Schleining v. Thomas
2011 U.S. App. LEXIS 13076
| 9th Cir. | 2011Background
- Schleining was arrested in Montana on September 3, 2003 for state burglary-related offenses and possession of a firearm.
- On November 12, 2003, Schleining pled guilty to attempted burglary, possession of narcotics, and possession of drug paraphernalia and began serving a state-prison sentence with five years suspended.
- A federal indictment for felon in possession of a firearm was returned June 2, 2004; Schleining was brought into federal custody January 25, 2005 and pled guilty April 8, 2005 to one count of Felon in Possession.
- On July 8, 2005, Judge Molloy sentenced Schleining to 94 months, applying a § 5G1.3(b) adjustment crediting 21 months already served in state prison; the federal sentence ran concurrently with the state sentence.
- After federal sentencing, Schleining returned to state custody, later transferring to federal custody on February 21, 2007; the BOP calculated GCT credits based on the 94-month federal sentence and projected release in 2012.
- Schleining petitioned for habeas relief in 2009 seeking GCT credit for the 21 months in state custody pre-federal sentence; the district court denied, and Schleining appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GCT credit can accrue for pre-sentence state custody | Schleining contends he earned GCT for 21 months in state custody before federal sentencing. | Schleining's federal sentence cannot commence until federal sentencing, so pre-sentence state time cannot accrue GCT. | No; GCT accrues only on time actually served on the federal sentence. |
| When a federal sentence commences for a defendant already in state custody | GCT should reflect time served prior to federal sentencing if running concurrent. | A federal sentence cannot begin before federal sentencing; backdating is impermissible. | A federal sentence cannot commence prior to its pronouncement; pre-sentence state time is not GCT eligible. |
| Applicability of Flores/Gonzalez anti-backdating rule | Flores/Gonzalez support treating concurrent sentences as retroactive for GCT. | These decisions preclude backdating the federal sentence to the start of state custody for GCT purposes. | These principles apply; the time cannot be backdated to the start of the state term for GCT. |
| Relation to Drake and §5G1.3 in determining GCT | Drake might suggest balancing pre-sentence time in applying related guideline credit. | Drake does not control GCT calculation under §3585(a) and §3624(b); its reasoning is distinguishable. | Drake does not govern GCT in this context; the agreed rule from sister circuits remains. |
Key Cases Cited
- Barber v. Thomas, 130 S. Ct. 2499 (2010) (GCT relates to time actually served on federal sentence; backdating not allowed)
- Gonzalez v. United States, 192 F.3d 350 (2d Cir. 1999) (anti-backdating rule; cannot backdate federal sentence to state term)
- Flores v. United States, 616 F.2d 840 (5th Cir. 1980) (federal sentence cannot commence prior to pronouncement even if concurrent)
- Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998) (noting concurrence with concurrent sentences begins at federal commencement)
- United States v. Drake, 49 F.3d 1438 (9th Cir. 1995) (distinguishable; related to §5G1.3 and mandatory minimums, not GCT timing)