United States of America v. Edgar Romero

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4656
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UNITED STATES OF AMERICA
v.
EDGAR ROMERO,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cr-379)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit LAR 34.1(a)
September 25, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges,
(Filed: September 29, 2009)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Edgar Romero, a native and citizen of Peru, was convicted of hindering his
removal from the United States. He appeals an order from the United States District
Court for the Middle District of Pennsylvania denying his motion seeking credit for a

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We dismissed Romero’s appeal because we lack jurisdiction to review a final1
order of removal against an alien who is removable by reason of having committed an
aggravated felony. Romero v. Att’y Gen., No. 06-1494 (3d Cir. July 24, 2006) (citing 8
U.S.C. §1252(a)(2)(C)).
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portion of the time he served in custody while awaiting removal. Because Romero did
not show that he had exhausted his administrative remedies, the District Court correctly
concluded that it lacked jurisdiction. We will therefore affirm.
I. Background
Romero came to the United States from Peru with his parents in 1983. In 1993, he
was convicted of robbery and sentenced to one to three years in prison. Ten years later, he
was convicted of domestic abuse and sentenced to a year in prison. While he was in a
New York state prison for the latter offense, immigration authorities instituted removal
proceedings against him and, after he completed his state sentence, he was transferred to
federal custody for the duration of those proceedings. In August 2005, an immigration
judge ordered Romero’s removal from this country, and he unsuccessfully appealed that
order to the Board of Immigration Appeals and our Court.1
As part of the removal process, Romero was taken to the Peruvian Consulate in
Patterson, New Jersey and asked to sign certain travel documents required by Peru. He
refused. On a second trip to the Consulate, he again refused to sign the travel documents.
On November 8, 2006, a grand jury in the Middle District of Pennsylvania charged
Romero with one count of hindering removal, in violation of 8 U.S.C. § 1253(a)(1)(B)

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We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over2
the District Court’s determination that it lacked jurisdiction. See Frett-Smith v.
Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008) (“[O]ur review of a dismissal for lack of
subject matter jurisdiction is plenary.”)
Title 18 U.S.C. § 3585(b) reads as follows:3
(b) Credit for prior custody.--A defendant shall be given
credit toward the service of a term of imprisonment for any
time he has spent in official detention prior to the date the
sentence commences--
(1) as a result of the offense for which the sentence
was imposed; or
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and (c). Following a bench trial, the District Court found Romero guilty and sentenced
him to 72 months in prison.
On August 28, 2008, Romero filed a motion in the District Court, asserting that the
time he had served in custody “from the date of his first refusal to sign the deportation
paperwork at the Peruvian Consulate” (App. 70) should be credited toward his sentence
for hindering removal. With his motion, Romero submitted a supporting legal
memorandum and a Bureau of Prisons Sentence Monitoring Computation Form that
indicates he did not receive credit for any time served prior to his sentencing. The
District Court issued a one-sentence order denying Romero’s motion because it lacked
jurisdiction. Romero then filed the present appeal, in which he argues that the District
Court does have jurisdiction and erred in denying his motion.
II. Discussion 2
Title 18 U.S.C. § 3585(b) provides that, under certain circumstances, a defendant3

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(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
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may be given credit toward the service of a term of imprisonment for time spent in
official detention prior to the date the sentence commences. The Supreme Court has held
that, under Section 3585(b), the Attorney General, acting through the Bureau of Prisons,
has the authority to determine whether a defendant is entitled to prior custody credit in the
first instance. United States v. Wilson, 503 U.S. 329, 334 (1992). Accordingly, district
courts do not have jurisdiction to hear an application for credit for time served until a
defendant has exhausted his administrative remedies by seeking credit from the Bureau of
Prisons and Attorney General. See United States v. Brann, 990 F.2d 98, 103-04 (3d Cir.
1993) (“[D]istrict courts do not have jurisdiction to grant credit for prior custody. ... Thus,
[the defendant] must first exhaust his administrative remedies ... by seeking any allowable
credit for his pretrial detention from the Attorney General.”).
Thus, the District Court was correct to steer clear of the merits of Romero’s
motion. Romero had the burden of demonstrating that he had exhausted administrative
remedies available through the Bureau of Prisons, and he simply failed to do that. He
included with his motion a Sentence Monitoring Computation Form generated by the
Bureau of Prisons, but that at most proves only what is conceded, namely that he was not
given credit for any of the time he was in custody before his sentencing. It does not prove

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anything about whether he pursued available administrative remedies to get such credit.
In an apparent effort to address that deficiency, he argues before us that he stated in his
moving papers in the District Court that he “sought relief through the Bureau of Prisons.”
(App. 78.) If a mere assertion in a legal memorandum were evidence, he might have
advanced his cause, but it is not. Romero did not provide any evidence that he has
exhausted his administrative remedies, and until he is able to do so and to carry his
burden of proof, the District Court will not have jurisdiction to consider his motion.
III. Conclusion
Because Romero did not show that he has exhausted his administrative remedies,
we will affirm the District Court’s order denying his motion.

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