JAMES M. MUNLEY, District Judge.
Before the court for disposition is Defendant Charles Eugene Nolden's motion for reconsideration of sentencing. The matter has been fully briefed and is ripe for disposition. For the reasons that follow, we find that the motion should be dismissed.
A grand jury returned a two-count indictment against Defendant Charles Eugene Nolden on March 18, 2009 charging him with the following two counts: Count 1, being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and Count 2, possession of stolen firearms, in violation of 18 U.S.C. § 922(j). (Doc. 1, Indictment).
Defendant pled guilty to Count 1 on October 1, 2009. (Doc. 33, Order accepting guilty plea). On January 27, 2010, the court sentenced him to, inter alia, a term of imprisonment of seventy-seven (77) months. (Doc. 42, Judgment). At the time of his sentencing, the plaintiff was serving a state court sentence. The court, however, did not indicate whether the federal sentence would run concurrently with defendant's state court sentence.
Defendant filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. In the motion, he asserted that his trial counsel was ineffective for failing to argue that his federal sentence should run concurrently with his state court sentence. (Doc. 66, Mot. to Vacate). The court granted the motion to the extent that it agreed to hold a hearing and consider argument on the issue of whether the federal sentence should run concurrently with the state sentence. (Doc. 77, Mem. & Order dated July 26, 2011). The court held the hearing on June 7, 2012 and counsel for the government and the defendant submitted post-hearing briefs.
After reviewing the parties' positions, the court ruled that the defendant's federal sentence should run partially concurrent to his state sentence. That is, it should start running concurrently as of the date this court sentenced defendant, January 10, 2010. (Doc. 99, Mem. & Order dated July 23, 2012). In our memorandum discussing the sentence, we noted:
Defendant contends that there is a period of time that he was imprisoned that has not been applied to any sentence and that the court should take this factor into account. The government points out, however, that when the defendant is placed in federal custody, the Bureau of Prisons will determine his minimum release date. If the defendant is not satisfied that he has received all the credit he is entitled to, he can seek appropriate relief at that point.
(Id. at 6 n.3).
The defendant filed the instant motion for reconsideration of sentence on April 19, 2013. (Doc. 102, Mot. for Recons.). He alleges that the Bureau of Prisons (hereinafter "BOP") has now determined his minimum release date, but it computed the date incorrectly. That is, the BOP did not credit his sentence for the period of time from the date of his arrest on the federal charges to the date the Pennsylvania Board of Probation and Parole re-committed him to state prison, which coincidently was the day before he was sentenced in federal court. This period is from August 8, 2008 to January 26, 2010. (Id. at 3). Defendant argues that he was incarcerated during this time, but never received credit on either his federal or state sentence.
Defendant indicates that the BOP initially did credit him with approximately eighteen months that covered this period of incarceration, but then in a later calculation removed the eighteen-month credit. Defendant asks the court to adjust his federal sentence by eighteen months to credit him for this time served.
On May 15, 2013, the court ordered the government to respond to the defendant's motion. (Doc. 103). On July 16, 2013, the government filed its response in the form of a motion to dismiss the defendant's motion for reconsideration. (Doc. 106). The government argued that the BOP's computation of defendant's maximum sentencing date is consistent with the court's previous ruling on the defendant's sentence. The government also argued that defendant's motion was a second or successive § 2255 motion and should be dismissed. (Id.)
We found that while the government's argument with regard to the BOP's sentencing argument may have been accurate, it was incomplete as it did not take into account the eighteen (18) months for which the defendant sought credit. (Doc. 111, Order of Sept. 15, 2013). We further found that the motion was not an impermissible section 2255 motion. (Id.) We thus denied the government's motion to dismiss on September 5, 2013, and directed the government to address the substance of the defendant's motion. (Id.) The court order also allowed the defendant to file a reply brief within fourteen (14) days of the filing of the government ...