Frederick Banks v. Warden Fort Dix FCI

• Court: Court of Appeals for the Third Circuit
• Decided: April 18, 2022
• Docket: 22-1017
• Status: Unpublished

Opinion

ALD-111 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1017 ___________

FREDERICK H. BANKS, Appellant

v.

WARDEN FORT DIX FCI; WARDEN ALLENWOOD FCI LOW ____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 21-cv-01215) District Judge: Honorable Christopher C. Conner ____________________________________

Submitted on Appellees’ Motion for Summary Affirmance Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 24, 2022 Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges

(Opinion filed: April 18, 2022) __________

OPINION* __________ PER CURIAM

Frederick Banks appeals from the District Court’s order denying his petition filed

pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily affirm the

District Court’s order.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. In 2006, Banks was sentenced to 63 months in prison and 36 months of supervised

release after being convicted of multiple counts of mail fraud. Shortly after he was

released from prison in 2013, the District Court revoked his supervised release because it

found that Banks had committed wire fraud and aggravated identity theft. He was

sentenced to 14 months in prison and 6 months of supervised release at a community

correctional center. We affirmed the revocation of supervised release. See United States

v. Banks, 572 F. App’x 162, 163 (3d Cir. 2014). Banks’s supervised release expired in

May 2015. See United States v. Banks, 612 F. App’x 643, 643 (3d Cir. 2015).

In August 2015, Banks was arrested, and, in 2020, he was convicted of wire fraud

and aggravated identity theft. He is currently serving 104 months in prison for those

convictions. In 2021, he filed a § 2241 petition in which he alleged that the Bureau of

Prisons had failed to apply a 20-month prior jail credit from 2013. He contended that he

was entitled to credit on his current sentence for the time served on the violation of

supervised release because the violation was based on the same conduct as his recent

convictions. The District Court determined that Banks had failed to exhaust his claims

and that his claims were without merit. Banks filed a notice of appeal and his brief on

appeal, and the Government has filed a motion for summary affirmance.

We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the

District Court’s legal conclusions. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d

Cir. 2002) (per curiam). We need not address whether Banks exhausted his claims

because we agree that they are without merit.

2 The District Court correctly determined that Banks was not entitled to any prior

custody credit because he received credit for the time at issue towards his sentence for

violating his supervised release. As explained by the District Court, under 18 U.S.C.

§ 3585(b) a defendant can only receive credit towards a federal sentence for prior custody

“that has not been credited against another sentence.” Here, the 20 months of time that

Banks seeks credit for were already credited towards another sentence.

In his brief, Banks argues that 18 U.S.C. § 3584(a) requires that terms of

imprisonment for attempt crimes run concurrently. That statute, however, provides that a

term of imprisonment for an attempt crime must run concurrently with a term of

imprisonment for an offense that was the sole objective of the attempt. That is not the

situation here. Rather, Banks seeks credit for a term of supervised release based on

conduct that also led to a new conviction and sentence.

Summary action is appropriate if there is no substantial question presented in the

appeal. See 3d Cir. LAR 27.4. For the reasons set forth above, we grant the

Government’s motion and will summarily affirm the District Court’s December 17, 2021

order. See 3d Cir. I.O.P. 10.6.