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United States of America v. Gilberto Rodriguez

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


November 3, 2011

UNITED STATES OF AMERICA
v.
GILBERTO RODRIGUEZ

The opinion of the court was delivered by: (Judge Conner)

ORDER AND NOW, this 3rd day of November, 2011, upon consideration of the motion for a judicial recommendation (Doc. 58) filed by defendant Gilberto Rodriguez ("Rodriguez"), wherein Rodriguez requests that the court recommend to the Bureau of Prisons ("BOP") that the BOP designate his state correctional facility, nunc pro tunc, as a federal prison and credit time served in state custody to his federal sentence,*fn1 and wherein Rodriguez states that he has filed a request to the BOP's Designation and Sentence Computation Center, and it appearing that pursuant to 18 U.S.C. § 3621(b), "[t]he Bureau of Prisons shall designate the place of the prisoner's imprisonment," which may be "any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise . . . that the Bureau determines to be appropriate and suitable" upon consideration of five statutorily defined factors, see id. §§ 3621(b)(1)-(b)(5), and the court finding that the decision of whether to grant Rodriguez's request is within the sole discretion of the BOP, see id. § 3621(b); Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991) (holding that BOP had discretion to order state and federal sentences run concurrently when federal sentence imposed prior to state sentence and state judge intended state sentence to run concurrently), and the court concluding that Rodriguez is currently seeking credit for time served in state custody with the appropriate authority, the BOP Designation and Sentence Computation Center, see BOP Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence, at 5 (2003), and unless and until the BOP inquires with this court regarding whether Rodriguez's federal and state sentences should run concurrently or consecutively, it is not the proper place of this court to make any such recommendation, see Barden, 921 F.2d at 480 (noting that federal court was powerless to order that federal and state sentences run concurrently where federal sentence imposed prior to imposition of state sentence) (citing Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir. 1976)),*fn2 it is hereby ORDERED that the motion for judicial recommendation (Doc. 58) is DENIED.

CHRISTOPHER C. CONNER United States District Judge


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