495 F. App'x 723
7th Cir.2012Background
- Lemus-Rodriguez, a Mexican citizen, was convicted of illegal reentry in violation of 8 U.S.C. §1326(a).
- He was resentenced after a successful appeal, receiving 30 months (half concurrent with a state sentence).
- During federal proceedings he was in custody pursuant to a writ of habeas corpus ad prosequendum, with a state-court sentence credit ongoing for time served.
- The district court concluded Lemus-Rodriguez remained under primary state jurisdiction and credited time against the state sentence, not the federal sentence.
- On appeal, Lemus-Rodriguez challenged the lack of federal credit for presentence custody, and the government argued waiver/forfeiture and that state custody was primary; the Bureau of Prisons would compute any credit post-sentencing and has administrative remedies requirements were not exhausted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lemus-Rodriguez is entitled to presentence credit on the federal sentence for time spent in federal presentence custody. | Lemus-Rodriguez argues he was in federal custody during proceedings and thus entitled to credit. | Government argues state primary custody persisted; credit already awarded against state sentence; no federal credit allowed by §3585(b). | No error; credit denied because state custody held primary jurisdiction and §3585(b) bars double credit. |
| Whether the writ ad prosequendum affects custody status for purposes of credit. | Lemus-Rodriguez contends he was in federal custody under the writ. | Writ does not transfer custody; state retains primary jurisdiction; custody remained with state. | Writ did not alter custody status; Lemus-Rodriguez remained under state jurisdiction for credit purposes. |
| Whether the Bureau of Prisons’ post-sentencing credit calculation and remedies exhaustion affect the appeal. | Credit computation should be reviewed; he exhausted no BOP remedies. | BOP computes credit after sentencing; remedies not exhausted; appeal on this point is frivolous. | Affirmed; BOP computes credits; remedy exhaustion required; no appeal on federal credit warranted. |
Key Cases Cited
- Flick v. Blevins, 887 F.2d 778 (7th Cir. 1989) (habeas ad prosequendum; prisoner on loan remains under sending state custody)
- United States v. Evans, 159 F.3d 908 (4th Cir. 1998) (primary jurisdiction remains with sending state until relinquished)
- United States v. Cole, 416 F.3d 894 (8th Cir. 2005) (primary jurisdiction continues unless first sovereign relinquishes)
- United States v. Casas, 425 F.3d 23 (1st Cir. 2005) (agency/agreements can affect custody during proceedings; primary custody context)
- Sinito v. Kindt, 954 F.2d 467 (7th Cir. 1992) (distinguishes location of custody vs. legal custody for sentence credit)
- Short v. Revell, 152 Fed. Appx. 542 (7th Cir. 2005) (recognizes state custody credit against state sentence despite federal custody period)
- United States v. Ross, 219 F.3d 592 (7th Cir. 2000) (§3585(b) credit limitations; no double-credit rule applied)
- United States v. Monroy, 207 Fed. Appx. 710 (7th Cir. 2006) (administrative remedy exhaustion for credit claims)
- United States v. Wilson, 503 U.S. 329 (1992) (BOP computes credits after sentencing; administrative remedies required)