Robert Salley v. United States

GRAAFEILAND, NEW- Before VAN MINER, Judges. MAN GRAAFEILAND, Judge: Salley VAN tence. served his State sentence at various State correctional facilities. Dur- se, Salley, pro appeals from an incarceration, ing sought this he unsuccess- the United District States Court order fully on several occasions to be transferred Eastern District of New York for the custody to federal so that his sentences J.) (Bramwell, denying Salley’s motion concurrently could run as the State court 2255, in brought pursuant to 28 U.S.C. § However, had directed. in accordance with sought directing he an order which sentence, the district court’s the transfer Bureau of Prisons to calculate his federal place did not take until Salley’s State from the date the sentence was completed. sentence was Salley imposed rather than the date custody by into state au- delivered federal 27, April Salley On 1984 in moved Although agree we do not com- thorities. directing district court for an order reasoning of the district pletely with begin Bureau of Prisons to its calculation deny judge, we believe that his decision to of the time served Salley’s on federal sen- the motion was correct. Salley tence from the date was sentenced in 1, federal court rather than the agents Salley May date he Federal arrested on was delivered into federal custody. 1981 for violation of 18 U.S.C. 641 This §§ 1708, possession treasury appeal checks is from the denial of stolen that motion. following day, he and stolen mail. On the In Sackinger, United States v. 704 recognizance. released on his own 29, (2d Cir.1983), F.2d 30 we stated that later, City police weeks Several imposed by “sentences a federal court are Salley charges on of rob- arrested State Attorney and, administered General bery, and he was incarcerated State fa- may while the court recommend that a cilities. federal sentence be served in a state facili 5, Salley brought 1981 On October concurrently sentence, ty with a state Judge pursuant to a writ before Bramwell Attorney General has discretion as to corpus prosequendum, and of habeas ad or not he whether will follow the recom $1,000. set in the amount Sal- bail was However, this statement mendation.” does custody, and ley then was returned to State apply to a federal sentence that is not lodged Marshal a federal the United States commence until the state sentence has against him. detainer completed. right been Salley again ap- In November of 1981 judges such a sentence has been peared Judge pursuant Bramwell See, before recognized many years. e.g., Hay corpus prosequendum ad a writ of habeas Warden, Cir.1941); (9th 124F.2d 514 den v. 18 pled guilty to a violation of U.S.C. ex rel. Lombardo v. McDon United States 16, Salley ap- On December 1981 Cir.), denied, nell, (7th F.2d 919 cert. 153 Judge Bram- peared for a third time before 1365, 66 90 L.Ed. 1641 328 U.S. S.Ct. to a term of four well and was sentenced (1946); States, 310 F.2d Lavoie v. United nine months. Bramwell years and Cir.1962) curiam); (1st (per Anderson 117 directed, however, that the federal sen- (10th Cir.) F.2d 492 405 v. United run to whatever tence was to denied, curiam), 89 cert. 394 U.S. Salley received in connection with (1969); 1318, 22 L.Ed.2d 567 S.Ct. robbery charge. pending New York his (8th Cir.), Lee, 500 F.2d 586 cert. States custody, and Salley was returned to State 322, 42 denied, 419 U.S. its detainer States renewed the United right 279 L.Ed.2d against him. regardless of whether may be exercised imposed. yet as been sentence has state subsequently pled guilty to the States, supra, 405 v. United Anderson July on 1982 was charge, and State Nelson, 493; 469 Farley v. F.2d at term of one and one-half sentenced to a (2d (D.Conn.), F.2d 995 aff'd, 607 801 years, to run concurrent- and one-half four States, Cir.1979); see v. United imposed federal sen- Casias ly previously with curiam). (10th Cir.1970) (per secutively yet that has not F.2d 1233 imposed. been the law does not agree that “The Courts date person to know exact require Imposition of a consecutive sentence is begin.” sentence will that his strong medicine. See United States v. Go- Buide-Gomez, 744 F.2d States (2d lomb, Cir.1985). may F.2d 86 It — denied, U.S. —, Cir.1984), (11th cert. well be warranted some cases. But it 833 84 L.Ed.2d only should used after awareness of a be imposed already puni- so that the sentence extent that States v. East- To the the sentence is tive effect of consecutive (9th Cir.1985), man, F.2d enunci- 758 1315 impo- at carefully considered the time of its rule, it is dictum with a different ates sition. I do not understand the Dis- how case, disagree. the In that which we trict in this case could exercise the court, in federal was sentenced defendant required sentencing judge of a discretion by “taken the United States Mar- he was determining in by advance that the 57 place by designated the the Attor- shal to thought appropriate months he was for of his federal sen- ney General for service Salley should be consecutive to case, Salley In was tence.” the instant might im- sentence thereafter be whatever Metropolitan to Correction remanded the posed by length the state court. The of a days transferred several Center was always primary sentence relevant custody at Rikers Island. later to State concerning decision the reasoned both Attorney Although the General length and the of a consecutive sentence 18 4082 to authority the under U.S.C. has § consecutively. it imposing choice of When place the confinement in cases designate of Judge in the decided to District this case concurrently, to run sentences are where consecutively, he had impose the 57 months delays the which commencement an order length York no idea of the of the New does invade sentence not of a consecutive those months would sentence to which 57 Attorney any in power of the General the be consecutive. Thornton, v. 710 F.2d way. United States partial a of there is abdication Cir.1983). (9th Appellant’s fed 515-16 authority judge imposes sentencing when a begin he to run until eral sentence did that to run to one a sentence facility at correctional received imposed by in the future another will be Sizer, of that sentence. Roche v. service letting judge sentencing judge; first Cir.1982); (2d F.2d 510 675 date judge expiration extend the the second (3d Campisi, 622 F.2d 699-70 v. States Finally, a judge’s of the first sentence. Cir.1980) curiam); 18 U.S.C. expiration commence after the sentence to Accordingly, have here are con- what we yet imposed violates of a sentence not There flicting state and federal sentences. be definite principle that sentences must sen- why reason the district court’s is no See, unambiguous. e.g., Bius Unit time, tence, give in prior must which was Cir.1961). (10th F.2d 653 ed 286 of court. See United way to that the State sentenced more sense to have It makes no 32 supra, 704 F.2d at Sackinger, States to whatev- months consecutive to 57 (quoting Day, Lionel v. might impose on er . (W.D.Okla.1976)). it charge robbery than pending state then to 50 months sentenced him would to have Affirmed. first seven for each plus one month for each might impose NEWMAN, years York Judge, con- New JON 0. prison rules seven violations first curring in the result: while incarcerated. might commit that he separate- in and write I concur the result direct- issue to rule on the only The court respectful disagreement ly express my to may not judge a federal has that sentencing judge ly has held view a with the that a consecutively to run impose a sentence to run con- authority a sentence imposed imposition that will be imposed the future of a sentence consecu- tively state court. to a future United States v. East- sentence. Like Ander- (9th Cir.1985). son, man, challenge 758 F.2d It is it involved a to the computa- why majority not evident characterizes tion a consecutive federal sentence after defendant, holding primary as a dictum. The state sentence had been served. A appealing pursuant three-year from denial of a motion sentence had been im- 35, challenged posed consecutively Fed.R.Crim.P. his federal an existing state solely ground on the that it sentence. Thereafter the imposed state an yet required consecutive to a state sentence not additional sentence and its service imposed. appeal, prevailed. prisoner On he before was turned over to Ninth Circuit ruled that the consecutive federal authorities to serve the federal sen- Anderson, feature of the sentence was invalid and tence. As holding simply resentencing. remanded for that the federal sentence did not prisoner commence until the was in federal My colleagues enlist three decisions in custody. Anderson, Unlike Farley does support may of their that a view sentence not even contain a approving statement a imposed consecutively to a future sen be sentence to a consecutive future sentence.2 tence. The first is v. Anderson United curiam), States, (10th Cir.) (per 405 F.2d 492 The third case is Casias v. United denied, States, (10th Cir.1970) 421 F.2d 1233 (per rt. U.S. S.Ct. ce curiam). prisoner 22 L.Ed.2d 567 It is true that The unsuccessfully there expressed approval challenged of the Tenth Circuit its federal sentence on the friv- ground that, type imposed Salley, pend- the of sentence on olous while free on bail ing review, though gave the no reason for its direct he had by Court been convicted approval.1 approval required the in An state authorities and to serve a case, derson, imposed like in this state sentence consecutively that of Court to the there, appears appellant previously imposed to be dictum. The federal sentence. Eastman, appellant in not unlike the Though I believe the District imposition appealing from the of the con authority lacked a sentence con- to Instead, serving sentence. secutive sentence, secutively agree to a future I sentence, the state he made a Rule 35 my colleagues with that is not enti- that his consecutive motion to establish relief tled to from the service of his federal began to run from the federal sentence opportunity He when sentence. had the imposition. holding of the date of its imposed the federal sentence to chal- unexceptional one Tenth Circuit lenge aspect, its as the defend- consecutive begins to run from that a federal successfully ant did in the Eastman the date a defendant delivered to Having made no such chal- Ninth Circuit. custody begin serving his sentence. lenge, complaint he has no that he was Nelson, (from custody which he Farley The second case is 469 returned to state (D.Conn.), mem., brought imposition of the 607 had been F.Supp. 796 aff'd sentence) (2d Cir.1979). York exer- also did federal or that New F.2d 995 That case require him to serve appealing prerogative from cised its not involve a defendant .to States, three-year consecutive fed- cited In addition to the 1. The Tenth Blitz sentence, (1894), prison- the focus of the eral which was 153 U.S. 38 L.Ed. 725 one-year complaint Farley, federal sen- 374 F.2d 90 er’s and Williamson v. curiam). consecutively (5th Cir.1967) imposed to run involved a tence was later Blitz being served and to sentences then on one count was invalid both all claim that a sentence any prisoner in the future imposed consecutively "will serve to a sen- that because it was any any or criminal of detainers count that was reversed on because tence on another charges pending.” 469 appeal. which are now Williamson involved a similar claim that this latter There is no indication was invalid because it was im- at 799. that a sentence any one-year had bear- consecutively previously imposed posed feature of the any prisoner or on ing pending appeal. on the time served on Un- sentence that was then case. rejected. in the derstandably, issue raised or decided both claims were prior turning him a lawful state sentence of his federal authorities for service

over to

federal sentence. 1, 1987, a provision November

After Act of Comprehensive Crime Control date,3 appears to on that effective that a

make clear consecutive simultaneously

may imposed only with be upon a “who defendant

another sentence already subject undischarged term to an 98-473, tit. imprisonment.” Pub.L. (1984) (to

II, 212(a)(2), be 98 Stat. 3584(a)) (emphasis at 18

codified U.S.C. §

added). may judges that timé district Until carefully propriety

wish to consider one

imposing a sentence unnecessary yet imposed, despite expressed in the

approval practice opinion.

Court’s HILL, Plaintiff-Appellee,

Clarence C. COLA COMPA- COCA BOTTLING

NY OF NEW YORK and John

Hurley, Defendants-Appellants.

No. Docket 85-7405. Appeals,

United States Court

Second Circuit.

Argued Sept. 1985.

Decided March Hoffman, City

Stephen D. Cohen, P.C., Ma- Hoffman & (Warshavsky, counsel), Littman, for defend- delyn C. ants-hppellants. Piel, City, York New

Eleanor Jackson plaintiff-appellee. 99-217, 99 Stat. year. § original Pub.L. date of November

3. The effective 98-473, II, 235(a)(1), tit. see Pub.L. No. recently (1984), one extended 98 Stat.

Case Details

Case Name: Robert Salley v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 21, 1986

Citation: 786 F.2d 546

Docket Number: Cal. 357, Docket 85-2171

Court Abbreviation: 2d Cir.