Williams v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nolan Williams
v. 	Case No. 22-cv-564-JL
Warden, FCI Berlin1
REPORT AND RECOMMENDATION
Before the court, in this petition (Doc. No. 1) for a writ of
habeas corpus under 28 U.S.C. § 2241, is the respondent Warden’s
motion for summary judgment (Doc. No. 10). 	Petitioner, Nolan
Williams, through counsel, has objected (Doc. No. 17). 	Mr. Williams
has claimed that the Federal Bureau of Prisons (“BOP”) has violated
the First Step Act (“FSA”) by deeming him ineligible to earn FSA
time credits during his 360-month sentence for his racketeering
conviction, based on 6-month consecutive sentence for a judgment of
conviction that he has not yet begun to serve.
For reasons stated below, there are no material facts in
dispute. 	Applying the pertinent statutes, considering the BOP’s
practice of aggregating consecutive sentence terms in similar
circumstances, and persuaded by the reasoning of decisions in
analogous cases, this court concludes that Mr. Williams’s
consecutive sentences are properly treated as one sentence, making
1Nolan Williams was an FCI Berlin prisoner when he filed this
case. 	The petitioner is currently in the custody of the BOP
Residential Reentry Management Center in Raleigh, North Carolina.
See BOP Online Inmate Locator, https://www.bop.gov/inmateloc/ (last
visited July 28, 2023).
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him ineligible to earn any FSA time credits and warranting an order
granting the Warden’s summary judgment motion.
Habeas Relief and Summary Judgment
A federal prisoner claiming to be “in custody in violation of
the Constitution or laws or treaties of the United States” may
petition for habeas relief. 	28 U.S.C. § 2241(c)(3). 	The remedy has
been traditionally available to prisoners challenging the BOP’s
computation of their sentences. 	See Thornton v. Sabol, 620 F. Supp.
2d 203, 206 (D. Mass. 2009). 	The petitioner bears the burden of
proving that his continuing detention violates his federal rights.
See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
A district court ruling upon a petition for the writ of habeas
corpus may hear motions for summary judgment. 	Whitaker v. Meachum,
123 F.3d 714, 716 (2d Cir. 1997). 	Summary judgment is appropriate
when “‘there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.’”
Bader v. Warden, No. 02-cv-508-JD, 2003 DNH 90, 2003 U.S. Dist.
LEXIS 8955, at *8-9, 2003 WL 21228520, at *3 (D.N.H. May 28, 2003)
(citations omitted), aff’d, 488 F.3d 483 (1st Cir. 2007). 	A
“material fact” is one that has the “potential to affect the outcome
of the suit.” 	Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st
Cir. 2017) (citation and internal quotation marks omitted). 	A
“genuine dispute” exists if a reasonable factfinder could resolve
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the disputed fact in the nonmovant’s favor. 	Ellis v. Fidelity Mgt.
Trust Co., 883 F.3d 1, 7 (1st Cir. 2018).
Background2
I. 	Criminal Proceedings
In May 1999, the U.S. District Court for the Eastern District
of New York entered a judgment of conviction upon Mr. Williams’s
plea of guilty to racketeering, in violation of 18 U.S.C. § 1962.
The court sentenced him to a 360-month term of imprisonment and a
five-year term of supervised release. 	See United States v.
Williams, No. 1:97-cr-01146-ILG-4 (E.D.N.Y. May 13, 1999) (ECF No.
212) (“Williams I”); see also Doc. No. 10-3.
In January 2018, while he was serving his Williams I sentence,
Mr. Williams was involved in an altercation with another prisoner.
A grand jury indicted him on felony offenses, including assault
causing serious bodily injury in violation of 18 U.S.C. § 113(a)(6),
and possession of contraband in prison in violation of 18 U.S.C.
§ 1791(a)(2). 	See United States v. Williams, No. 4:18-cr-00093-DAP
(N.D. Ohio) (“Williams II”). 	Mr. Williams pleaded guilty. 	In
October 2018, the court in Williams II sentenced him to a 35-month
sentence for the assault conviction to be served concurrently to his
Williams I sentence, and to a 6-month sentence for the possession of
contraband conviction to be served consecutively to his racketeering
2 The background facts are undisputed, except as noted.
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and assault terms of incarceration. 	See Williams II (N.D. Ohio Oct.
17, 2018) (ECF No. 11); see also Doc. Nos. 10-4, 10-5.
II. 	First Step Act
In December 2018, Congress passed, and the President signed
into law, the FSA,3 which establishes a new sentence credit program
that operates separately from the “good conduct” credits prisoners
may accumulate. 	The FSA permits eligible prisoners to earn FSA
“time credits” towards their sentences if they complete programs and
activities to reduce their risk of recidivism. 	See 18 U.S.C.
§ 3632(d)(4). 	But not every prisoner can earn FSA time credits.
The FSA contains “multiple eligibility requirements, including an
extensive list of convictions that render a prisoner ineligible to
earn time credits.” 	Teed v. Warden, No. 1:22-CV-1568, 2023 WL
1768121, at *2, 2023 U.S. Dist. LEXIS 18963, at *4 (M.D. Pa. Feb. 3,
2023) (citing 18 U.S.C. § 3632(d)(4)(D)), aff’d, No. 23-1181, 2023
WL 4556726, 2023 U.S. App. LEXIS 18026 (3d Cir. July 17, 2023).
Neither racketeering nor Mr. Williams’s assault conviction is
listed as an offense that disqualifies a prisoner from earning time
credits. 	But prisoners serving sentences for possession of
contraband cannot earn time credits under the FSA:
(D) Ineligible Prisoners. 	A prisoner is ineligible to
receive time credits under this paragraph if the prisoner is
serving a sentence for a conviction under any of the following
provisions of law:
3 See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194 (enacted Dec. 21, 2018).
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. . . .
(xxix) Section 1791 [18 U.S.C. § 1791], relating to
providing or possessing contraband in prison.
. . . .
18 U.S.C. § 3632(d)(4)(D)(xxix).
III. Sentence Calculations
The BOP has calculated Mr. Williams’s projected release date
(January 9. 2024), by aggregating his concurrent and consecutive
terms of incarceration into one 366-month sentence, and then
calculating his good conduct sentence credits. 	See Sentence
Monitoring Computation Data (Jan. 9, 2023) (Doc. No. 10-5). 	The BOP
deems Mr. Williams to be ineligible to earn FSA time credits during
any part of his sentence because of the contraband possession
component of his sentence.
The statute cited by the BOP in aggregating Mr. Williams’s
sentence is 18 U.S.C. § 3584(c), which provides as follows:
(c) Treatment of multiple sentence [sic] as an
aggregate.-- Multiple terms of imprisonment ordered to run
consecutively or concurrently shall be treated for
administrative purposes as a single, aggregate term of
imprisonment.
Id.
Mr. Williams asserts that if he had been allowed to earn FSA
time credits and to have them credited towards his sentence, he
would have been released more than a year ago, given the hours of
rehabilitative programs and activities he has completed. 	The
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specific question presented by Mr. Williams’s § 2241 petition -- and
the Warden’s motion for summary judgment -- is whether the BOP
permissibly interpreted 18 U.S.C. § 3632(d)(4)(D) as indicating that
Mr. Williams was “serving a sentence” for a disqualifying offense,
before the onset of his final 6-month term of incarceration imposed
for his contraband possession conviction.
Discussion
The BOP is the agency that administers the FSA’s earned time
provisions. 	See, e.g., 18 U.S.C. §§ 3621(h), 3632(d)(4)(A) & (C).
When federal courts review an agency’s construction of a statute
that it administers, the agency’s interpretation is reviewed “de
novo,” applying the “established principles of deference,” beginning
with the language of the relevant statute. 	Perez-Olivo v. Chavez,
394 F.3d 45, 48 (1st Cir. 2005).
The BOP maintains that it is the agency’s duty and longstanding
practice to treat “[m]ultiple terms of imprisonment ordered to run
consecutively” as “a single, aggregate term of imprisonment” for
“administrative purposes,” 18 U.S.C. § 3584(c), including sentence
credit calculations. 	See Chambers v. Warden Lewisburg USP, 852 F.
App’x 648, 650 (3d Cir. 2021) (“The BOP was permitted to aggregate
[petitioner’s] otherwise-consecutive sentences into a single unit
for purely administrative purposes, such as - at issue here -
calculating [good conduct time credits] under 18 U.S.C. § 3624.”);
Chinnici v. Pelkie, No. 15-CV-124-SM, 2015 WL 4716233, at *1, 2015
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U.S. Dist. LEXIS 103855, at *3 (D.N.H. July 16, 2015) (BOP
aggregated petitioner’s separately-imposed 90-month and 12-month
terms of incarceration into a single sentence, before reducing the
prisoner’s good conduct time as a sanction for a disciplinary
offense during his final year of incarceration), R&R approved, 2015
WL 4716233, 2015 U.S. Dist. LEXIS 103853 (D.N.H. Aug. 6, 2015).
Here, the BOP aggregated Mr. Williams’s consecutive terms of
imprisonment to form a single sentence and concluded, in light of 18
U.S.C. § 3632(d)(4)(D)(xxix), that he is ineligible to earn any FSA
time credits. 	Mr. Williams counters that two judgments of
conviction have generated his consecutive sentence terms, which
should be treated as two distinct sentences, so that he may earn
time credits under the FSA for the duration of his racketeering
sentence, even if he cannot accrue additional time credits during
his final 6-month term of incarceration.
The consensus of the courts that have addressed claims like Mr.
Williams’s in analogous cases favors the BOP’s position here, that
the consecutive term of imprisonment for a disqualifying offense
renders the prisoner ineligible to earn FSA time credits during any
part of his sentence.4 	Reasoning that the BOP’s sentence
4 See, e.g., United States v. Bryant, No. 3:04-CR-00047, 2023 WL
4355053, at *4 (W.D. Va. July 5, 2023) (“Because Bryant is serving
his . . . sentence [for his disqualifying conviction] as part of a
single, aggregate term of imprisonment, he is statutorily ineligible
to receive FSA time credits.” (citations and internal quotation
marks omitted)); accord Teed v. Warden Allenwood FCI Low, No. 23-
1181, 2023 WL 4556726, at *1, 2023 U.S. App. LEXIS 18026, at *3-4
(3d Cir. July 17, 2023) (per curiam) (unpublished, non-
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calculations and eligibility determinations are administrative
functions, those courts have construed 18 U.S.C. § 3632(d)(4)(D)
together with 18 U.S.C. § 3584(c), in finding that the BOP’s
construction of the statute is reasonable, consistently applied, and
the appropriate subject of deference, or that a straightforward
reading of the two statutes dictates the outcome. 	Compare Cortez,
2023 WL 4274957, at *2, 2023 U.S. Dist. LEXIS 112467, at *4
(“because Petitioner is in fact serving his [consecutive,
disqualifying] sentence as part of his “single, aggregate term of
imprisonment,” he is statutorily ineligible to receive FSA time
precedential); Cortez v. Hemingway, No. 2:22-CV-12234, 2023 WL
4274957, at *2, 2023 U.S. Dist. LEXIS 112467, at *4 (E.D. Mich. June
29, 2023); Martinez v. Rosalez, No. 1:22-CV-1297-LY-DH, 2023 U.S.
Dist. LEXIS 63578, at *11, 2023 WL 2904579, at *4 (W.D. Tex. Apr. 10,
2023) (“If a prisoner is serving multiple, consecutive sentences,
and one such offense is among the FSA’s enumerated disqualifying
offenses . . . then the prisoner is ineligible to earn FSA time
credits.”), R&R approved, 2023 U.S. Dist. LEXIS 83519, 2023 WL
3441566 (W.D. Tex. May 12, 2023), appeal filed, No. 23-50406 (5th
Cir. May 30, 2023); Ledford v. LeMaster, No. 23-30-DLB, 2023 U.S.
Dist. LEXIS 52677, at *6, 2023 WL 2905376, at *2-3 (E.D. Ky. Mar.
26, 2023); Dahda v. Hudson, No. 23-cv-3008-JWL, 2023 WL 2815920, at
*1-2, 2023 U.S. Dist. LEXIS 38141, at *2-4 (D. Kan. Mar. 7, 2023);
Giovinco v. Pullen, No. 3:22-cv-1515, 2023 WL 1928108, at *2-3, 2023
U.S. Dist. LEXIS 22810, at *5-9 (D. Conn. Feb. 10, 2023), appeal
filed, No. 23-251 (2d Cir. Feb. 27, 2023); Frommie v. BOP, 4:22-CV-
04082, 2022 WL 18399537, at *2-5, 2022 U.S. Dist. LEXIS 236489, at
*6-11 (D.S.D. Aug. 23, 2022), R&R adopted, 2022 WL 18399536, 2022
U.S. Dist. LEXIS 236490 (D.S.D. Nov. 30, 2022); Sok v. Eischen, No.
22-cv-458, 2022 WL 17156797, at *2-6, 2022 U.S. Dist. LEXIS 212513,
at *6-15 (D. Minn. Oct. 26, 2022), R&R adopted, 2022 WL 17128929,
2022 U.S. Dist. LEXIS 212182 (D. Minn. Nov. 22, 2022); see also
Crawley v. FCI Berlin Warden, No. 1:23-cv-00262-SE (D.N.H. July 7,
2023) (R&R) (ECF No. 3) (recommending dismissal of § 2241 petition
because of consecutive sentence term imposed for disqualifying
conviction).
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credits”), with Giovinco, 2023 WL 1928108, at *2-3, 2023 U.S. Dist.
LEXIS 22810, at *5-9 (“BOP’s interpretation of section 3632(d)(4)(D)
is reasonable in light of its long-standing obligation to aggregate
sentences for administrative purposes” (footnote omitted)); see also
Rose v. Yates, No. 222CV00214BSMPSH, 2023 WL 3198298, at *3, 2023
U.S. Dist. LEXIS 76553, at *6-7 (E.D. Ark. May 2, 2023) (noting
BOP’s history of applying § 3584(c) in assessing eligibility for
sentence-reducing incentives under residential drug abuse treatment
programs under 18 U.S.C. § 3621(e), in finding petitioner to be
ineligible for FSA time credits because of his consecutive term of
imprisonment for a disqualifying offense), R&R adopted, 2023 WL
3601186, 2023 U.S. Dist. LEXIS 90209 (E.D. Ark. May 23, 2023).
Mr. Williams is serving a sentence arising from two separate
judgments, while the cited cases generally concern multiple
convictions and sentence terms imposed through a single judgment.
But the cases are not rendered inapposite for that reason. 	Section
3584(c) contains no statutory language that would restrict sentence-
term-aggregation to cases involving only a single judgment of
conviction. 	A different part of the same statute, 18 U.S.C.
§ 3584(a), manifests Congress’s contemporaneous awareness that
consecutive sentence terms may arise from single or multiple
judgments of conviction, imposed at once or at different times.5
5 The cited provision, 18 U.S.C. § 3584(a), states as follows:
(a) Imposition of concurrent or consecutive terms. If
multiple terms of imprisonment are imposed on a defendant at
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Congress could have enacted a statute which explicitly states that
only those multiple terms of imprisonment imposed at the same time
are to be aggregated. 	The absence of such limiting language places
all consecutive or concurrent terms of incarceration like Mr.
Williams’s within the scope of § 3584(c).
Mr. Williams asks this court to follow the lead of cases
concerning sentence reductions under 18 U.S.C. § 3582(c)(2), which a
court may order if the Sentencing Guidelines range has changed since
the criminal defendant was sentenced. 	See, e.g., United States v.
Parker, 472 F. App’x 415, 417 (7th Cir. 2012) (defendant ineligible
for sentence reduction following retroactive Guidelines amendment
that impacted only the expired part of his sentence). 	In those
cases, courts have treated consecutive terms of imprisonment as
distinct sentences.
The First Circuit has succinctly explained why 18 U.S.C.
§ 3584(c) does not require the district court to aggregate the
criminal defendant’s consecutive sentences in such cases:
Section 3584(c) does not support [the criminal
defendant’s] position because it specifies that aggregation is
“for administrative purposes,” and the issue at hand is
judicial, not administrative. 	The BOP is responsible for
administration of sentences. 	A sentence reduction under
§ 3582(c)(2), on the other hand, involves discretionary
decision-making by the district court and cannot be described
as administrative.
the same time, or if a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or consecutively
. . . .
18 U.S.C. § 3584(a).
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United States v. Vaughn, 806 F.3d 640, 643-44 (1st Cir. 2015)
(citing United States v. Wilson, 503 U.S. 329, 335 (1992) (“After a
district court sentences a federal offender, the Attorney General,
through the BOP, has the responsibility for administering the
sentence.”)).
At issue here are BOP decisions affecting Mr. Williams’s
release date based on his sentence credits and determinations
regarding his eligibility to earn time towards shortening his time
in BOP custody. 	Those actions serve administrative purposes in the
BOP’s execution of Mr. Williams’s sentence. 	Vaughn and similar
cases regarding sentence reductions under § 3582(c)(2) do not
support the petitioner’s arguments.
Mr. Williams also argues that § 3584(c)’s reference to
“administrative purposes” limits the scope of that statute to the
BOP’s sentence computations, and not to program eligibility
decisions. 	But that argument finds no support in the statutory
language or in any cases concerning similar circumstances. 	See,
e.g., Moreno v. Ives, 842 F. App’x 18, 21-22 (9th Cir. 2020) (“no
such limit exists in the language of the statute, and other courts
have recognized that the statute applies to all administrative
determinations made by BOP”).
Mr. Williams argues that the court should apply the rule of
lenity to § 3632(d)(4)(D) in considering his eligibility to earn
time credits under the FSA. 	Even if this court were to assume that
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§ 3632(d)(4)(D) the rule of lenity could apply in these
circumstances, cf. Perez-Olivo, 394 F.3d at 53 (doubting
applicability of rule of lenity to BOP’s implementation of good
conduct time statute), this court notes that “‘the rule of lenity
applies only if, after seizing everything from which aid can be
derived, we can make no more than a guess as to what Congress
intended.’” 	Id. 	Here, no such uncertainty exists, with respect to
the applicability of § 3584(c) in Mr. Williams’s circumstances and
the effect upon his eligibility for FSA earned time credits under
§ 3632(d)(4)(D), in light of the statutes’ terms, the BOP’s
reasonable interpretation, and the pertinent cases. 	Accordingly,
the district judge should grant the Warden’s motion, deny the
petition, and close this case.
Conclusion
For the foregoing reasons, the district judge should grant the
Warden’s motion for summary judgment (Doc. No. 10), deny the
petition (Doc. No. 1), and direct the clerk’s office to enter
judgment and close the case. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of this
notice. 	The objection period may be extended upon motion. 	Failure
to file any objection within the specified time waives the right to
appeal the district court’s Order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016). 	Only those issues
raised in the written objections “‘are subject to review in the
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district court,’” and any issues “‘not preserved by such objection
are precluded on appeal.’” 	Id. (citations omitted).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 1, 2023
cc: 	Craig E. Francis, Esq.
Heather A Cherniske, Esq.
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