ordered his state sentence to run concurrent with his federal sentence in this action. Carlisle remained in state custody until February 28, 2020 when he was released and taken into federal custody to begin serving his 21-month federal sentence. His estimated release date is August 25, 2021. He is presently incarcerated at the United States Prison in Atlanta, Georgia.

II. Analysis

A. Credit against his federal sentence for time served in state custody

Carlisle moves the Court to order the Bureau of Prisons "to credit [him] with time served since 2018" in federal and state custody, and release him (doc. 57, p. 2; doc. 60, doc. 63). In his opinion, his 21-month federal sentence began on March 21, 2018, when he was arrested on the federal warrant, and therefore, his federal sentence should have concluded in December 2019, with credit for good time (doc. 63). He asserts that after he was sentenced in this Court he "was sentenced in the State, for relevant conduct and the State Judge ran [his] sentence concurrent" with the sentence imposed in this Court, but "[s]omehow the BOP is not counting [his] time, they have [him] set for release in Aug 2021" (doc. 63).

Carlisle's federal revocation sentence, imposed in June 2018, was not ordered to run concurrent with any other sentence (doc. 56). The fact that the state court judge in November 2018 ordered Carlisle's state sentence to run concurrent with his federal sentence, does not convert his federal sentence into a concurrent sentence. See 18 U.S.C. § 3584(a) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.").

As to any credit which might be due, pursuant to 18 U.S.C. § 3585(b) a "defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(b).

However, the "[a]uthority to calculate credit for time served under section 3585(b) is vested in the Attorney General, not the sentencing court." United States v. Alexander, 609 F.3d 1250, 1259 (11th Cir. 2010) (citing United States v. Wilson, 503 U.S. 329, 334, 112 S. Ct. 1351, 1355 (1992)); United States v. Anderson, 517 Fed. Appx. 772, 775 (11th Cir. 2013) ("The Attorney General, through the BOP, is authorized under § 3585(b) to compute sentence-credit awards after sentencing."); United States v. Hardy, 672 Fed. Appx. 978 (11th Cir. 2017) ("After a defendant begins serving his sentence, the Attorney General, through the Bureau of Prisons, has exclusive authority to determine whether the defendant has spent time in official detentionand to compute the amount of credit to which he is entitled.") (citation omitted). Therefore, this Court does not have authority to calculate credit for time served in custody.¹

If Carlisle pursues a re-calculation of his credit through the BOP's administrative remedy procedure, and exhausts all procedures available, he may then file a petition pursuant to 28 U.S.C. § 2441 in the federal court, if he is not satisfied with the results. United States v. Leverette, 721 Fed. Appx. 916, 917 (11th Cir. 2018) (if the BOP declines to award credit, he may pursue a "claim through the Bureau's Administrative Remedy Program.") (citing 28 C.F.R. § 542.10, et seq). Although, exhaustion of administrative remedies is no longer a jurisdictional requirement, it is still a requirement that must be met before a petition is filed in the courts. Id. Additionally, the § 2241 petition must be filed in the United States District Court where Carlisle is confined. Vance v. United States, 476 Fed. Appx. 234 (11th Cir. 2012) (a § 2241 petition "may be brought only in the district court for the district in which the inmate is incarcerated.") (citation omitted). Carlisle is confined at USP Atlanta. Therefore, the federal court where he should file his motion is in the Northern District of Georgia.

Accordingly, Carlisle's motion requesting this Court to award credit against his sentence for time spent in state custody is dismissed for lack of jurisdiction.

B. Compassionate release

Alternatively, Carlisle moves the Court to reduce his "sentence on Compassionate Release due to having served time since 2018 and Covid-19" (doc. 57; doc. 65 (same)). Carlisle argues that he is entitled to compassionate release because he has overserved his sentence and because he "has been stuck in USP Atlanta, in transit, since the beginning of the year, due to Covid-19 conditions at USP Atlanta are deplorable" (doc. 59; doc. 57 (same); doc. 65 (same)).

Once a sentence is imposed, the "authority of a district court to modify an imprisonment sentence is narrowly limited by statute." United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010); United States v. Shaw, 711 Fed. Appx. 552, 554-55 (11th Cir. 2017) (same). Specifically, the district court may not modify a term of imprisonment once it has been imposed except as set out in 18 U.S.C. § 3582(c). See United States v. Pubien, 805 Fed. Appx. 727, 729 (11th Cir. Feb. 25, 2020) (citing 18 U.S.C. § 3582(c)).

The compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, provides that the district court "upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the [applicable] factors set forth in 18 U.S.C. § 3553(a)", if the district court finds that "extraordinary and compelling reasons warrant such a reduction" and the reduction is "consistent with applicable policy statements issued by the [United States] Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A).

As stated above, the Court may act on the motion only after Carlisle has exhausted his administrative rights to appeal the BOP's failure to file a motion for compassionate release, or more than 30 days have passed since the Warden received Carlisle's request for compassionate release. Carlisle has not provided any evidence that he has complied with either of the two statutory prerequisites. Therefore, the motion for compassionate release is dismissed without prejudice for failure to show compliance with either of the statutory prerequisites.

Additionally, even if Carlisle had met the statutory prerequisites, he would not be entitled to compassionate release on the grounds alleged. "Extraordinary and compelling" reasons are not defined in the statute. Instead, Congress gave the Sentencing Commission the duty to promulgate general policy statements regarding sentence modifications pursuant to 18 U.S.C. § 3582(c)(1)(A) and stated that the Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). Congress also stated that "[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." Id.

Before the First Step Act was enacted, the Sentencing Commission promulgated the following policy statement, with criteria and examples:

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a

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