UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
January 3, 2007
MARCOS TADEO GALAN-PAREDES, PETITIONER
WARDEN KAREN F. HOGSTEN, RESPONDENT.
The opinion of the court was delivered by: Judge Caldwell
On September 5, 2006, Petitioner, Marcos Tadeo Galan-Paredes, incarcerated at FCI-Allenwood, White Deer, Pennsylvania, filed a pro se petition under 28 U.S.C. § 2241 for a writ of habeas corpus, challenging the calculation of his sentence by the Federal Bureau of Prisons (the BOP). He alleges the BOP has erroneously refused to give him credit for time he spent in custody from June 10, 2001, the date of his arrest after a traffic stop, through October 25, 2001, the date of his federal indictment, a period of about four and one-half months.
No issue of exhaustion is presented, and we have authority to review the BOP's sentencing calculation by way of section 2241. See Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001); United States v. Smith, 101 F. Supp. 2d 332, 338 (W.D. Pa. 2000). The issue presented is whether the contested period was time spent under 18 U.S.C. § 3585(b)(1) in "official detention" on the federal conviction or time spent in "civil detention" (as Respondent here phrases it) awaiting the outcome of immigration proceedings. If the former, credit must be awarded; if the latter, then not.
On June 10, 2001, police in the City of Virginia Beach, Virginia, stopped Galan-Paredes for reckless driving. He was arrested and held in custody. He was also issued a traffic citation for reckless driving not involving an accident. (Doc. 2, traffic citation attached as an exhibit). The citation ordered him to appear in traffic court on July 6, 2001.*fn1
On July 6, 2001, Petitioner was sentenced on the traffic violation to a thirty-day loss of his driver's license, a fine of $130, and costs in the amount of $30. (Doc. 10, Resp't's Ex. 1, ¶ 6, Gemberling's penalty-of perjury declaration). After receiving the sentence for reckless driving, Respondent asserts Galan-Paredes "remained detained at the Virginia Beach County Jail in civil detention status" for the Bureau of Immigration and Customs Enforcement (ICE), the administrative successor to the INS. (Id., ¶ 7).
Respondent also asserts that "[o]n August 28, 2001, Galan-Paredes' detention continued at the Virginia Beach County Jail as he was detained in an Administrative Felony Deportation Proceedings status and charged with Removal Proceedings." (Id., ¶ 8). The government's brief on Petitioner's direct appeal of his criminal conviction indicates that August 28, 2001, was also the date Petitioner was interviewed by INS agent Ambrosone. In that brief, the government wrote:
[O]n August 28, 2001, I.N.S. Special Agent Nicholas Ambrosone (hereinafter "Ambrosone") made contact with Galan. Galan admitted to Ambrosone that he was a native and citizen of Columbia, that he had been previously deported and that he had not obtained permission before reentering the United States. (Presentence Report p. 3).
United States v. Galan-Paredes, supra, Brief of the Appellee, 2002 WL 32726060, at *3.
On October 25, 2001, Galan-Paredes was indicted in the United States District Court for the Eastern District of Virginia with illegal re-entry by a deported alien, (id., ¶ 9), a violation of 8 U.S.C. § 1326(a) and (b)(2). After a plea of guilty, he was sentenced on April 11, 2002, to 70 months' imprisonment. (Id.). His presumptive parole date is February 15, 2007, according to the BOP's website, www.bop.gov.
The BOP credited his sentence for the period of October 25, 2001, the date of his federal indictment, through April 10, 2002, the day before he was sentenced. (Id., ¶ 10). The BOP has refused to credit his sentence for the time from June 10, 2001, the date of his arrest after the traffic stop, through October 24, 2001, the day before he was indicted, on the basis that he was being held during that time by ICE in civil detention pending a final determination of deportability and was not in "official detention" on his federal conviction within the meaning of 18 U.S.C. § 3585(b)(1).
In part, Galan-Paredes contends that he is entitled to credit for the period in question simply because his custody ultimately led to the criminal charge of violating immigration law. It is immaterial that he might have been initially held in ICE custody during this time for immigration purposes only. Because the detention led to the conviction, the detention should be considered time spent in official detention on his federal conviction for which he should receive credit under 18 U.S.C. § 3585(b)(1).*fn2 Petitioner adds that it is unrealistic to believe that once he reentered the country, his detention would simply be an administrative one to determine the outcome civilly under the immigration laws. It was inevitable he would be charged once his immigration history was made clear.
In opposition, Respondent argues that Galan-Paredes is not entitled to credit because under Program Statement 5880.28, Sentence Computation Manual, "official detention" under section 3585(b) does not include time spent in ICE "civil custody" pending a final determination of deportability.*fn3 Respondent asserts that during the time in question Galan-Paredes was in custody pending civil deportation proceedings. (Doc. 10, Resp't's Ex. 1, ¶ 11, Gemberling's penalty-of perjury declaration). Hence, he is not entitled to credit on his sentence for that period.
We have been unable to locate much authority on this issue.*fn4 It seems that only four district courts have addressed it: Ghadiri v. Sniezek, 2006 WL 3023034 (N.D. Ohio); Alba-Tovar v. United States, 2006 WL 2792677 (D. Or.); Guante v. Pugh, 2005 WL 3867597 (S.D. Ga.)(Nangle, J.); and Fletcher v. Pugh, 2004 U.S. Dist. Lexis 29450 and 29451 (S.D. Ga.)(Bowen, J.). All four agree that in light of the Program Statement and the case law, time spent in ICE custody awaiting the outcome of removal proceedings is not time in official detention that must be credited under section 3585(b)(1) to a federal sentence imposed on a conviction that occurs subsequent to a petitioner's civil detention or custody by ICE. As further support, three of the cases cite Reno v. Koray, 515 U.S. 50, 60-61, 115 S.Ct. 2021, 2026-27, 132 L.Ed.2d 46, 56-57 (1995), where the Supreme Court stated that BOP Program Statements are entitled to "some deference." See Alba-Tovar, supra, 2006 WL 2792677 at *2 n.2; Guante, supra, 2005 WL 3867597 at *2 n.2; Fletcher, supra, 2004 U.S. Dist. Lexis 29450 at *5 n.5.
We agree with this statement of the law. However, as Guante illustrates, not all of the time spent in ICE custody is necessarily spent "pending a final determination of deportability." Instead, it might be time spent that should be credited to the federal sentence, and we are not sure on the record before us that we can conclude that all the time at issue here was spent in ICE civil detention.
Guante presents a fact pattern similar to the instant case. In Guante, the petitioner was arrested on state drug charges on May 16, 2000. He finished serving a six-month state sentence on February 6, 2001, and ICE then took custody, scheduling his removal for March 8, 2001. However, in the meantime, ICE discovered the petitioner had previously been removed based on a conviction for an aggravated felony. On March 8, 2001, the petitioner admitted in an interview with ICE agents that this was true. ICE cancelled the removal and held the petitioner pending prosecution for illegal re-entry. 2005 WL 3867597 at *1.
On April 24, 2001, the petitioner was indicted. He pled guilty and was sentenced to seventy months in prison. The BOP gave the petitioner credit from the date of the indictment to May 4, 2001.*fn5 The petitioner claimed that he was entitled to credit for time in custody after his state sentence ended on February 6, 2001, to the date of his indictment, April 24, 2001. Alternatively, he claimed he was entitled to credit between the date he was to be removed, March 8, 2001, and the date of his indictment.
In light of Program Statement 5880.28, case law stating that removal proceedings are civil in nature, and Reno, supra, the court rejected the claim that the petitioner was entitled to credit beginning on February 6, 2001, because this time was spent in ICE civil detention. However, the court ruled that the petitioner was entitled to credit for the time between March 8, 2001, the date of his ICE interview, and April 24, 2001, the date of his indictment, because the government conceded that after March 8, the day it was confirmed that the petitioner had been previously deported, he was being held for criminal prosecution for illegal entry. 2005 WL 3867597 at *3. It followed that Program Statement 5880.28 did not apply since from that point on the petitioner was no longer being held for civil removal proceedings. The court then reasoned that credit should have been awarded for the time between March 8, 2001, and April 24, 2001, stating that "the petitioner should not be penalized for the government's decision not to bring him before a magistrate judge for initial appearance when his detention was pending criminal prosecution." 2005 WL 3867597 at *3.
Similarly, in the instant case, Galan-Paredes was initially held for immigration proceedings, but he might have submitted to an ICE interview on August 28, 2001, in which he admitted to illegal re-entry (if the government's brief on his direct appeal of his criminal conviction is correct), thereby resulting in the indictment of October 25, 2001. If so, it appears that, just as in Guante, the government shifted from holding Petitioner for removal proceedings to holding him for criminal proceedings.
We recognize certain factual distinctions between Guante and the instant case. In Guante, the petitioner had been scheduled for removal, and the removal was cancelled so that he could be prosecuted. In the instant case, no decision on removal had been made by August 28, 2001, and Respondent supplies evidence that on that date Petitioner was detained in "Administrative Felony Deportation Proceedings" and "charged with Removal Proceedings." Nonetheless, the petitioner in Guante was probably also kept administratively on track for removal while deportation was halted so that he could be prosecuted (and perhaps incarcerated) for illegal re-entry. Thus, the relevant fact is whether ICE decided to put off removal proceedings in preference to criminal prosecution. If ICE decided to do so, we follow Guante's reasoning to conclude that Petitioner should receive credit for the time between the date that decision was made (probably August 28) and the date of the indictment. This could be a period of about sixty-nine days, if it turns out to be from August 28, 2001, to October 25, 2001.
We will thus require additional evidence from Respondent concerning whether ICE made a decision that Galan-Paredes' case was appropriate for criminal prosecution and if so, when. We leave it up to Respondent and ICE to provide the necessary evidence. If in documentary form, the relevant portion of the ICE file should be submitted. Alternatively, affidavits or penalty-of perjury declarations may be used. If available, a declaration from INS agent Ambrosone should affirm whether or not the agent decided that criminal prosecution was appropriate. Respondent should also submit any ICE form that was filed on or after August 28, 2001, relating to Galan-Paredes's detention "in an Administrative Felony Deportation Proceedings status and charged with Removal Proceedings."
We will issue an appropriate order.
AND NOW, this 3rd day of January, 2007, it is ordered that:
1. Respondent shall file evidence concerning whether ICE made a decision that Galan-Paredes' case was appropriate for criminal prosecution and if so, when that decision was made.
2. If available, a declaration from INS agent Ambrosone should affirm whether or not the agent decided that criminal prosecution was appropriate.
3. Respondent should also submit any ICE form that was filed on or after August 28, 2001, relating to Galan-Paredes's detention "in an Administrative Felony Deportation Proceedings status and charged with Removal Proceedings."
4. Respondent shall comply with this order within fifteen days of its date.
William W. Caldwell United States District Judge