In Colomba v. Holder, No. 05-13728 (Apr. 11, 2006), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241 to an inmate who challenged the Bureau of Prisons (BOP) determination regarding a concurrent sentence. BOP found that the concurrent sentence did not begin to run on the date that the first sentence was imposed, but on the date Colomba began serving his second sentence.
Colomba was convicted for two related drug trafficking offenses in two separate prosecutions. The second conviction ended with the imposition of a sentence to run concurrently with the first, which had been imposed three years earlier. Colomba argued that the sentencing court in the second case intended for the time to run from the date, three years earlier, when he began serving the first sentence, and sought an order directing BOP to so calculate his sentence.
Rejecting the argument, the Court pointed out that the concurrent sentence, as with all sentences, began to run on the date the defendant was received in custody. 18 U.S.C. § 3585. Thus, the concurrent sentence did not begin on the date of the first sentence, but on the date Coloma was received in custody for the second, concurrent sentence. The Court recognized that under USSG § 5G1.3, the sentencing court can shorten a concurrent sentence to reflect time already served. But the Guideline commentary makes clear that a sentence cannot begin prior to the date it is pronounced. Because the time for filing a § 2255 petition challenging the concurrent sentence itself had expired, the Court "presumed" that the sentencing court properly applied § 5G1.3, and deducted prospectively time from the concurrent sentence. The Court recognized that the Third Circuit held that § 5G1.3 allows a sentencing court to run a concurrent sentence "retrospectively," but held that no such authority exists.
