UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOSE ISMAEL DURAN, :

:

Petitioner : No. 4:CV-05-2464

:

vs. : (Petition Filed 11/28/05)

:

KAREN HOGSTEN, WARDEN, : (Judge Muir)

:

Respondent :

ORDER

June 2, 2006

Jose Ismael Duran, an inmate confined in the Allenwood Low

Security Correctional Institution, White Deer, Pennsylvania,

(“LSCI-Allenwood”), filed this pro se petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241. 

Duran challenges the Bureau of Prisons’ (“BOP”) calculation

of his federal sentence. He asserts that the BOP has wrongfully

commenced his current sentence, and that the date his instant

sentence began to run is a date before the date the sentence was

imposed. 

Because the BOP has computed the petitioner's sentence in

accordance with policy and governing law, the petition will be

denied.

Background.

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 1 of 10
-2-

On October 21, 2003, Duran pled guilty and was sentenced,

in two separate cases, in the United States District Court for

the Southern District of New York. In Criminal Case No. 83-CR620, Duran pled guilty to four counts of narcotic charges for

offenses which concluded in May and September, 1983. (Doc. No.

6, Ex. 2, p. 3, Judgment). Duran was “sentenced to custody of

18 months, which shall run consecutively to the 6 month term of

imprisonment imposed in 03 CR. 913, followed by a 3 year term of

special parole, which shall run concurrently with the 3 year

term of supervised release imposed in 03 CR. 913.” Id. This

sentence was completed on August 17, 2004. (Doc. No. 1, Ex. A).

In Criminal Case No. 03-CR-913, Duran pled guilty to a

charge of failure to appear. (Doc. No. 6, Ex. 2, p. 5,6

Judgment). He was sentenced to “six months, to run

consecutively to the term of prison in 83 CR. 620 (SHS).” Id.

This sentence commenced on August 17, 2004. 

On September 8, 2004, in Criminal Case No. 04-0200, Duran

pled guilty in the United States District Court for the District

of New Jersey, to one count of conspiracy to distribute heroin.

(Doc. 6, Ex. 2, p. 7, Judgment). This offense conduct occurred

in March and April, 2003. Id. Duran was sentenced to

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 2 of 10
-3-

“imprison[ment] for a term of 40 Months, to run concurrent to

but not limited to the sentence imposed in the SDNY (CR. 83-620

and 03-913).” Id. 

The BOP computed these sentences as follows. Duran's 18-

month term imposed in Criminal Case No. 83-CR-620, commenced on

October 21, 2003, the date on which Duran was sentenced. He

received 138 days prior custody credit and the sentence was

completed on August 17, 2004. Because this sentence was imposed

for conduct which occurred prior to November 1, 1987, the date

on which the Sentencing Reform Act was enacted, the sentence had

to be computed independently of the other sentences because it

was classified as an “Old Law” sentence, and “Old Law” and “New

Law” sentences cannot be aggregated. (Doc. 6, Ex. 1,

Declaration of Karen Gemberling, Assistant Inmate Systems

Manager at LSCI-Allenwood at ¶ 7 and Ex. 2, Program Statement

5880.28, Sentence Computation Manual (CCCA of 1984) July 19,

1999), pp. 1-3, 1-20). 

Duran's six month consecutive sentence imposed in Criminal

Case No. 03-CR-913 commenced on August 17, 2004, the day the 18-

month sentence was completed. The 40-month concurrent sentence

imposed in Criminal Case No. 04-0200 was aggregated with the

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 3 of 10
1Section 3585(a) reads as follows:

A sentence to a term of imprisonment commences on the

date the defendant is received in custody awaiting

transportation to, or arrives voluntarily to commence

service of sentence at, the official detention

facility at which the sentence is to be served.

-4-

six-month term for computation because both were “New Law”

sentences and aggregation was possible. (Doc. No. 6, Ex. 1 at

¶ 8 and Ex. 2, Program Statement 5880.3, Sentence Computation

Manual (“Old Law-Pre-CCCA-1984)(July 16, 1993), Ch. VII, pp. 29-

30). 

Pursuant to 18 U.S.C. § 3885(a)1, Duran's 40-month sentence

commenced on September 8, 2004, the day it was imposed. Duran's

total sentence was then aggregated pursuant to P.S. 5880.30,

which sets forth the formula for aggregating concurrent

sentences when an overlap is involved. Pursuant to P.S.

5880.30: 

The total length of the aggregate will be determined by

adding the length of the first sentence. . . to the

overlap of the concurrent sentence. . . .The overlap is

determined by finding the difference (exact number of

days), between the [expiration full term dates of both

sentences.] The overlap is then added to the length of

the first sentence. . . for a total sentence for the

aggregate. 

Id. As a result, Duran's term was of incarceration was computed

by adding his 40-month term, or three years, fourth months, with

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 4 of 10
-5-

the 22 day overlap between the commencement of the two remaining

sentences, specifically, the days between August 17 2004, the

commencement of his 6-month sentence and September 8 2004, the

date his 40-month term commenced. (Doc. No. 6, Ex. 1 at ¶ 9).

Duran's projected release date was then calculated by taking the

commencement date of his first sentence, August 17, 2004, and

adding the aggregate term of three years, four months and 22

days, for a full term date of January 7, 2008. Id. at ¶ 11.

From this full term date, prior custody credit (0 days) pursuant

to 18 U.S.C. § 3585(b), and projected good conduct time earned

(159 days) are subtracted. This resulted in Duran's projected

release date of August 1, 2007. Id. 

On November 28, 2005, Duran filed the instant petition for

writ of habeas corpus. He argues that pursuant to Ruggiano vs.

Reish, 307 F.3d 121, 126 (3d Cir. 2002), he is entitled to have

his current 40-month New Jersey sentence run fully or

retroactively concurrent with the date his New York federal

sentences commenced, specifically, October 21, 2003. (Doc. No.

1, petition). 

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 5 of 10
-6-

Discussion

In Ruggiano vs. Reish, 307 F.3d 121 (3d Cir.2002), the

United States Court of Appeals for the Third Circuit held that

in imposing sentence, a district court may grant an adjustment

for time served on a pre-existing sentence pursuant to United

States Sentencing Guidelines § 5G1.3(c). However, even though

the sentencing judge has this authority under § 5G1.3(c), it

still must be determined whether the sentencing judge in this

case in fact exercised this option to grant an adjustment under

§ 5G1.3(c) by making the federal sentence concurrent with the

state or federal sentence for the full period of the preexisting sentence (retroactively concurrent) or only concurrent

for the remainder of the pre-existing sentence beginning with

the date of imposition of the federal sentence. Under Ruggiano,

either of these results is permitted.

In Ruggiano, the sentencing judge stated at sentencing “that

he thought it appropriate ‘to go ahead and recommend that

[Ruggiano's state sentence] be served concurrently and that he

receive credit for the amount of time that he served there.” ’

Ruggiano at 124. “Then, in his written judgment, he [ the

sentencing judge] recited that Ruggiano's sentence was to ‘run

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 6 of 10
-7-

concurrent with State sentence. Defendant to receive credit for

time served.” ’ Id. The Court in Ruggiano found that this

language conveyed an intent of the sentencing judge to grant an

adjustment by making the federal sentence retroactively

concurrent for the entire period of the state sentence pursuant

to § 5G1.3(c).

In the case sub judice, the New Jersey District Court

sentencing judge issued an order subsequent to the date of

imposition of Duran's New York federal sentences, which included

the following language: to run concurrent but not limited to the

sentence imposed in the SDNY (CR. 83-620 and 03-913). 

The issue presented to this Court is whether the New Jersey

sentencing judge evidenced an intent to make Duran's New Jersey

federal sentence retroactively concurrent with Duran's first

federal sentences by use of the language “to run concurrent but

not limited to the sentence imposed in the SDNY (CR. 83-620 and

03-913).” This Court finds that such language does not convey

an intent of the sentencing court that the federal sentence was

to be retroactively concurrent, but rather conveys an intent

that the federal sentences were to run concurrently from the

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 7 of 10
-8-

date that the New Jersey federal sentence commenced, namely the

date of the federal sentencing.

In comparing the language of the sentencing judge in

Ruggiano with the language of the sentencing judge in the case

before this Court, this case is clearly distinguishable from

Ruggiano. The sentencing judge in this case merely said that

the federal sentence “shall run concurrent but not limited to”

Duran's other federal sentences. The statement “shall run

concurrent”, with no reference to past credit, clearly conveys

an intent that the concurrent status of the federal sentence was

to begin on the date that such federal sentence commenced. In

Ruggiano, the sentencing judge stated that the federal and state

sentences were to run concurrently and then added the language

“Defendant to receive credit for time served” and “he shall

receive credit for the amount of time he served there [referring

to state sentence].” This additional language conveys an intent

to grant an adjustment under § 5G1.3(c) by making the sentence

retroactively concurrent to cover the entire period of the state

sentence, in that this language which was utilized in addition

to the term “concurrent” was unnecessary and superfluous other

than to convey such an intent. However, in contrast, in the case

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 8 of 10
-9-

before this Court, it is determined that the sentencing judge

exercised his discretion under 18 U.S.C. § 3584(a) to impose a

concurrent sentence but did not evidence any intent to adjust

Duran's sentence pursuant to U.S.S.G. § 5G1.3(c) by making the

concurrent sentence retroactive.

The Court concludes that use of the term “concurrent” by the

sentencing judge in this case means concurrent commencing on the

date the federal sentence is imposed and does not mean

retroactively concurrent to the first date in custody on another

federal sentence. Generally, use of “concurrent” has that

meaning, provided there is no additional language which conveys

a contrary intent. If a sentencing judge intends to grant an

adjustment by imposing a retroactive concurrent sentence, then

he or she will add additional language such as was done in

Ruggiano. Therefore, the Court determines that the sentencing

judge in the instant case intended that Duran's New Jersey

federal sentence run concurrently with Duran's other federal

sentences beginning on the effective date of the federal

sentence, namely September 8, 2004, which was the date on which

the New Jersey sentence was imposed. The court finds no evidence

that the sentencing judge intended to grant any adjustment for

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 9 of 10
time served under petitioner's prior federal sentences. The

Court concurs with the computation of credit by the Bureau of

Prisons. Thus, the petition for writ of habeas corpus will be

denied.

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus, (Doc.

No. 1) is DENIED.

2. The Clerk of Court is directed to CLOSE this case.

 s/Malcolm Muir 

MUIR

United States District Judge

Case 4:05-cv-02464-MM-DB Document 9 Filed 06/02/06 Page 10 of 10