Raul Gonzalez-Hernandez v. Joe Coakley

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 1, 2019
• Docket: 19-6316
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6316

RAUL GONZALEZ-HERNANDEZ,

Petitioner - Appellant,

v.

JOE COAKLEY, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:18-cv-00096-FPS-JPM)

Submitted: September 26, 2019 Decided: October 1, 2019

Before WILKINSON and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Raul Gonzalez-Hernandez, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Raul Gonzalez-Hernandez, a federal inmate, appeals the district court’s order

accepting the magistrate judge’s recommendation and denying relief on his 28 U.S.C.

§ 2241 (2012) petition, which sought to challenge the computation of his remaining

sentence. For the reasons that follow, we affirm in part, vacate in part, and remand for

further proceedings.

A federal prisoner may challenge the execution of his sentence, including the

computation of his remaining term, by filing a § 2241 petition. Fontanez v. O’Brien, 807

F.3d 84, 86-87 (4th Cir. 2015). We review the denial of a § 2241 petition de novo. Id. at

86.

Initially, we agree with the district court’s determination that Gonzalez-Hernandez

was not entitled to credit from the date of his federal arraignment, October 15, 2013, to the

date of his federal sentencing and entry of judgment, September 18, 2017. Accordingly,

we affirm that part of the order for the reasons stated by the district court. Gonzalez-

Hernandez v. Coakley, No. 5:18-cv-00096-FPS-JPM (N.D.W. Va. Feb. 1, 2019).

However, having reviewed the federal sentencing transcript, which was not included

in the district court record, we conclude that Gonzalez-Hernandez might be eligible for

credit for the period of time between the entry of his federal judgment and the completion

of a previously imposed state sentence on September 22, 2017. At sentencing, the court

had discretion to run Gonzalez-Hernandez’s federal sentence concurrently with the

undischarged portion of his state sentence. See 18 U.S.C. § 3584(a) (2012). Although the

federal criminal judgment was silent on this point, “where a conflict exists between an

2 orally pronounced sentence and the written judgment, the oral sentence will control.”

United States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).

Accordingly, we grant leave to proceed in forma pauperis, vacate the district court’s

order as to the period of time between September 18, 2017, and September 22, 2017, and

remand for further consideration in light of the sentencing transcript. * We deny Gonzalez-

Hernandez’s motion to appoint counsel. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

* By this disposition, we express no opinion as to the ultimate resolution of this issue.