United States v. Swenson , 346 F. App'x 325 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
September 29, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-4025
v. (D. Utah)
KENDALL ROSSEL SWENSON, (D.C. No. 03-CR-00135-TS-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Kendall Rossel Swenson was initially convicted of
one count of attempted bank larceny, in violation of 18 U.S.C. § 2113(a), in
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
federal district court in Utah in 2003. 1 He was sentenced to twenty-seven months’
imprisonment, followed by three years of supervised release. In January 2006,
Mr. Swenson was released from prison and began serving his federal supervised
release.
While on supervised release, Mr. Swenson was arrested in Logan, Utah, and
charged with various state law counts of burglary, criminal mischief, theft, theft
by receipt of stolen property, and manufacture or possession of burglary tools.
Mr. Swenson was released on bail twice by state authorities. When a Utah state
court reinstated Mr. Swenson’s bail on September 12, 2006, he nevertheless
continued to be held in jail based upon a federal supervised release violator
warrant that was lodged as a detainer.
On October 19, 2006, Mr. Swenson was convicted of those state law
crimes and placed in the Utah State Prison system to serve his sentences for them.
The court directed all counts to run concurrently and, as the court explained in its
1
Many of the facts recited in this case are taken from the decision of our
court affirming the Utah federal district court’s denial of Mr. Swenson’s request
for a hearing pursuant to Fed. R. Crim. P. 32.1(a). United States v. Swenson, 250
Fed. Appx. 838, 2007 WL 2962375 (10 th Cir. Oct. 10, 2007). Rule 32.1(a)
provides that one “held in custody for violating probation or supervised release
must be taken without unnecessary delay before a magistrate judge.” We
affirmed the district court’s denial of a hearing on the ground that “the admitted
fact that Mr. Swenson is currently serving a state sentence for his state crimes
means that he is in state custody. Rule 32.1(a) entitles only those currently in
federal custody to a hearing, and that fact that Mr. Swenson is not in federal
custody ends our inquiry.” Id., 250 Fed. Appx. at 839-40, 2007 WL 2962375, at
**2.
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subsequent order disposing of Mr. Swenson’s motion to amend the original
sentence, judgment and commitment, it particularly directed that the “state’s case
is not to run consecutive to any proceedings by the Federal authorities and that
this sentence can be served concurrent at any applicable Federal institution or the
Utah State Prison.” Order at 2, R. Vol. 1 at p.30.
Apparently as early as October 2006, Mr. Swenson filed a motion before
the federal district court asking the court to appoint him counsel and conduct a
timely supervised release violation hearing, pursuant to Fed. R. Crim. P. 32.1. On
May 20, 2007, Mr. Swenson filed another pro se motion in the federal district
court, again asking for a timely revocation hearing. On June 16, 2007, the district
court denied his motion, without determining whether he was primarily in the
custody of federal or state authorities when he was “released” on bail by state
authorities on September 12, 2006, but remained in custody pursuant to the
federal detainer. 2 Our court affirmed that denial. Swenson, 250 Fed. Appx. 838.
Upon completion of those state sentences, Mr. Swenson was paroled into
federal custody on September 2, 2008, pursuant to the federal detainer. On
September 23, 2008, Mr. Swenson admitted to the supervised release violations,
which consisted of the state convictions which led to his Utah prison sentences.
Prior to his sentencing for those supervised release violations, Mr. Swenson
argued that the federal authorities had obtained primary custody over him when
2
See note 1, supra.
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the state “released” him on bail on September 12, 2006 (but he remained in
custody pursuant to the federal detainer), and that he should therefore receive
credit for time served in federal custody, starting on September 12, 2006.
Although the district court recognized that part of Mr. Swenson’s state jail time
could be considered to have taken place while he was in federal custody, the court
declined to give Mr. Swenson credit for that jail time. Accordingly, on January
13, 2009, the district court sentenced Mr. Swenson to one year and one day of
imprisonment.
Mr. Swenson filed two further pro se requests before the district court
relating to his sentence. The first, filed in February 2009, asked the district court
to “amend [his] recent sentence, designating the Utah State Prison as the federal
facility for the service of [his] sentence of 1-year and 1-day.” Request at 1. The
district court denied Mr. Swenson’s request, stating:
18 U.S.C. § 3682(b) states that “[t]he Bureau of Prisons shall
designate the place of the prisoner’s confinement.” The Tenth
Circuit has explained that § 3621(b) gives the Bureau of Prisons the
primary authority to determine the facility where a prisoner should
be placed. Further, the Supreme Court has held that federal prisoners
generally enjoy no constitutional right to placement in any particular
institution. Based on this, the Court finds that it lacks the authority
to mandate Defendant’s placement at a particular facility.
Mem. Dec. & Order at 1-2 (citing Prows v. Fed. Bureau of Prisons, 981 F.3d 466,
468 n.3 (10 th Cir. 1992)) (footnote omitted). Mr. Swenson’s second pro se
petition requested an order granting him credit towards his federal sentence for
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the six months he spent in the Cache County jail while he was “on bail” for the
state indictments but also subject to the federal detainer. The district court again
denied Mr. Swenson’s request, stating:
18 U.S.C. § 3585(b) provides that “[a] defendant shall be given
credit toward the service of a term of imprisonment for any time he
has spent in official detention prior to the date the sentence
commences . . . that has not been credited against another sentence.”
The Bureau of Prisons (“BOP”) has long been responsible for
computing sentence credit under § 3585(b). “[O]nly the Attorney
General through the Bureau of Prisons has the power to grant
sentence credit in the first instance.” Until the Attorney General,
through the BOP, makes a § 3585(b) determination, the matter is not
ripe for Court review, and the Court lacks jurisdiction.
United States v. Swenson, No. 2:03-CR-135TS, 2009 WL 2477257, at *1 (D.
Utah, Aug. 12, 2009) (unpublished). This appeal followed.
Mr. Swenson’s appointed counsel, Deirdre Gorman, has filed an Anders
brief and has moved to withdraw as counsel. See Anders v. California, 386 U.S.
738 (1967). Mr. Swenson has filed a one-page response agreeing with his
attorney that “[n]o procedural errors occurred when Judge Stewart sentenced
[him] on January 13, 2009," that “any appeal of that sentence would be
‘frivolous,’ and that [his] attorney should be allowed to withdraw.” Letter
7/28/09. The government has declined to file a brief. We therefore base our
conclusion on counsel’s brief and our own careful review of the record. For the
reasons set forth below, we agree with Ms. Gorman and Mr. Swenson that the
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record in this case provides no nonfrivolous basis for an appeal, and we therefore
grant Ms. Gorman’s motion to withdraw and dismiss this appeal.
The only conceivable challenge Mr. Swenson could make would be to his
sentence. “We review sentences for reasonableness under a deferential abuse of
discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10 th Cir.
2008) (citing Gall v. United States, 128 S. Ct. 586, 591 (2007)). “Reasonableness
review is comprised of a procedural component and a substantive component.”
Id. Procedural unreasonableness occurs “if the district court incorrectly
calculates or fails to calculate the Guidelines sentence, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous
facts, or inadequately explains the sentence.” Id. A sentence is substantively
unreasonable if its length “is unreasonable given the totality of the circumstances
in light of the 18 U.S.C. § 3553(a) factors.” Id.
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] where counsel conscientiously examines a case and determines that any
appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930
(10 th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel
to:
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The court must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
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such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744). As indicated, Mr. Swenson has submitted a
filing in which he states his agreement with his counsel that any appeal is
frivolous, and the government has declined to respond.
We agree with counsel and Mr. Swenson that there is no nonfrivolous issue
related to Mr. Swenson’s sentence which could form the basis for an appeal. As
counsel concedes, “[n]o procedural errors occurred during Mr. Swenson’s
sentencing.” Appellant’s Br. at 6. At sentencing, the district court noted that the
Guidelines recommended a sentence of eighteen to twenty-four months. The
court considered the arguments of both Mr. Swenson and the government: on the
one hand, that Mr. Swenson’s work situation was currently stable and that he had
made efforts to “deal with his drug problem,” Tr. of Supervised Release
Sentencing at 8, R. Vol. 3, and, on the other hand, that he had violated his
supervised release in a “significant fashion.” Id. at 9. The court rejected the
government’s argument that eighteen months was an appropriate sentence.
The court also acknowledged Mr. Swenson’s argument that his federal
custody should have started on September 12, 2006, when state authorities
granted him release on bail, but he nonetheless remained incarcerated because of
the federal detainer, and he therefore should have been sentenced to “time served”
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or at least received some credit for that time towards his federal sentence. The
court observed:
[T]he Court does not agree . . . that the two years that the defendant
spent in state custody was in effect federal custody. The Court
believes that issue was settled by the Tenth Circuit. The Court,
however, does believe that that period of time from September 2006
on, that roughly six to seven months when he arguably could have
been in federal custody, that is not for this Court to decide. . . .
...
I will leave it up to [Mr. Swenson’s counsel] to argue with the
Bureau of Prisons that that six or seven months was federal custody
and presuming that they give him credit for it, the sentence he will
serve will be a rather short sentence. . . .
...
[T]he Court still believes the sentence of one year and one day is the
appropriate sentence. Whether or not he will have served that
partially or not will have to be determined by the Bureau of Prisons.
Id. at 8-10.
As Mr. Swenson’s counsel states, Mr. Swenson’s “main concern . . . is . . .
his ability to receive credit against his sentence for the ‘six or seven months’ that
the district court properly recognized as being federal custody while Mr. Swenson
was in the Cache County jail.” Appellant’s Br. at 7. This issue does not,
however, provide any basis for a nonfrivolous argument on appeal. As everyone
acknowledges, our court in Mr. Swenson’s prior direct appeal characterized
Mr. Swenson’s status as that of one in state custody during the relevant time
period. See Swenson, 250 Fed. Appx. at 839-40. We further stated that:
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Even assuming that, after his arrest in Logan, Utah and prior to his
Cache County conviction, Mr. Swenson was detained for some period
of time due solely to a federal detainer–a determination we are
unable to make conclusively on the record before us–and even
assuming that such a detention required a sentencing revocation
hearing, the moment Mr. Swenson was convicted of a state crime and
began serving his sentence, he was properly in the custody of the
state of Utah and that claim was rendered moot.
Id. at 840 n.1. Accordingly, while there may have been some indeterminate
period of time when he may have been in “federal custody,” he clearly was in
state custody once he was convicted of the state crimes and while he served his
state sentences. And to the extent Mr. Swenson argues that he should have been
given some credit for that indeterminate period of time against his federal
sentence, any such credit determination is properly made in the first instance by
the Bureau of Prisons, not the sentencing court. See United States v. Wilson, 503
U.S. 329, 335-36 (1992); United States v. Jenkins, 38 F.3d 1143, 1144 (10 th Cir.
1994).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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