Bobby Keys v. Warden, FCC Coleman ( 2022 )


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  • USCA11 Case: 21-11905      Date Filed: 02/04/2022   Page: 1 of 4
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-11905
    Non-Argument Calendar
    ____________________
    BOBBY KEYS,
    Petitioner-Appellant,
    versus
    WARDEN, FCC COLEMAN,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Middle District of Florida
    D.C. Docket No. 5:19-cv-00201-BJD-PRL
    ____________________
    USCA11 Case: 21-11905        Date Filed: 02/04/2022     Page: 2 of 4
    2                      Opinion of the Court                21-11905
    Before ROSENBAUM, ANDERSON and DUBINA, Circuit Judges.
    PER CURIAM:
    Appellant Bobby Keys, a federal prisoner, appeals the district
    court’s denial of his pro se 
    28 U.S.C. § 2241
     habeas corpus petition.
    He argues that the Federal Bureau of Prisons (“BOP”) incorrectly
    treated his 150-month mail-fraud sentence and 22-month revoca-
    tion-of-supervised-release sentence, imposed at different times, as
    consecutive when both judgments were silent as to whether the
    sentence would run concurrently or consecutively to any other
    sentence. Keys further asserts that, under 
    18 U.S.C. § 3584
    (c), the
    BOP was required to treat his 2 sentences as a single 172-month
    term of imprisonment for purposes of calculating his good-time
    credit and failed to do so. After reviewing the record and reading
    the parties’ briefs, we affirm the district court’s judgment denying
    Keys habeas relief.
    I.
    We review de novo questions of law in the denial of a peti-
    tion for a writ of habeas corpus. Andrews v. Warden, 
    958 F.3d 1072
    , 1076 (11th Cir. 2020).
    Under § 3584(a) of Title 18 of the U.S. Code, “if a term of
    imprisonment is imposed on a defendant who is already subject to
    an undischarged term of imprisonment, the terms may run concur-
    rently or consecutively[.] . . . Multiple terms of imprisonment im-
    posed at different times run consecutively unless the court orders
    USCA11 Case: 21-11905        Date Filed: 02/04/2022     Page: 3 of 4
    21-11905               Opinion of the Court                        3
    that the terms are to run concurrently.” 
    18 U.S.C. § 3584
    (a). In
    Setser v. United States, the Supreme Court held that, under
    § 3584(a), the district court has the exclusive authority to deter-
    mine whether a sentence is to run concurrently or consecutively to
    any other sentence and that § 3621(b) does not grant any such au-
    thority to the BOP. Setzer, 
    566 U.S. 231
    , 239, 
    132 S. Ct. 1463
    , 1470
    (2012). Section 7B1.3(f) of the Federal Sentencing Guidelines states
    that “[a]ny term of imprisonment imposed upon the revocation of
    probation or supervised release shall be ordered to be served con-
    secutively to any sentence of imprisonment that the defendant is
    serving, whether or not the sentence of imprisonment being served
    resulted from the conduct that is the basis of the revocation of pro-
    bation or supervised release.” U.S.S.G. § 7B1.3(f).
    The record demonstrates that the district court correctly
    found that the BOP properly treated Keys’s sentences as consecu-
    tive because they were imposed at different times, and both judg-
    ments were silent as to whether the sentence would run concur-
    rently or consecutively to any other sentence. See 
    18 U.S.C. § 3584
    .
    The record indicates that the courts sentenced Keys for his viola-
    tions of supervised release and his mail fraud convictions at differ-
    ent times, and the courts did not state in either judgment that the
    sentences were to run concurrently. Although the sentencing
    courts had the discretion to choose whether to run the sentences
    concurrently or partially concurrently, they did not exercise that
    discretion. Thus, the BOP correctly treated the sentences as
    USCA11 Case: 21-11905        Date Filed: 02/04/2022    Page: 4 of 4
    4                      Opinion of the Court               21-11905
    consecutive, and the district court did not err in denying Keys ha-
    beas relief on this ground.
    II.
    The record shows that Keys, for the first time on appeal, ar-
    gues that the BOP was required to treat his sentences as a single
    term of imprisonment for the purposes of calculating good-time
    credit. Keys contends that his 22-month sentence for violations of
    supervised release and his 150-month sentence for mail fraud
    should be aggregated into one single 172-month sentence for pur-
    poses of good time credit. However, because Keys raises this issue
    for the first time on appeal, we will not consider it. See Boyd v.
    Warden, 
    856 F.3d 853
    , 877 (11th Cir. 2017).
    Based on the aforementioned reasons, we affirm the district
    court’s order denying relief on Keys’s § 2241 petition.
    AFFIRMED.
    

Document Info

Docket Number: 21-11905

Filed Date: 2/4/2022

Precedential Status: Non-Precedential

Modified Date: 2/4/2022