Case 1:24-cv-00235-KMW Document 9 Filed 10/21/24 Page 1 of 6 PageID: 159
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`STEVEN JUSTO,
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`WARDEN,
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`Petitioner,
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`v.
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`Respondent.
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`Civil Action No. 24-235 (KMW)
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`OPINION
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`WILLIAMS, District Judge:
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`This matter comes before the Court on the habeas petition filed by Petitioner Steven Justo
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`pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer, the Government filed
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`a response to the petition (ECF No. 8), to which Petitioner failed to reply. (ECF Docket Sheet.)
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`For the following reasons, the petition is denied.
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`I.
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`BACKGROUND
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`On April 29, 2019, Petitioner was arrested on drug charges and entered into criminal
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`proceedings in this District under Docket No. 19-3150. (See ECF No. 801 at 1.) Petitioner was
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`released to home confinement on pretrial supervision the following day. (Id.) Petitioner was
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`remanded into pretrial confinement on January 21, 2020. (Id.) He was thereafter indicted on drug
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`charges in the Southern District of New York on March 12, 2020. (Id. at 2.) On October 22, 2020,
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`Petitioner was sentenced in Docket No. 19-3150 to a sixty-month term of imprisonment for a
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`violation of 21 U.S.C. § 846 arising out of a conspiracy to distribute cocaine. (Id.) On August 5,
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`2021, Petitioner was sentenced to a 120-month term of imprisonment in his SDNY criminal matter,
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`which was ordered to run concurrent with the 60-month sentence imposed in this District. (Id.)
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`During his sentencing before the SDNY, the sentencing judge observed that, based on his
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`offense level and criminal history, Petitioner was faced with a suggested guidelines range of
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`between 135 to 168 months’ imprisonment, subject to a 120-month mandatory minimum. (See
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`ECF No. 1-1 at 5.) Although the parties agreed not to seek a departure from the recommended
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`range, the sentencing judge raised the issue of whether Petitioner was entitled to a departure under
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`U.S.S.G. § 5G1.3(b), which mandates that a defendant currently serving a sentence for a related
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`criminal charge receive credit towards his new sentence for time spent in prison for that related
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`charge. (Id. at 9.) The sentencing judge noted that probation thought the appropriate amount of
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`time was seventeen or eighteen months, while the parties suggested the appropriate adjustment
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`would be between three and five months based on prior jail time credit Petitioner had already
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`received for time spent in jail prior to his New Jersey conviction and their speculation that the BOP
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`would not credit Petitioner for the period between his New Jersey and New York sentencings. (Id.
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`at 12.) The sentencing judge, after noting the 135 to 168 month recommended range, sentenced
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`Petitioner as follows:
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`120 months is a substantial sentence in my judgment, between
`whatever credit [Petitioner] is entitled to under 5G1.3 – whether
`that’s four months or 18 months – and other mitigating
`circumstances that I’ll mention in a moment, I think that is an
`appropriate sentence and that any longer sentence would be greater
`than necessary to serve the purposes of sentencing. . . [a]nd I will
`impose it to run concurrently with the District of New Jersey
`sentence in accord with Section 5G1.3.
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`(Id. at 16-17.)
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`Following the New York sentence, the BOP determined that both sentences commenced
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`on their respective sentencing dates, and determined that Petitioner’s full prison term would be ten
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`2
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`years, nine months, and fourteen days, including both his sixty-month sentence from the New
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`Jersey matter, and the five years, nine months, and fourteen months that will remain of Petitioner’s
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`ten-year New York sentence once the New Jersey sentence is complete. (ECF No. 8-1 at 2-3.)
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`Petitioner now contends that this calculation fails to provide Petitioner with credits under § 5G1.3
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`which Petitioner believes his sentencing judge intended him to receive. (See generally ECF No.
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`1.) Petitioner therefore requests that his sentence be reduced so that his total imprisonment term
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`amounts to ten years, and thus suggests he should receive a sentence calculation reduction of
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`approximately nine and a half months. (Id. at 7-8.)
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`II.
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`LEGAL STANDARD
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`Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
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`in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
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`2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
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`and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
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`States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989).
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`III. DISCUSSION
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`In his habeas petition, Petitioner argues that his sentence calculation should be reduced by
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`over nine months so that his total term is ten years, which he believes was the intention of his
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`sentencing judge. The calculation of a prisoner’s federal sentence has been entrusted to the
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`Attorney General, who has in turn delegated that authority to the BOP. See United States v. Wilson,
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`503 U.S. 329, 333-35 (1992); 28 C.F.R. § 0.96. The calculation of a prison term is a two-step
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`process – the BOP determines the sentence’s commencement date, and then provides credit
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`towards that sentence for any prior custody which has yet to be attributed to another sentence. See
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`3
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`Alvarez v. Schultz, No. 07-5316, 2008 WL 2684127, at *2 (D.N.J. July 1, 2008); see also 18 U.S.C.
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`§ 3585. Because sentences are statutorily defined as commencing when a prisoner is received into
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`custody for transportation to serve his imposed sentence, see § 3585(a), the BOP has determined
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`that “[i]n no case can a federal sentence of imprisonment commence earlier than the date on which
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`it is imposed.” See BOP Program Statement 5880.28 § 3(b) at 1-13; see also Rashid v. Quintana,
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`372 F. App’x 260, 262 (3d Cir. 2010) (a “federal sentence [is] properly calculated as commencing
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`on the date it was imposed”). Here, the BOP properly determined that Petitioner’s New Jersey
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`sentence commenced during his October 2020 sentencing and that his New York sentence
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`commenced on the date of his sentencing – August 5, 2021. When the BOP thereafter aggregated
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`those sentences as required by 18 U.S.C. § 3584(c), the BOP calculated that Petitioner’s total
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`sentence was 10 years, nine months, and fourteen days – effectively the ten-year mandatory
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`minimum sentence imposed in his New York criminal matter, and the nine and a half months he
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`spent in prison pursuant to his New Jersey sentence prior to his sentencing in New York. Because
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`the BOP properly determined the start date of the New York sentence, and neither this Court nor
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`the BOP have the authority to back date the start date of his New York conviction, this calculation
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`appears entirely proper under the circumstances.
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`Petitioner now argues that this calculation improperly subjects him to more than ten years
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`in prison on his concurrent New York term, and argues that this robs him of the New York judge’s
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`intent that he receive credits under § 5G1.3. Under § 5G1.3(b), where a defendant is already
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`serving an undischarged term of imprisonment for an offense which constitutes related conduct
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`for his current offense, the sentencing judge “shall adjust the sentence for any period of
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`imprisonment already served on the undischarged term of imprisonment if the court determines
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`that such period of imprisonment will not be credited to the federal sentence by the Bureau of
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`Prisons” and shall impose the current sentence concurrent to the prior, related offense. The
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`4
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`guideline thus provides the sentencing court with the authority to adjust a sentence to account for
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`prior incarceration that the judge believes will not be credited by the BOP. The guideline does not
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`provide the BOP with any power or authority to modify an imposed term of imprisonment.
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`Petitioner argues that his New York sentencing judge intended him to receive some
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`unspecified amount of additional credit towards his sentence and that the BOP should have
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`calculated and provided Petitioner with more credit than he has received. Petitioner’s
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`interpretation of the sentencing judge’s intent, however, is not clearly correct. During sentencing,
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`the sentencing judge discussed § 5G1.3 and the agreement between the parties that Petitioner was
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`likely entitled to a downward departure of between three and eighteen months for time spent in
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`custody which the BOP would not credit him. The judge thereafter substantially departed from
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`the 135-month bottom of the recommended guidelines range and imposed a 120-month term of
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`imprisonment, thus providing Petitioner with a fifteen-month downward departure to the statutory
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`minimum sentence of 120 months. In so doing, the judge credited this downward departure as
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`being the result of “whatever credit” Petitioner was entitled to under § 5G1.3 and various other
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`mitigating factors. The sentencing judge also discussed with counsel whether he could backdate
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`the conviction and agreed that he could not do so.
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`Thus, a natural reading of the sentence imposed is that the sentencing judge, understanding
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`that Petitioner’s sentence would commence that day and no earlier, reduced Petitioner’s sentence
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`by taking into account, among other things, the amount of credit Petitioner would not receive from
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`the BOP for prior custody credit under 5G1.3(b). Thus, this fifteen-month reduction appears to be
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`the judge actually taking § 5G1.3(b) into account, and it does not appear that the sentencing judge
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`intended any further reduction beyond that fifteen-month downward departure to the statutory
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`mandatory minimum. Consequently, it appears that Petitioner is mistaken that the BOP is not
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`properly taking into account the sentence imposed by the sentencing judge and is calculating
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`5
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`Petitioner’s sentence in accordance with the judge’s intent that Petitioner receive a ten-year
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`concurrent sentence which began on the date of its imposition. Moreover, the sentencing judge
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`expressly noted that the “BOP makes a determination of essentially what date the sentence
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`commences on, and the Court doesn’t have authority to do that.”. Therefore, in light of the
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`sentencing judge’s clear statements related to the respective role of the court and the BOP, this
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`Court finds that Petitioner is not entitled to further credit, and his habeas petition is denied.
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`IV. CONCLUSION
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`For the reasons expressed above, Petitioner’s habeas petition (ECF No. 1) is DENIED
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`WITHOUT PREJUDICE. An order consistent with this Opinion will be entered.
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`Hon. Karen M. Williams,
`United States District Judge
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`6
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