NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BENJAMIN APONTE-CRUZ, :

: Civil Action No. 11-1531 (RBK)

Petitioner, :

:

v. : OPINION

:

DONNA ZICKEFOOSE, :

:

Respondent. :

APPEARANCES:

Petitioner pro se

Benjamin Aponte-Cruz

FCI Manchester

Manchester, KY 40962-4000

Counsel for Respondent

Irene E. Dowdy

Assistant United States Attorney

P.O. Box 2098

Camden, NJ 08101

KUGLER, District Judge

Petitioner Benjamin Aponte-Cruz, a prisoner previously

confined at the Federal Correctional Institution at Fort Dix, New

Jersey, has submitted a petition for a writ of habeas corpus 1

 After this Petition was filed, Petitioner was transferred 1

to the Federal Correctional Institution at Manchester, Kentucky.

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pursuant to 28 U.S.C. § 2241. The sole respondent is Warden 2

Donna Zickefoose.

Because it appears from the parties’ submissions that

Petitioner is not entitled to relief, the Petition will be

denied.

I. BACKGROUND

On March 25, 1999, Petitioner was arrested by local

authorities in the Commonwealth of Puerto Rico on weapons

charges. On April 27, 2000, the Superior Court, Carolina, Puerto

Rico, sentenced Petitioner to a total term of five years’

imprisonment pursuant to his conviction on four violations of

weapons laws, including carrying a loaded firearm without a

license. Records of the Puerto Rico Department of Corrections

reflect that Petitioner entered its custody on June 1, 2000.3

 Section 2241 provides in relevant part: 2

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

 To date, Petitioner has not provided any evidence to the 3

Court that he remained in the custody of local authorities

between his arrest on March 25, 1999, and his entry into the

Puerto Rico Department of Corrections custody on June 1, 2000. 

Indeed, Petitioner does not even identify the correctional

facility in which he was purportedly confined. In her Answer,

Respondent asserts that the Bureau of Prisons has contacted local

Puerto Rico authorities and reviewed records available on a local

2

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On November 6, 2000, Petitioner and several co-defendants

were indicted in the United States District Court for the

District of Puerto Rico on drug and weapons charges. See United

States v. Aponte-Cruz, Criminal No. 00-0861 (D.P.R.). 

Superceding indictments were issued on January 31, 2001, and June

20, 2001. Count One of the second superceding indictment charged

Petitioner and others with Drug Trafficking Conspiracy, in

violation of 21 U.S.C. § 846. Count Two charged Petitioner and 4

others with conspiracy to possess, carry, and use firearms during

and in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(o). Count Three charged Petitioner and others with

possessing, carrying, and using firearms during and in relation

to a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1).5

secure website, and to date have located only documentation

reflecting that Petitioner entered local custody of the Puerto

Rico Department of Corrections on June 1, 2000. No earlier

custody records have been located. Petitioner did not file a

reply presenting any contrary evidence of earlier custody with

the local Puerto Rico authorities.

 Petitioner was alleged to have committed overt acts in 4

furtherance of this conspiracy occurring on or about March 25,

1999, (the date of his arrest by local Puerto Rico authorities),

and May 4, 1999, and June 4, 1999 (dates after his arrest by

local Puerto Rico authorities and before his conviction on the

local Puerto Rico charges). Those overt acts included the

possession of certain firearms (on all three dates) and

participation in a murder (on May 4, 1999).

 Count Three alleged an offense date of May 4, 1999, again 5

a date between Petitioner’s arrest and conviction on local Puerto

Rico charges.

3

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On July 11, 2002, a plea agreement was filed and a change of

plea hearing was conducted by a United States Magistrate Judge

who recommended that Petitioner’s plea of guilty to Counts One

and Three be accepted. On August 15, 2002, the District Court

accepted Petitioner’s plea of guilty to Counts One and Three. 

The Pre-Sentence Investigation Report was filed on November 6,

2002.

On November 13, 2002, Petitioner appeared for sentencing. 

At that time, Petitioner’s counsel advised the Court that

Petitioner had not been able to “get a specific basis” for the

150 kilogram quantity of cocaine allegedly involved in the

conspiracy. The District Court ordered Petitioner’s counsel to

file any desired motion regarding the amount of drugs, then in

dispute, as well as the consequences that might have for

Petitioner’s plea and sentence. (Answer, Decl. of Counsel, Ex.

4, Tr. of Sentencing Hearing at 4-8 (Nov. 13, 2002)).

On November 25, 2002, Petitioner’s counsel filed an

“informative motion” regarding the amount of drugs and the

consequences on the plea and sentence. On December 10, 2002, the

District Court denied that motion.

Also on December 10, 2002, Petitioner appeared again for

sentencing. In response to a question from the Court, both 6

 Between February 7, 2001, and April 16, 2003, Petitioner 6

was in the “borrowed” custody of federal authorities pursuant to

a writ of habeas corpus ad prosequendum.

4

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parties confirmed that they had received the Court’s order

denying the “informative motion.” Petitioner’s counsel confirmed

that he was satisfied with the Pre-Sentence Investigation Report,

other than the matter raised in the “informative motion”

regarding the amount of drugs. Similarly, Petitioner personally

confirmed that he understood his counsel’s explanation of the

Pre-Sentence Investigation Report and that he was satisfied with

the PSI. Petitioner and his counsel advised the Court that they

know of no reason why sentencing should be postponed. (Answer,

Decl. of Counsel, Ex. 5, Tr. of Sentencing Hearing (Dec. 10,

2002).) Thereafter, the Court pronounced sentence as follows:

THE COURT: Mr. Aponte, this is the sentence of Court. 

On July 11, 2002, defendant Benjamin Aponte Cruz, known

also as Benji, pled guilty to Count 1 and 3 of a six

count second superseding indictment in Criminal Case

No. 00-861, charging him with violation of Title 21,

U.S. Code, Section 841(a)(1), Title 18, U.S. Code,

Section 924(c)(1)(A)(1).

Count 3 is precluded from guideline application as

the statute mandates a fixed consecutive imprisonment

term of 5 years.

Based on the provision of Guideline Section

2D1.1(c), a base offense level of 38 has been

determined as to offense of conviction in Count 1

involved at least 150 kilograms of cocaine. Defendant

has timely accepted responsibility for his involvement

in the offense conduct, therefore a three level

decrease is warranted under Guideline Section 3E1.1(a)

and (b). There are no other applicable guideline

adjustments.

Based on a total offense of [38] and a Criminal

History Category of II, the guideline imprisonment

range in this particular case is from 188 to 235

months, with a fine range of 20,000 to 4 million, plus

5

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a supervised release term of at least five years as to

Count 1, and at least two but not more than three years

as to Count 3.

The Court in imposing sentence has considered the

defendant’s personal background, the nature of the

offenses committed, and the plea agreement between the

parties. The Court finds that the terms stipulated by

the parties is sufficient to address sentencing

objectives of just punish[ment] and deterrence.

Accordingly, it is the judgment of the Court the

defendant is hereby committed to the custody of the

Bureau of Prisons to be imprisoned for a term of 188

months as to Count 1, and 60 months as to Count 3 to be

served consecutively to the sentence imposed in Count

1, for a total of 248 months of imprisonment.

This term of imprisonment is to be served

concurrently with the sentence imposed in April 27,

2000, at the Court of First Instance, Superior Court at

Carolina, Puerto Rico.

(Answer, Decl. of Counsel, Ex. 5, Tr. of Sentencing Hearing at

4-6 (Dec. 10, 2002).) The Court dismissed Count Two; Petitioner

also was advised of his right to appeal the sentence within ten

days; and counsel for Petitioner advised the Court that there

were no remaining matters to be addressed. The Judgment entered

thereafter provides:

The defendant is hereby committed to the custody of the

United States Bureau of Prisons to be imprisoned for a

total term of 188 MONTHS AS TO [COUNT] ONE AND 60

MONTHS AS TO COUNT THREE (3) TO BE SERVED CONSECUTIVELY

TO THE SENTENCE IMPOSE IN COUNT ONE FOR A TOTAL OF 248

MONTHS. THIS TERM OF IMPRISONMENT TO BE SERVED

CONCURRENTLY WITH THE SENTENCE IMPOSED ON APRIL 27,

2000 AT THE COURT OF FIRST INSTANCE SUPERIOR COURT,

CAROLINA, PUERTO RICO.

(Answer, Decl. of Kimmela O. Boyd, Att. 3.) 

6

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On April 16, 2003, Petitioner was returned to state

authorities where he satisfied his five-year state sentence on

September 2, 2004. Petitioner was then transferred to federal

authorities for service of his federal sentence.7

Because the U.S. District Court had ordered that

Petitioner’s federal sentence was to run concurrently with the

sentence previously imposed by the Commonwealth of Puerto Rico on

April 27, 2000, the Bureau of Prisons nunc pro tunc designated

the Puerto Rico Department of Corrections as a place for serving

Petitioner’s federal sentence. Accordingly, the BOP computed 8

Petitioner’s federal sentence as commencing on December 10, 2002,

the date the federal sentence was imposed, and granted Petitioner

credit against his federal sentence for every day since December

10, 2002. The BOP calculates that Petitioner’s projected release

date, assuming accrual of all good conduct time, is December 10,

2020.

 From July 26, 2006, to March 20, 2007, Petitioner was 7

temporarily transferred to Puerto Rico on a state writ. There is

no dispute with respect to the crediting of that time against

Petitioner’s federal sentence.

 See Barden v. Keohane, 921 F.2d 476(3d Cir. 1991) (the 8

Bureau of Prisons can, in its discretion, designate a state

prison as a place of federal confinement nunc pro tunc). Where a

prisoner is already in state custody when a federal sentence is

imposed to run concurrently, this has the beneficial effect for

the prisoner of achieving concurrency from the date that the

federal sentence is imposed, instead of delaying concurrency

until the prisoner satisfies his state sentence and is released

to the U.S. Bureau of Prisons.

7

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Here, Petitioner asserts that he is entitled to Willis9

credit against his federal sentence for the period from his

arrest on local charges to the date of sentencing on his local

charges, March 25, 1999, to April 27, 2000. Petitioner also

asserts that he is entitled to credit from the date of his local

sentencing to the date of his federal sentencing, from April 27,

2000, to December 10, 2002, on the ground that the federal

sentencing court intended to make his federal sentence

retroactively concurrent to the beginning of the state sentence

by making an adjustment pursuant to United States Sentencing

Guideline 5G1.3(b). Respondent has answered that Petitioner is

not entitled to either of these credits. Petitioner did not

reply. This matter is now ready for decision. 10

II. ANALYSIS

A. BOP Sentence Calculation Regulations

The Attorney General is responsible for computing federal

sentences for all offenses committed on or after November 1,

1987, United States v. Wilson, 503 U.S. 329 (1992) and 18 U.S.C.

§ 3585, and the Attorney General has delegated that authority to

the Director of the Bureau of Prisons, 28 C.F.R. § 0.96 (1992).

 See Willis v. United States, 438 F.2d 923 (5th Cir. 1971). 9

 Petitioner has filed a Motion [15] for judgment on the 10

pleadings.

8

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Computation of a federal sentence is governed by 18 U.S.C.

§ 3585, and is comprised of a two-step determination of, first,

the date on which the federal sentence commences and, second, the

extent to which credit is awardable for time spent in custody

prior to commencement of the sentence.

(a) Commencement of sentence.--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.

(b) Credit for prior custody.--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

sentence 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 imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(a), (b).

B. “Willis” Credits

Petitioner asserts that he is entitled to “Willis” credits

from the date of his local arrest, March 25, 1999, to the date of

his local sentencing, April 27, 2000.

Pursuant to Willis v. United States, 438 F.2d 923 (5th Cir.

1971), as written into the relevant BOP Program Statement, where

a federal sentence is imposed to run concurrently to a state

9

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sentence, and the federal sentence is to run longer than the

state sentence (not counting any credits):

Prior custody credits shall be given for any time spent

in non-federal presentence custody that begins on or

after the date of the federal offense up to the date

that he first sentence begins to run, federal or

non-federal.

P.S. 5880.28(2)(c) (emphasis added). Here, however, Petitioner

has not established that he actually was in state custody during

the period between March 25, 1999 and April 27, 2000. To the

contrary, records of the Puerto Rican authorities reflect that

Petitioner did not enter state custody until June 1, 2000. 

Moreover, Petitioner pleaded guilty to federal offenses that put

him on the street on May 4, 1999, and June 4, 1999, dates after

his local Puerto Rico arrest. Accordingly, Petitioner has failed

to establish his right to “Willis” credits. This claim will be 11

denied.

C. U.S.S.G. 5G1.3(b)

Petitioner also asserts that he is entitled to credit for

the period between his local sentencing on April 27, 2000, and

the date of his federal sentencing, on December 10, 2002, on 12

the ground that the federal sentencing court intended to make the

 The Court notes that Respondent has indicated that the 11

government is continuing to investigate this matter. If records

are located reflecting that Petitioner was confined prior to the

date his local sentence was imposed, he may file a new petition.

 Again, the Court notes that there is no evidence that 12

Petitioner was confined between April 27, 2000, and June 1, 2000.

10

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federal sentence retroactively concurrent to the state sentence

by making an adjustment pursuant to United States Sentencing

Guideline 5G1.3(b). Petitioner cites to Ruggiano v. Reish, 307 13

F.3d 121 (3d Cir. 2002), a 5G1.3(c) case, in support of this

argument.

 Section 5G1.3(b) provides that: 13

If ... a term of imprisonment resulted from another

offense that is relevant conduct to the instant offense

... and that was the basis for an increase in the

offense level for the instant offense under Chapter Two

(Offense Conduct) or Chapter Three (Adjustments), the

sentence for the instant offense shall be imposed as

follows:

(1) the court shall adjust the sentence for any

period of imprisonment already served on the

undischarged term of imprisonment if the court

determines that such period of imprisonment will

not be credited to the federal sentence by the

Bureau of Prisons; and

(2) the sentence for the instant offense shall be

imposed to run concurrently to the remainder of

the undischarged term of imprisonment.

To the extent Petitioner contends that he was entitled to a

Section 5G1.3(b) adjustment, he should have appealed the

sentence. Based upon Petitioner’s citation to Ruggiano v. Reish,

307 F.3d 121 (3d Cir. 2002), this Court construes the Petition as

asserting a claim that the federal sentencing court intended an

adjustment pursuant to 5G1.3(c).

In any event, it does not appear that Petitioner was

entitled to a 5G1.3(b) adjustment, as the federal offenses

include a murder and other offenses that took place after the

date of Petitioner’s arrest on local charges. In addition, there

is no evidence that the state offense led to an increase in the

federal offense level, which is directly tied to the quantity of

cocaine involved in the federal offenses.

11

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The Court of Appeals held, in Ruggiano v. Reish, that a

federal sentencing court has authority under 18 U.S.C. § 3584 and

USSG 5G1.3(c) to order a federal sentence to be fully and 14

retroactively concurrent to a state sentence that the defendant

was already serving. The imposition of a retroactively

concurrent sentence under § 5G1.3(c) is more properly termed an

“adjustment,” rather than a credit or downward departure. Id. at

133.15

Notably, in Ruggiano, the sentencing judge stated “that he

thought it appropriate to go ahead and recommend that ‘Ruggiano’s

sentence’ be served concurrently and that he receive credit for

the amount of time that he served there.” 307 F.3d at 124. 

“Then, in his written judgment, [the sentencing judge] recited

that Ruggiano’s sentence was to ‘run concurrent with State

sentence. Defendant to receive credit for time served.’” Id. 

The Third Circuit found that this language conveyed an intent of

 Section 5G1.3(c) provides that: 14

(Policy Statement) In any other case involving an

undischarged term of imprisonment, the sentence

for the instance offense may be imposed to run

concurrently, partially concurrently, or

consecutively to the prior undischarged term of

imprisonment to achieve a reasonable adjustment

for the instant offense.

 A 2003 amendment to the 5G1.3 Application Notes provides 15

that subsection (c) does not authorize an adjustment for time

served on prior undischarged term of imprisonment, but that a

sentencing court may consider a downward departure in

extraordinary cases.

12

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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).

Here, by contrast, the oral pronouncement of sentence as

well as the written judgment make clear that the federal

sentencing judge had no intent to make a Ruggiano-type

adjustment. There is no discussion whatsoever of credit for time

served. Nor is there any other suggestion, anywhere in the

record, that Petitioner sought such an adjustment or that the

trial court intended to go beyond the normative concurrent

sentence in order to impose a sentence that was retroactively

concurrent to the state sentence. Petitioner is not entitled to

relief on this claim. See Thomas v. Schultz, Civil No. 10-5162,

2012 WL 5200034 (D.N.J. Oct. 22, 2012).

III. CONCLUSION

For the reasons set forth above, the Petition will be

denied. An appropriate order follows.

S/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: November 15, 2012

13

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