USA v. Wenger

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES 	PLAINTIFF
V. 	Criminal No. 5:19-CR-50115-001
AUSTIN WENGER 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On December 29, 2025, Austin Wenger (Thompson) filed a pro se Motion to be
Transferred to Federal Custody (ECF No. 35). The Government responded to the Motion on
January 30, 2026. (ECF No. 38). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), this
matter was referred to the undersigned for the purposes of making a report and recommendation.
(ECF No. 81). 	For the reasons explained below, it is recommended that Wenger’s Motion be
DENIED.
On November 20, 2019, Wenger was named in a one count Indictment in the Fayetteville
Division of U.S. District Court, charging him with one count of felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 	(ECF No. 1). On November 21, 2019, U.S.
Magistrate Judge Erin Wiedemann granted the Government’s Petition for Writ of Habeas Corpus
Prosequendum (ECF Nos. 5, 6) and the Writ directed the Arkansas Department of Corrections to
produce Wenger for his arraignment in federal court. It appears undisputed from the Final
Presentence Investigation Report (ECF No. 23) and from records of the Washington County
Circuit Court, that Wenger was in state custody at that time as he had been arrested on September
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6, 2019, resulting in the State’s prosecution of Wenger for multiple felonies in 72CR19-2365 and
72CR19-2632.1
Wenger was arrested on the federal gun charge, appeared for arraignment with private
counsel, and was detained on the writ. (ECF Nos. 7, 10-11). On February 3, 2020, Wenger pled
guilty (ECF Nos. 16, 17) and was sentenced by Chief Judge Timothy L. Brooks on May 8, 2020.
(ECF No. 30). 	The Judgment reflects Wenger received the following sentence of imprisonment:
Two hundred sixty-two (262) months, to run concurrently with any undischarged
term of imprisonment in Washington County, Arkansas, Circuit Court, Docket
Numbers CR19-2632 and CR19-2365, pursuant to USSG § 5G1.3(c), with credit
for time served in state and federal custody since September 6, 2019.
(ECF No. 33).
Approximately one month later and on June 3, 2021, Wenger was sentenced by Circuit
Judge Mark Lindsay to 240 months in the Arkansas Department of Corrections upon pleading
guilty to attempted capital murder, kidnapping, a terroristic act, discharging a weapon from a
vehicle and illegal possession of a firearm in Washington County Circuit Court cases CR19-2632
and CR19-2365. (ECF No. 38-1). Wenger’s state court Sentencing Orders provide that the state
court sentence of 240 months would run concurrent to Wenger’s federal sentence, and Wenger
was to receive 539 days of jail time credit.
The Government contends that Wenger’s motion to be transferred to federal custody is
misplaced because Wenger never left primary state custody; rather, he appeared on a writ from
state custody and was returned to state custody following his federal sentencing. The Government
correctly points out that transferring an individual from state to federal custody via a writ does not
ordinarily relinquish primary custody which was vested in the State of Arkansas, citing United
1 https://caseinfo.arcourts.gov/opad/case/72CR-19-2632 (February 16, 2026).
https://caseinfo.arcourts.gov/opad/case/72CR-19-2365 (February 16, 2026).
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States v. Cole, 416 F.3d 894 (8th Cir. 2005); Wiseman v. Wachendorf, 984 F.3d 649, 654 (8th Cir.
2021).
As explained in Wiseman, under the “doctrine of primary jurisdiction,” a prisoner serving
a term in state custody generally begins to serve a federal sentence when the United States assumes
primary jurisdiction over the prisoner and the prisoner is presented to serve his federal sentence.
Wiseman, 984 F.3d at 654, quoting Elwell v. Fisher, 716 F.3d 477, 481 (8th Cir. 2013); see also
18 U.S.C. § 3585(a). A federal sentence does not commence, however, “when the United States
merely takes physical custody of a prisoner who is subject to another sovereign's primary
jurisdiction.” 	Elwell, 716 F.3d at 481. The first sovereign to establish physical custody over a
criminal defendant retains primary jurisdiction until it releases jurisdiction. Id. 	And not every
change in custody constitutes a release of primary jurisdiction. For example, when a State with
primary jurisdiction transfers a prisoner to the United States pursuant to a writ of habeas corpus
ad prosequendum, the prisoner is considered merely “on loan” from the State. Id. at 481-82.
Here, the record is undisputed that Wenger appeared in federal court on a writ of habeas
corpus ad prosequendum and there is no evidence that State of Arkansas relinquished its primary
jurisdiction over him. See Johnson v. Gill, 883 F.3d 756, 765 (9th Cir. 2018) (“Generally, a
sovereign can only relinquish primary jurisdiction in one of four ways: 1) release on bail; 2)
dismissal of charges; 3) parole; or 4) expiration of sentence.” Elwell, 716 F.3d at 481 (citation and
quotation omitted)). Because Wenger has not satisfied his state court sentence of imprisonment,
he is not entitled to transfer to federal custody.
IT IS THEREFORE RECOMMENDED that Wenger’s Motion to be Transferred to
Federal Custody (ECF No. 35) be DENIED.
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The parties have fourteen days from receipt of our report and recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of facts. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
RECOMMENDED this 17th day of February 2026.
__________________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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