Gabriel Buitron v. Loretta Lynch , 651 F. App'x 526 ( 2016 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2016 *
Decided June 1, 2016
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15-3335
GABRIEL BUITRON, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of Illinois.
v. No. 14-CV-00875-DRH
JAMES CROSS, JR., David R. Herndon,
Warden, and Judge.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondents-Appellees.
ORDER
Gabriel Buitron, a United States citizen, was convicted of aggravated homicide in
Mexico and sentenced to 330 months in prison. As allowed by treaty, after serving
* The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED. R. APP. P.
34(a)(2).
No. 15-3335 Page 2
18 months in Mexico Buitron was transferred to the United States. The United States
Parole Commission determined that Buitron would serve the remaining 312 months in
prison, minus any earned good-conduct credits, plus a term of supervised release. The
total sentence was capped by statute at 330 months—the full term of his foreign
sentence. Imprisoned in Texas, Buitron appealed that sentence to the Fifth Circuit and
lost. See Buitron v. U.S. Parole Comm’n, 73 F. App’x 759, 762–64 (5th Cir. 2003). Now in
Illinois, Buitron has petitioned under 28 U.S.C. § 2241, contending that he “will be
imprisoned in excess of the statutory maximum sentence.” The district court denied
relief. Because his petition fails for procedural and substantive reasons, we affirm.
Buitron’s challenge concerns his term of supervised release. The Parole
Commission determined that Buitron’s term of supervised release would end on the
earlier of (1) 60 months from his release from prison, or (2) “the full term date of [his]
foreign sentence,” which ends February 14, 2025. More than 10 years after the Parole
Commission issued its order, Buitron filed two petitions under § 2241 related to his
supervised release. In both petitions Buitron inexplicably assumed that the Parole
Commission required a 60-month term of supervised release.
Based on that assumption, in his first petition Buitron argued that the 312-month
prison term, plus his assumed 60-month term of supervised release, amounted to a
sentence of 372 months and therefore violated 18 U.S.C. § 4106A(b)(1)(C). That statute,
which governs sentences of prisoners transferred by treaty to the United States,
provides that “[t]he combined periods of imprisonment and supervised release … shall
not exceed the term of imprisonment imposed by the foreign court.” Buitron asserted
that, in order to account for the supposedly mandatory 60 months of supervised release,
the Parole Commission had to reduce his prison term to 252 months. The district court
dismissed the petition, reasoning that Buitron could not attack the Commission’s order
collaterally under § 2241. Buitron did not appeal.
Six months later, Buitron tried again in the same district court. In his second
petition under § 2241, the dismissal of which we are now reviewing, Buitron recast his
claim as an attack, not on the Commission’s order, but on the execution of that order by
the Bureau of Prisons. He contends that the Bureau is required to deduct the
supposedly mandatory 60 months of supervised release from his 312-month
“aggregate” sentence, leaving a prison term of only 252 months. With good-conduct
credits, Buitron estimates that he should be released from prison more than 4 years
earlier than the date calculated by the Bureau.
No. 15-3335 Page 3
Reaching the merits, the district court again dismissed the petition. It did not
discuss the possibility of dismissing the petition under 28 U.S.C. § 2244(a) (“No …
district judge shall be required to entertain” a petition that a judge has previously
rejected.). See Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998). Instead, after
repeating that the claim was “not cognizable” under § 2241, the court explained that the
Parole Commission had not, in fact, required a 60-month term of supervised release;
instead the Commission had capped Buitron’s sentence at the full term date of his
foreign sentence. Thus, the court concluded that there was no error in either the
sentencing order of the Parole Commission or the Bureau’s execution of the sentence.
Buitron responded on several flanks. First, he asked the district court to
reconsider. While that motion was pending, Buitron also asked the Parole Commission
to reopen his case, making the same arguments that he had made to the district court.
The Parole Commission denied his request. He then filed in this court a petition to
review the Commission’s decision. We transferred the petition to the Fifth Circuit.
See Buitron v. U.S. Parole Comm’n, No. 15-2361 (7th Cir. July 21, 2015). There, the
government successfully argued that the Parole Commission’s decision to not reopen
his case was discretionary and not a reviewable “determination” under 18 U.S.C.
§ 4106A. See Buitron v. U.S. Parole Comm’n, No. 15-60515 (5th Cir. Oct. 8, 2015). After we
transferred Buitron’s petition, the district court denied his motion to reconsider,
precipitating his current appeal.
Buitron maintains on appeal that he challenges the Bureau’s execution of his
sentence and not the Parole Commission’s determination of his sentence, and thus he
may invoke § 2241. But Buitron’s quarrel is with the Parole Commission’s order that,
before deductions for good-conduct credits, he serve 312 months in prison. Buitron is
not disputing the Bureau’s computation of good-conduct credits, which is generally
what a challenge to the “execution” of a sentence entails. Rather, he seeks a new
sentence of 252 months’ imprisonment and 60 months’ supervised release.
See Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000); Bishop v. Reno, 210 F.3d
1295, 1304 n.14 (11th Cir. 2000); Trevino-Casares v. U.S. Parole Comm’n, 992 F.2d 1068,
1070 (10th Cir. 1993).
The question remains whether Buitron may collaterally challenge the Parole
Commission’s order under § 2241. That section “by its terms covers any claim for
release by a person who contends that his custody violates the Constitution or laws of
the United States.” Collins v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007). Section 2255, by
contrast, authorizes collateral challenges by prisoners “in custody under sentence of a
No. 15-3335 Page 4
court established by Act of Congress.” 28 U.S.C. § 2255. A foreign court is not such a
court, and the Parole Commission is not a court. Yet some circuits have said that a
sentence from the Commission under § 4106A is “in procedure, substance, and effect
tantamount to the imposition of a federal sentence, and … should, for all practical
purposes, be treated as such.” Odili v. U.S. Parole Comm’n, 474 F.3d 1255, 1259 (11th Cir.
2007) (quoting Bennett v. U.S. Parole Comm’n, 83 F.3d 324, 327 (10th Cir. 1996)). We,
however, have not embraced this view. See Cafi v. U.S. Parole Comm’n, 268 F.3d 467, 474
(7th Cir. 2001) (“… Section 4106A provides that the Commission is to determine a
release date and terms and conditions of supervised release ‘as though the defendant
were sentenced in a district court;’ it does not provide that a defendant is actually
sentenced under the federal statutory and guideline provisions.”).
No matter. Even if a prisoner may collaterally challenge a § 4106A sentence from
the Parole Commission under § 2241, Buitron must still lose here. First, he never raised
in his original appeal from the Parole Commission to the Fifth Circuit the argument,
which he attempts here, that the Commission’s sentence exceeds the statutory
maximum. Collateral proceedings are not second runs of direct appeals. Cf. Barnickel v.
United States, 113 F.3d 704, 706 (7th Cir. 1997); Qualls v. United States, 774 F.2d 850, 851
(7th Cir. 1985). Second, as we have observed, Buitron already lost this argument in his
prior, unappealed collateral challenge under § 2241, and he has not explained why he is
entitled to relitigate it. Cf. Toliver v. Pollard, 688 F.3d 853, 861 (7th Cir. 2012); White v.
United States, 371 F.3d 900, 902–03 (7th Cir. 2004).
But even if we overlook these procedural obstacles, Buitron’s challenge (whether
characterized as a challenge to his sentence or its execution) fails on the merits.
Buitron’s claim rests on the faulty assumption that he is required to serve a 60-month
term of supervised release. The Parole Commission, however, ordered Buitron to serve
312 months in prison, minus good-conduct credits, plus a term of supervised release
that must end on the earlier of 60 months or the full term of his foreign sentence.
Because his time on supervised release is capped by the full term of his foreign
sentence, his sentence in the United States necessarily complies with 18 U.S.C.
§ 4106A(b)(1)(C). See Cafi, 268 F.3d at 472–75 (upholding on direct appeal a structurally
identical sentence); Bender v. U.S. Parole Comm’n, 802 F.3d 690, 694–96 (5th Cir. 2015)
(same).
We close with a stern warning. Buitron has received multiple rulings rejecting
various iterations of the claim he has raised here. If he pursues any further collateral
No. 15-3335 Page 5
attacks of his sentence based on this claim, he risks sanctions, including a filing bar.
See Alexander v. United States, 121 F.3d 312, 316 (7th Cir. 1997).
AFFIRMED.