GONZALEZ HERNANDEZ v. COAKLEY (2019)

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, 2019 WL 413550 (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 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

FOOTNOTES

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

PER CURIAM:

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.