Daniel A. Rodriguez v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14114
____________________
DANIEL A. RODRIGUEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-23867-JEM
____________________
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2 Opinion of the Court 20-14114
Before J ILL PRYOR , NEWSOM , and G RANT, Circuit Judges.
PER CURIAM:
Appellant Daniel A. Rodriguez filed a motion under
28 U.S.C. § 2255 challenging the 37-month sentence the district
court imposed upon revocation of his supervised release. Rodri-
guez argues that the sentence was illegal because it exceeded the
24-month statutory maximum.
The district court concluded that it lacked jurisdiction over
Rodriguez’s § 2255 motion because Rodriguez was not “in cus-
tody” on the revocation sentence when he filed his § 2255 motion.
28 U.S.C. § 2255(a). The court therefore denied the motion. Be-
cause we agree with the district court that Rodriguez was not in
custody
on the revocation sentence when he filed the motion, we
affirm.
I.
In 1994, Rodriguez was charged with several crimes includ-
ing two counts of being a felon in possession of a firearm (the “1994
criminal case”). He was convicted of the felon-in-possession
charges and sentenced to 272 months’ imprisonment followed by
a term of supervised release. After the Supreme Court handed
down its decision in
Johnson v. United States, 576 U.S. 591 (2015),
Rodriguez filed a § 2255 motion challenging his sentence as uncon-
stitutional. The district court granted the motion and reduced Ro-
driguez’s sentence to 120 months (10 years) of imprisonment fol-
lowed by a term of supervised release By that time, Rodriguez had
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20-14114 Opinion of the Court 3
already served approximately 19 years of his 272-month sentence,
so the district court adjudged him eligible for immediate release.
The Bureau of Prisons (“BOP”) calculated that Rodriguez had over-
served his 10-year sentence by 3,587 days.
Upon his release from prison, Rodriguez began to serve his
term of supervised release. In 2017, while he was on supervised re-
lease, he was caught selling and sending controlled substances to
federal prisoners and laundering the proceeds. Based on this new
criminal conduct, the government initiated proceedings to revoke
Rodriguez’s supervised release (the “revocation proceedings”) and
a new criminal case (the “2017 criminal case”), in which he was
charged with drug-distribution and money-laundering offenses.
In the revocation proceedings, the district court found that
Rodriguez had violated the conditions of supervised release im-
posed in the 1994 criminal case, revoked his supervised release, and
imposed a 37-month custodial sentence. Rodriguez served no addi-
tional time on the revocation sentence, however, because the BOP
gave Rodriguez credit for the time he had previously overserved
on the sentence imposed in the 1994 criminal case. Thus, the revo-
cation sentence was discharged on the same day that it was im-
posed, April 10, 2018. After the revocation sentence was dis-
charged, Rodriguez was left with 2,461 days of banked time from
his overservice of the sentence from the 1994 criminal case.
In the 2017 criminal case, Rodriguez pled guilty to drug-dis-
tribution and money-laundering offenses. At the sentencing
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4 Opinion of the Court 20-14114
hearing, the district court calculated Rodriguez’s Sentencing
Guidelines range as 360 to 5,280 months’ imprisonment.
After considering the sentencing factors set forth at
18 U.S.C. § 3553(a),1 the district court imposed a sentence of 400
months followed by a term of supervised release. In imposing this
sentence, the district court expressly considered the nature and cir-
cumstances of the offense, including that Rodriguez sent controlled
substances into more than 40 percent of federal prisons. The court
noted, among other things, the problems that inmates who use
controlled substances create for BOP staff. The court also consid-
ered Rodriguez’s personal history and characteristics, including his
extensive criminal history, that he had been in prison for nearly all
of his adult life, and that shortly after being released from prison he
engaged in new criminal conduct. After pronouncing a sentence of
400 months, the district court noted that the sentence would have
1 Under § 3553(a), the district court is required to impose a sentence “suffi-
cient, but not greater than necessary, to comply with the purposes” of the stat-
ute. 18 U.S.C. § 3553(a). These purposes include the need to: reflect the seri-
ousness of the offense; promote respect for the law; provide just punishment;
deter criminal conduct; protect the public from the defendant’s future criminal
conduct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment.
Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
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20-14114 Opinion of the Court 5
been 480 months “but for the fact that [Rodriguez] had that seven
years overserved.” 2017 Criminal Case Doc. 633 at 31.2
After Rodriguez was sentenced, he requested that the BOP
apply the remainder of his banked time against the 400-month sen-
tence imposed in the 2017 criminal case. Although a BOP em-
ployee previously had told Rodriguez that he would receive credit
for the banked time, the agency ultimately determined that he
would not receive any credit. Rodriguez filed a 28 U.S.C. § 2241
petition in the Western District of Virginia challenging the agency’s
decision. The district court in that proceeding dismissed the peti-
tion after concluding that the BOP “correctly calculated Rodri-
guez’s sentence.”
Rodriguez v. Streeval (
Streeval I), No. 20-cv-197,
2021 WL 1893553, at *4. (W.D. Va. May 11, 2021). The district
court’s decision was affirmed on appeal.
Rodriguez v. Streeval
(Streeval II), No. 21-6807, 2021 WL 5072075 (4th Cir. Nov. 2, 2021)
(unpublished). The BOP currently projects that Rodriguez will
compete his custodial sentence on May 4, 2046.
In September 2019, several months after the district court
imposed the sentence in the 2017 criminal case, Rodriguez filed this
§ 2255 motion challenging the 37-month sentence imposed in the
revocation proceedings. The district court concluded that it lacked
jurisdiction to review the merits of the claim because Rodriguez
was not in custody on the 37-month sentence when he filed the §
2 “2017 Criminal Case Doc.” numbers refer to the district court’s docket en-
tries in the 2017 criminal case.
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6 Opinion of the Court 20-14114
2255 motion. The district court explained that Rodriguez’s revoca-
tion sentence “fully expired the date this Court imposed it . . . on
April 10, 2018.” Doc. 36 at 4.3 Therefore, the court concluded, Ro-
driguez was no longer in custody on that sentence when he filed
his motion more than a year later.
This is Rodriguez’s appeal.
II.
Whether a prisoner seeking relief from a sentence is “in cus-
tody” for purposes of 18 U.S.C. § 2255 is a jurisdictional question.
See Diaz v. Fla. Fourth Jud. Cir. ex rel. Duval Cnty., 683 F.3d 1261,
1263 (11th Cir. 2012). We review
de novo a district court’s denial
of a § 2255 motion for lack of jurisdiction.
Id.
III.
Section 2255 authorizes a federal district court to review a
motion filed by a “prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released
upon the ground that . . . the sentence was in excess of the maxi-
mum authorized by law.” 28 U.S.C. § 2255(a). Rodriguez argues
that he is entitled to relief under § 2255 because the 37-month sen-
tence imposed in the revocation proceedings exceeded the statu-
tory maximum sentence available, which was 24 months.
3 “Doc.” numbers refer to the district court’s docket entries in this case.
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20-14114 Opinion of the Court 7
Before addressing the merits of Rodriguez’s challenge to the
revocation sentence, the district court properly examined whether
it had jurisdiction to review his motion. A district court has juris-
diction to review a § 2255 motion when the prisoner was “in cus-
tody” on the sentence he challenges at the time his motion was
filed.
Id. § 2255(a);
see Spencer v. Kemna, 523 U.S. 1, 7 (1998) (ex-
plaining that the statutory “in custody” requirement is satisfied
when the prisoner “was incarcerated . . . at the time the petition
was filed”).4
After careful consideration, and with the benefit of oral ar-
gument, we conclude that Rodriguez was not in custody on the
revocation sentence when he filed his § 2255 motion. The record
reflects that the district court imposed the 37-month revocation
sentence on April 10, 2018. Because the court gave Rodriguez
credit for the banked time that he previously had overserved on the
sentence imposed in the 1994 criminal case, the revocation sen-
tence was fully discharged on the same day that it was imposed.
Rodriguez filed his § 2255 motion over a year later, in September
2019. The district court therefore correctly concluded that when he
filed the motion, he was not in custody on the sentence being chal-
lenged.
4 The habeas corpus statute codified at 28 U.S.C. § 2254(a) contains the same
“in custody” language. Because of the identical language, we rely on decisions
construing § 2254’s “in custody” requirement.
See Clements v. Florida, No.
21-12540, F.4th , 2023 WL 1860620, at *4 n.2 (11th Cir. Feb. 9, 2023).
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8 Opinion of the Court 20-14114
Rodriguez argues that, despite the immediate discharge of
his revocation sentence, based on the Supreme Court’s decision in
Garlotte v. Fordice, 515 U.S. 39 (1995), he remained in custody on
the revocation sentence at the time he filed the § 2255 motion. We
disagree.
In
Garlotte, the Supreme Court recognized that in narrow
circumstances a prisoner may challenge in a habeas proceeding an
already-expired sentence. Harvey Garlotte pled guilty in Missis-
sippi state court to a drug offense and two counts of murder.
Id. at
41. At sentencing, the state court imposed a three-year sentence for
the drug count and two concurrent life sentences on the murder
counts.
Id. at 41–42. The state court directed that the three-year
sentence be served first, followed by the concurrent life sentences.
Id. at 42. Later, Garlotte filed a federal habeas petition challenging
his drug conviction.
Id. By the time he filed the petition, he had
completed the sentence for the drug offense and was serving the
life sentences.
Id.
The Supreme Court considered whether Garlotte was in
custody on the drug offense when he filed the habeas petition chal-
lenging that offense.
Id. at 41. Although he had already completed
the three-year sentence imposed for the drug offense, the Court
held that he remained in custody on that offense.
Id. at 45–47. The
Court reasoned that because the challenge to his drug conviction,
if successful, would “advance the date of his eligibility for release
from [his] present incarceration,” the
consecutive sentences should
be viewed “in the aggregate, not as discrete segments.”
Id. at 47.
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20-14114 Opinion of the Court 9
Thus, it concluded, the defendant remained “in custody,” for ha-
beas purposes, on the first sentence even though the sentence tech-
nically had expired.
Id.
Rodriguez argues that under
Garlotte he remained “in cus-
tody” on the revocation sentence at the time that he filed the in-
stant § 2255 motion. He concedes that to satisfy the standard
Gar-
lotte established, he must show that obtaining relief on his § 2255
motion would advance the date of his eligibility for release from
the sentence imposed in the 2017 criminal case. Rodriguez main-
tains that he satisfied this standard because if he prevailed on his
challenge to the revocation sentence it “would accelerate his re-
lease from” the sentence imposed in the 2017 criminal case. Reply
Br. at 14 (relying on
Fox v. Kelso, 911 F.2d 563 (11th Cir. 1990)).
Rodriguez has offered two theories about how granting his
§ 2255 motion would advance the date of his release from the sen-
tence imposed in the 2017 criminal case. First, in the initial round
of briefing to this Court, he argued that if he prevailed on his § 2255
motion, the BOP would award him credit against the sentence im-
posed in the 2017 criminal case. He maintained that the BOP either
had credited or would credit the banked time that he had over-
served on the sentence imposed in the 1994 criminal case. He pos-
ited that if his revocation sentence were reduced by the 13 months
the district court unlawfully imposed in the revocation sentence,5
5 Thirty-seven months minus the statutory maximum of 24 months is 13
months.
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10 Opinion of the Court 20-14114
he would have 13 months of additional banked time that the BOP
would credit against the sentence imposed in the 2017 criminal
case. Later, in supplemental briefing and at oral argument, Rodri-
guez advanced a second theory: if he prevailed on this § 2255 mo-
tion, the district court, rather than the BOP, would subtract 13
months from the sentence imposed in the 2017 criminal case. We
address each argument in turn.
Rodriguez’s first theory implicates how the BOP’s calculated
his sentence in the 2017 criminal case. “A defendant convicted of a
federal crime has a right under 18 U.S.C. § 3585(b) to receive credit
for certain time spent in official detention before his sentence be-
gins.”
United States v. Wilson, 503 U.S. 329, 330 (1992). According
to § 3585(b):
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 sen-
tence was imposed; or
(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 im-
posed;
that has not been credited against another sentence.
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20-14114 Opinion of the Court 11
18 U.S.C. § 3585(b). The Attorney General, acting through the
BOP, possesses the authority to compute such sentence-credit
awards under the statute.
Wilson, 503 U.S. at 334–37.
Rodriguez initially argued that under § 3585(b), the BOP, in
calculating his sentence for the 2017 criminal case, was required to
award him credit for his banked time. But at oral argument Rodri-
guez acknowledged that, in calculating the sentence imposed in his
2017 criminal case, the BOP had not awarded him any credit for
banked time. And when he brought a § 2241 proceeding challeng-
ing the BOP’s decision, he was unsuccessful, both before the dis-
trict court and on appeal.
See Streeval I, 2021 WL 1893553, at *4
(concluding that the BOP had “correctly calculated Rodriguez’s
sentence” under § 3585(b) because Rodriguez was “not entitled to
have the remainder of his overserved time credited toward” the
sentence imposed in the 2017 criminal case),
aff’d Streeval II, 2021
WL 5072075, at *1. Given the BOP’s decision and Rodriguez’s un-
successful challenge to it, even if the instant § 2255 motion were
granted, resulting in an additional 13 months of banked time, there
would be no effect on the BOP’s calculation of Rodriguez’s release
date for the sentence imposed in the 2017 criminal case.
We now turn to Rodriguez’s second theory, that if he pre-
vailed on the instant § 2255 motion the district court would exer-
cise its discretion to shorten his sentence in the 2017 criminal case.
To support his argument, Rodriguez points to statements the dis-
trict court judge made at sentencing in the 2017 criminal case.
These statements showed that the judge considered the amount of
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12 Opinion of the Court 20-14114
banked time Rodriguez had accrued from the overserved sentence
in the 1994 criminal case and reduced the sentence it otherwise
would have imposed in the 2017 case by that amount of time. Ro-
driguez says that if he had accrued 13 more months of banked time,
his sentence in the 2017 criminal case would have been 387 months
instead of 400 months. Rodriguez thus predicts that if he prevailed
on this § 2255 motion, the district court would resentence him in
the 2017 criminal case to a shorter sentence.
Rodriguez’s position rests on the following assumptions: (1)
if he prevailed on the § 2255 motion, he would be entitled to a re-
sentencing in the 2017 criminal case, and (2) at resentencing, the
court would award him a 13-month reduction in his sentence. Even
if we assume that the district court would have the authority to
resentence Rodriguez on the sentence imposed in the 2017 crimi-
nal case, his assertion that the court would award a sentence reduc-
tion is based on pure speculation.
At a resentencing, the decision whether to award Rodriguez
a further reduction of 13 months based on his banked time would
rest entirely within the sentencing judge’s discretion.
See Concep-
cion v. United States, 142 S. Ct. 2389, 2399–2400 (2022) (“[T]he dis-
cretion federal judges hold at initial sentencings also characterizes
sentencing modification hearings.”). Indeed, Rodriguez effectively
conceded this at oral argument when he acknowledged that in sen-
tencing him in the 2017 criminal case, the district court judge relied
on her
discretion when she awarded him an 80-month reduction
based on the time he had previously overserved. Similarly, at a
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20-14114 Opinion of the Court 13
resentencing the judge would have discretion, but not be required,
to give Rodriguez credit for any additional banked time. The judge
could consider not only Rodriguez’s additional banked time but
also the record from the previous sentencing hearing as well as ev-
idence developed after the initial sentencing hearing, including ev-
idence of his “rehabilitation” or “disciplinary infractions” in prison.
Id. at 2401. Based on the record and the § 3553(a) factors, the sen-
tencing judge could decide to reduce Rodriguez’s sentence from
400 months to 387 months based on his additional 13 months of
banked time. Alternatively, the judge could decide that a 400-
month sentence remains reasonable and award no reduction. After
considering the district court’s broad discretion at sentencing, we
are not convinced by Rodriguez’s argument that if he prevailed in
this § 2255 motion, the district court would shorten his sentence
imposed in the 2017 criminal case.
As we noted above, Rodriguez concedes that to be entitled
to relief under
Garlotte he must show that granting his § 2255 mo-
tion would advance the date of his eligibility for release from the
sentence imposed in the 2017 criminal case. Because Rodriguez
failed to make this showing, we conclude that he was not in cus-
tody on the revocation sentence at the time he filed the instant §
2255 motion.6
6 Rodriguez argues that even if he cannot satisfy
Garlotte, the district court
had jurisdiction to review his § 2255 motion because an exception permits a
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14 Opinion of the Court 20-14114
IV.
For the above reasons, we affirm the district court’s order
denying Rodriguez’s § 2255 motion based on lack of jurisdiction.7
AFFIRMED.
district court to review a challenge to an expired sentence in a “situation[] in
which ‘no channel of review was actually available to a defendant with respect
to a prior conviction, due to no[] fault of his own.’” Appellant’s Br. at 20 (quot-
ing
Daniels v. United States, 532 U.S. 374, 383 (2001) (plurality opinion)). But
even on its own terms,
Daniels deals with challenges to sentences that have
been enhanced due to previously expired convictions, not to challenges to the
expired conviction itself.
See 532 U.S. at 376 (majority opinion). So the excep-
tion that a plurality of the Court would have recognized in
Daniels could not
apply to this case.
7 Rodriguez also argues on appeal that the district court judge erred by refus-
ing to recuse himself from this case. Even assuming Rodriguez is right, any
error was harmless because of our conclusion, under a
de novo standard of
review, that the district court lacked jurisdiction.
See Parker v. Connors Steel
Co., 855 F.2d 1510, 1527–28 (11th Cir. 1988).
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