MEMORANDUM OPINION & ORDER
JOHN D. RAINEY, Senior District Judge.
Pending before the Court is Movant Jesus Alcala-Mendoza's ("Alcala-Mendoza") motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 349) and memorandum in support (Dkt. No. 350). The United States of America (the "Government") filed a motion to dismiss this action (Dkt. No. 361), to which Alcala-Mendoza responded (Dkt. No. 366).
On June 22, 2011, Alcala-Mendoza pled guilty, pursuant to a written plea agreement, to conspiracy to transport unlawful aliens in a motor vehicle in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(1), and 1324(a)(1)(B)(i). (Plea Agreement, Dkt. No. 171.) The Court reviewed the plea agreement with Alcala-Mendoza at rearraignment. (Tr. 6/22/2011, Dkt. No. 358 at 8:15-12:2.) At that time, Alcala-Mendoza acknowledged that he had signed the plea agreement knowingly and voluntarily, that he was aware that he had waived his right to appeal or collaterally attack his conviction or sentence, and that he understood that he was subjecting himself to a potential penalty range of up to 10 years in prison. ( Id. at 9:15-12:15.) The Court accepted the guilty plea and set the case for sentencing.
The U.S. Probation Office prepared a presentence investigation report (PSR) recommending a base offense level of 12 pursuant to U.S.S.G. § 2L1.2(a)(3) (PSR, Dkt. No. 211 ¶ 33.) The PSR recommended that the offense level be increased by 9 levels based on Alcala-Mendoza's accountability for transportation of over 450 aliens and by another 2 levels because the offense intentionally or recklessly created a substantial risk of death or serious bodily injury to another person, for a total base offense level of 23. ( Id. ) After a three-level reduction for acceptance of responsibility, Alcala-Mendoza's total offense level was 20. ( Id. ¶¶ 39, 42.) Alcala-Mendoza's criminal history points totaled 13, establishing a criminal history category of VI. ( Id. ¶ 52.) Based on a total offense level of 20 and a criminal history category of VI, the guideline range of imprisonment was 70 to 87 months. ( Id. ¶ 70.)
Alcala-Mendoza's criminal history included a 2008 conviction in the Southern District of Texas-McAllen Division in Case No. 7:08-CR-963-1, in which he was sentenced to 46 months in prison after pleading guilty to harboring an undocumented alien. (PSR ¶ 51.) At the time the PSR was prepared in the present case in September 2011, Alcala-Mendoza had not yet completed his 46-month sentence in 7:08-CR-963-1; therefore, the PSR advised that pursuant to U.S.S.G. § 5G1.3(c) comment (n.6), Alcala-Mendoza's sentence could be imposed to run concurrently, partially concurrently, or consecutively to the then-undischarged term of imprisonment in 7:08-CR-963-1. ( Id. ¶ 71.) The PSR also pointed out that U.S.S.G. § 5K1.1 "encouraged downward departure should the defendant provide substantial assistance to the Government." ( Id. ¶ 82.)
On March 6, 2012, the Court sentenced Alcala-Mendoza to 42 months in prison, expressly providing as follows: "The Court is granting 12 months credit for the sentence already served in Dkt. No. 7:08CR963-1. Therefore, of the 42 months sentence, 30 months is to be served consecutively to the sentence imposed in Dkt. No. 7:08CR963-1." (Judgment, Dkt. No. 286 at 2.) Unbeknownst to the Court, Alcala-Mendoza had already completed his sentence in 7:08-CR-963-1 at the time he was sentenced in this case.
Alcala-Mendoza did not appeal. The judgment therefore became final on April 3, 2012- the deadline for filing notice of appeal. See Clay v. United States, 537 U.S. 522 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000) (per curiam) (a judgment becomes final when the applicable period for seeking review of a final conviction has expired); FED. R. APP. P. 4(b)(1)(A)(i) (providing that, a criminal defendant's notice of appeal must be filed in the district court within 14 days after the entry of either the judgment or the order being appealed).
On March 21, 2013, Alcala-Mendoza filed a motion under 28 U.S.C. § 3582 complaining that the Bureau of Prisons (BOP) would not give him 12 months credit toward his sentence in this case based on time served in Case No. 7:08-CR-963-1, as set forth in the Court's Judgment. ( See Dkt. No. 332.) Because Alcala-Mendoza did not challenge the length of his sentence as imposed by the Court, but instead challenged the BOP's determination of its duration, the Court construed Alcala-Mendoza's motion as one pursuant to 28 U.S.C. § 2241. (Dkt. No. 339 at 1 (citing Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the appropriate vehicle in which "a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration") (citations omitted)).) The Court ultimately denied Alcala-Mendoza's motion without prejudice based on lack of jurisdiction, explaining that a challenge to the BOP's administrative decision pursuant to 28 U.S.C. § 2241 must be filed in the district where the defendant is incarcerated-in this case, the Northern District of Georgia. ( Id. at 2 (citing Pack, 218 F.3d at 451; United States v. Wilson, 503 U.S. 329, 335 (1992)).) It is unclear whether Alcala-Mendoza filed a § 2241 motion in the Northern District of Georgia; however, on June 20, 2013, he filed the presently-pending § 2255 motion.
II. Petitioner's Claims
In his § 2255 motion, Alcala-Mendoza again complains that the BOP will not give him credit for 12 months of his 42-month sentence in this case based on time served in Case No. 7:08-CR-963-1. In support of this claim, Alcala-Mendoza has attached a copy of a letter from the BOP dated July 31, 2012, whereby the BOP informed Alcala-Mendoza as follows:
A review of our records indicates the sentence imposed in [case] number 7:08CR963-1 was satisfied on October 20, 2011. The [BOP]'s interpretation of title 18 U.S.C. 3585(a) precludes a term of imprisonment from commencing prior to the date of imposition. Therefore it is not possible to compute the sentence as ordered. As such your sentence has been computed to commence on March 6, 2012, the date of imposition.
(Dkt. No. 350, Ex. 1.) Because the BOP will not give him credit for those 12 months as set forth in the Court's Judgment, Alcala-Mendoza claims that "he is entitled to be resentenced in accordance with U.S.S.G. § 5G1.3(b)(1), specifically, to a term of 30 months, with an Amended Judgment being issued specifically complying with U.S.S.G. § 5G1.3 cmt. App. N.2(C)." (Dkt. No. 350 at 6.) In response to the ...