Berrios Osorio v. Federal Bureau of Prisons

Background

Olvyn Avilo Berrios Osorto filed a petition under 28 U.S.C. § 2241 challenging the Federal Bureau of Prisons’ calculation of his sentence. The case caption spells his last name “Osorio,” but the report explains that his supporting memorandum and the criminal cases use “Osorto,” which the court treats as the correct spelling.

Berrios Osorto received a 48-month federal sentence in the Western District of Texas in 2020 after pleading guilty to conspiracy to transport illegal aliens. He received credit for custody time beginning April 22, 2019, and documents submitted with his petition indicated that he completed that sentence sometime in 2022. He was later sentenced in another federal case to 120 months for possessing at least 500 grams of methamphetamine. That court ordered the later sentence to run concurrently—that is, at the same time—with the earlier sentence.

The Bureau of Prisons refused to apply the time credited to the first sentence to the later sentence. It reasoned that Berrios Osorto was no longer serving the first sentence when the second sentence was imposed, so the sentences could not run concurrently. Berrios Osorto argued that the concurrency order required credit for all time he had served on the first sentence.

Analysis

The report explains that a federal sentence cannot begin before the date it is imposed. When a court orders a later sentence to run concurrently with an earlier sentence, the later sentence can overlap only with whatever portion of the earlier sentence remains unserved when the later sentence is imposed. The report states that it appeared extremely unlikely Berrios Osorto was still serving the first sentence when the second sentence was imposed on May 18, 2023.

The report also explains that “concurrent” does not mean that two sentences have the same starting date. If Berrios Osorto had still had time remaining on the first sentence, the second sentence would have run at the same time only as that remaining portion. It would not have created a right to transfer all credit from the first sentence to the second.

The report relies on 18 U.S.C. § 3585(b), which allows credit for qualifying custody before a sentence begins only when that time has not already been credited against another sentence. Because Berrios Osorto had received credit for the custody time on the first sentence, the report concludes that the same time could not be credited again toward the second sentence.

Recommendation and procedural status

The magistrate judge recommends that Berrios Osorto’s sentence-credit petition be denied and that the matter be dismissed without prejudice. The document is a report and recommendation, not an order or judgment of the District Court. It states that the recommendation is not directly appealable to the Eighth Circuit. The notice allows a party to file specific written objections within 14 days after being served with the report and recommendation, with a response due within 14 days after service of any objections.