MARTINEZ v. WARDEN FCI LORETTO

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NORBERTO MARTINEZ, 	:
Petitioner 	:
v. 	: Case No. 3:25-cv-159-KAP
MICHAEL UNDERWOOD, WARDEN, 	:
F.C.I. LORETTO, et al., 	:
Respondents 	:
Report and Recommendation
Recommendation
Petitioner Martinez filed a petition for a writ of habeas corpus pursuant to 28
U.S.C.§ 2241 asserting that the Bureau of Prisons is wrongly computing his sentence. ECF
no. 1. The respondent has replied. ECF no. 10. This is filed as a recommendation because
not all parties have returned consents. The petition should be denied.
Report
Petitioner Martinez is at F.C.I. Loretto as a result of a federal sentence of
imprisonment imposed in the Eastern District of New York. On May 3, 2006, the
Honorable Nicholas Garaufis sentenced petitioner to a term of life imprisonment for
controlled substances offenses in violation of 21 U.S.C.§ 841(a)(1) and (b)(1)(A) and 21
U.S.C.§§ 960(b)(1)(A) and 963, with a consecutive term of 84 months for use of a firearm
in relation to a drug trafficking crime in violation of 18 U.S.C.§ 924(c). United States v.
Martinez, 	Case 	No. 	1:03-cr-1049-NGG 	(E.D.N.Y.). 	Judge 	Garaufis 	subsequently
resentenced Martinez August 29, 2024 to an aggregate term of 360 months, 276 months
on the drug offenses and a consecutive 84 months on the firearms offense, with a five year
term of supervised release to follow. Response, Exhibit 3.
Petitioner complains that the BOP is not applying Earned Time Credits (ETCs) that
he has earned under the First Step Act (FSA), Pub. L. No. 115-391, 132 Stat. 5208 (2018).
The FSA amended the calculation of federal sentences by offering incentives to inmates
for completion of programs considered to be recidivism-reducing. When earned, ETCs
can be applied toward prerelease placement in a halfway house, a residential reentry
center, or home confinement. ETC is capped at a maximum of 365 days, 18 U.S.C.§
3624(g)(3), and works by allowing for earlier transfer into prerelease custody or
supervised release. See 18 U.S.C.§ 3632(d)(4)(C) (“Time credits earned under this
paragraph . . . shall be applied toward time in prerelease custody or supervised release.
The [BOP] shall transfer eligible prisoners . . . into prerelease custody or supervised
release.”)
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Not all inmates who earn ETCs by taking recidivism-reducing programs are eligible
to have ETCs applied to their sentences. In general, to be eligible to have ETCs applied,
an inmate must adhere to certain conduct requirements. See 18 U.S.C. § 3624(g)(1)(B);
see also 28 C.F.R.§ 523.44 (an inmate can have ETCs applied if the inmate has
“[m]aintained a minimum or low recidivism risk through his ... last two risk and needs
assessments”). Inmates who are nationals of other countries and who have a final order
of removal are not eligible to have ETCs applied. 18 U.S.C.§ 3632 (d)(4)(E). Inmates with
convictions for certain offenses deemed incompatible with recidivism reduction are
ineligible. Those offenses are listed by reference to section, subsection, or in some cases
paragraph within subsection, at 18 U.S.C. § 3632(d)(4)(D)(“A prisoner is ineligible to
receive [ETC] ... if the prisoner is serving a sentence for a conviction under any of the
following provisions of law[.]” Subsection 3632(d)(4)(D)(xxii) makes ineligible those
serving a sentence for conviction under 18 U.S.C.§ 924(c), “relating to unlawful
possession or use of a firearm during and in relation to any crime of violence or drug
trafficking crime.” That covers Martinez’ firearms offense.
When the BOP receives a federal inmate who has multiple counts of sentence
within the same indictment or has multiple sentences imposed at different times, it
aggregates the terms of imprisonment imposed. If there is a disqualifying offense at one
or more of the multiple counts of the same indictment, the BOP considers that to make
the aggregate sentence one that is disqualified for application of ETCs. Similarly, the BOP
considers one of several sentences imposed at different times that is a disqualifying
sentence to make the aggregate sentence a disqualifying sentence.
The First Step Act did not expressly address the application of ETC in these
common scenarios faced by the BOP. The background against which the First Step Act
was enacted required the BOP to treat “[m]ultiple terms of imprisonment ordered to run
consecutively or concurrently shall be treated for administrative purposes as a single,
aggregate term of imprisonment.” 18 U.S.C.§ 3584(c). The BOP considers this to be a
direction to apply what I have called its “one bad apple” interpretation of the FSA.
The Court of Appeals has held that the BOP’s aggregation policy is permissible in
cases from this court and elsewhere that present claims indistinguishable from Martinez’.
In Teed v. Warden Allenwood FCI Low, No. 23-1181, 2023 WL 4556726, at *2 (3d Cir.
July 17, 2023), cert. denied, No. 23-6197, 144 S. Ct. 873, 874, 218 L. Ed. 2d 59 (February
20, 2024), Teed had a disqualifying offense for which the court imposed an 18-month
sentence consecutive to a 120-month sentence on an offense that was not disqualifying.
The panel, affirming a decision from the Middle District of Pennsylvania that Teed was
completely disqualified from having ETCs applied under the FSA, stated briefly:
Calculation of an inmate's term of imprisonment is widely recognized as an
“administrative purpose” well within the BOP's responsibilities as charged by
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Congress. See generally United States v. Martin, 974 F. 3d 124, 136 (2d Cir. 2020)
(citing United States v. Wilson, 503 U.S. 329, 333-35 (1992) (“After a district court
sentences a federal offender, the Attorney General, through the BOP, has the
responsibility for administering the sentence.”) (emphasis omitted)). Accordingly,
here, we view BOP's aggregation of Teed's sentence and FSA ineligibility designation
to be proper.
Teed v. Warden Allenwood FCI Low, supra, 2023 WL 4556726 at *2.
In a case from this court decided this year, Colotti v. Peters, No. 25-1191, 2025 WL
1321386 at *1–2 (3d Cir. May 7, 2025), 	affirming 2025 WL 216401 (W.D. Pa. Jan. 16,
2025), adopting report and recommendation at Colotti v. Underwood, Case No. 3:24-
CV-127-NBF-KAP, 2024 WL 5336645 (W.D. Pa. June 24, 2024), the Court of Appeals set
out the precise claim made by Martinez, and resolved it adversely to him:
In June 2024, Colotti, who is incarcerated in Pennsylvania, filed a § 2241
petition seeking the application of earned time credits pursuant to the First Step Act
(“FSA”). See 18 U.S.C. § 3624. He argued that his RICO conviction did not qualify
as a crime of violence for purposes of his § 924(c) conviction, such that the FSA's
ineligibility provisions should not apply to him. See 18 U.S.C. § 3632(d)(4)(D)(xxii).
He further asserted that the BOP should not aggregate his sentence as a single FSA-
ineligible term, and that he should be permitted to earn and apply good time credits
to the 240 months not attributable to his § 924(c) conviction.
The District Court sua sponte denied relief, concluding that Colotti is
statutorily ineligible to earn time credits due to his § 924(c) conviction, and that the
BOP properly applied that bar to his aggregate sentence. Colotti appeals.
We review de novo the District Court's denial of Colotti's § 2241 petition. We
will affirm on the reasoning of the District Court. See Cradle v. U.S. ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002).
The FSA provides, in relevant part, that “[a] prisoner ... serving a sentence
for a conviction under ... Section 924(c), relating to unlawful possession or use of a
firearm during and in relation to any crime of violence,” is “ineligible to receive time
credits.” 18 U.S.C. § 3632(d)(4)(D)(xxii). Colotti is serving a sentence for a
conviction under § 924(c), and the Second Circuit has specifically rejected his
assertion that his RICO conviction is not a predicate crime of violence for purposes
of § 924(c). See Colotti, 71 F.4th at 116. Therefore, under the plain text of the Act,
Colotti is ineligible to earn good time credits. Further, as the District Court
concluded, the BOP properly aggregated Colotti's convictions as a single sentence
for purposes of FSA time credits. See 18 U.S.C. § 3584(c) (“Multiple terms of
imprisonment ordered to run consecutively or concurrently shall be treated for
administrative purposes as a single, aggregate term of imprisonment.”); see also
Giovinco v. Pullen, 118 F.4th 527, 531 (2d Cir. 2024), petition for cert. filed, No. 24-
6827 (U.S. Mar. 21, 2025) (citing with approval Chambers v. Warden Lewisburg
USP, 852 F. App'x 648, 650 (3d Cir. 2021), and concluding that “the aggregation
provision [of § 3584(c)] applies to the BOP's administration of the FSA time credit
program”).
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Accordingly, we will affirm the judgment of the District Court.
There has been no relevant change in the law since Colotti v. Peters in May 2025, and the
Supreme Court declined review of the Second Circuit authority cited in Colotti v. Peters.
See Giovinco v. Flowers, No. 24-6827, 145 S. Ct. 1947, 221 L. Ed. 2d 678 (April 21, 2025).
A sentence for violating 21 U.S.C.§ 841 would not disqualify an inmate from having
ETCs applied unless he was sentenced as an organizer, leader, manager, or supervisor. 18
U.S.C. § 3632(d)(4)(D) (lxv). The respondent does not argue that Martinez’ role in 	his
drug offenses disqualify him under the First Step Act. But Martinez’ consecutive term of
84 months for use of a firearm in relation to a drug trafficking crime in violation of 18
U.S.C.§ 924(c) does disqualify him under the First Step Act, and does so entirely.
Following precedent from the Court of Appeals, the petition should be denied.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written
objections to my recommendation. In the absence of timely and specific objections, any
appeal would be severely hampered or entirely defaulted. 	See EEOC v. City of Long
Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no
timely and specific objections are filed as limited to review for plain error).
DATE: December 11, 2025
Keith A. Pesto,
United States Magistrate Judge
Notice by ECF to counsel and by U.S. Mail to:
Norberto Martinez, Reg. No. 45757-053
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630
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