Opinion
00 Cr. 357 (SHS).
March 16, 2007
OPINION ORDER
Antonio Crespo, acting pro se, petitions this Court for a nunc pro tunc designation of a state facility as the place of imprisonment for his federal sentence so that he may receive credit against his federal sentence for the amount of time he has already served in state custody. When sentencing Crespo, it was the intention of both this Court and the state court that his federal and state sentences run concurrently. The matter is referred to the Bureau of Prisons ("BOP") for resolution pursuant to its statutory authority to designate a state correctional institution as the place of imprisonment for a federal sentence, with the Court's strong recommendation that the designation be made.
I. BACKGROUND
On November 8, 2000 the Court sentenced Crespo to a term of ninety-seven months imprisonment. At the time of sentencing, Crespo was held by federal authorities in the Southern District of New York pursuant to a writ of habeas corpus ad prosequendum from the custody of New York State, where Crespo faced prior criminal charges. Because Crespo had not yet been sentenced in state court at the time of the federal sentencing, this Court did not specify in the judgment and commitment order whether his federal sentence was to run concurrently or consecutively to the as yet undetermined state sentence. (Judgment and Commitment Order dated Nov. 8, 2000.)
On January 3, 2001 — two months after the federal sentence was imposed — the state court sentenced Crespo to eight years incarceration, stating that its sentence should run concurrently with the federal sentence. (New York State Supreme Court Sentence Commitment Order dated Jan. 3, 2001, attached to Letter from Antonio Crespo dated Jan. 5, 2007.) Crespo was remanded to state custody to continue serving his state sentence. On November 15, 2006, having completed his state sentence, Crespo was transferred to federal custody. Shortly thereafter, the BOP computed Crespo's release date, and finding no recommendation from this Court that the federal and state sentences should run concurrently, applied the statutory presumption of consecutive sentences, see 18 U.S.C. § 3584(a), which set Crespo's projected release date at November 29, 2013 (see BOP Inmate Locator at http://www.bop.gov/iloc2/LocateInmate.jsp).
Because Crespo is an undocumented alien and seeks to return to Colombia (Letter from Antonio Crespo dated Jan. 22, 2007), it is the Court's assumption that following the completion of his term of imprisonment Crespo will be deported to Colombia.
II. CRESPO'S MOTION
Crespo then moved this Court to designate the state facilitynunc pro tunc as the place of imprisonment for his federal sentence. Crespo's motion is meritorious. First, the United States Court of Appeals for the Second Circuit has determined that "the provision in 18 U.S.C. § 3584(a) requiring that multiple prison terms `run consecutively unless the court orders that the terms are to run concurrently' [is] inapplicable to instances in which the federal sentence is imposed first,"Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 (2d Cir. 2005) (citing McCarthy v. Doe, 146 F.3d 118, 121-22 (2d Cir. 1998); Barden v. Keohane, 921 F.2d 476, 478 (3rd Cir. 1990)). Therefore, the BOP was not bound by the statutory provision presuming consecutive sentences in this case. In addition, requiring consecutive sentences here works an injustice, given this Court's unstated intention and the state court's stated intention that Crespo's federal and state sentences should run concurrently.
This Court recommends that the BOP designate the New York State correctional facility nunc pro tunc as the "place of imprisonment" for Crespo's federal sentence pursuant to 18 U.S.C. § 3621(b). This Court uses the word "recommends" advisedly, as there is a circuit split on whether a federal court has the authority to order concurrency when the state sentence has not yet been imposed; the Second Circuit has not yet decided this issue. See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 n. 1 (2d Cir. 2005).
Moreover, 18 U.S.C. § 3621(b) entrusts the designation of Crespo's place of imprisonment to the discretion of the BOP, not this Court. Pursuant to this statutory authority, the BOP is able to designate the facility in which Crespo served his state sentence as the place of his federal sentence, and in so doing, Crespo will receive credit for the time that he has already spent in state custody. See McCarthy, 146 F.3d at 122-23. This Court believes that the interests of justice strongly favor that exercise of the BOP's discretion under section 3621(b) in this case.
III. CONCLUSION
This motion is, therefore, transferred to the BOP for a determination of whether Crespo's request for nunc pro tunc designation should be granted. The BOP now has the Court's views and recommendation before it. If Crespo's request is denied, he may then seek judicial review by filing a petition for a writ of habeas corpus.
SO ORDERED: