United States District Court, W.D. Texas, El Paso Division
TONY EDWARD CILLITTO, Reg. No. 06794-196, Petitioner,
WARDEN THOMAS BERGAMI, Respondent.
ORDER GRANTING RESPONDENTS MOTION FOR SUMMARY
JUDGMENT AND DENYING PETITIONER'S PETITION FOR A WRIT OF
C. GUADERRAMA UNITED STATES DISTRICT JUDGE
Edward Cillitto, a federal prisoner at the La Tuna Federal
Correctional Institution in Anthony, Texas,  seeks credit
toward his federal sentence imposed in United States v.
Cillitto, 4:13-cr-1429-JAS (D. Ariz.), through a
"Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241." Pet'r's Pet., ECF No. 1.
Cillitto claims Warden Thomas Bergami refuses to grant him
647 days' credit for time he spent in confinement before
his sentencing. Bergami maintains in a "Motion for
Summary Judgment" pursuant to Federal Rule of Civil
Procedure 56 that the Bureau of Prisons (BOP) properly
calculated Cillitto's sentence in accordance with the
applicable federal laws and agency policy. Mot. for Surnm.
J., ECF No. 11. After reviewing the record and for the
reasons discussed below, the court will grant Bergami's
motion and deny Cillitto's petition.
AND PROCEDURAL HISTORY
was arrested on September 7, 2007, for a violation of his
supervised release in Case Number 4:99-cr-00627-RCC (D.
Ariz.). Resp't's Proposed Undisputed Facts, ECF No.
11-1; Pet'r's Resp., ECF No. 14-1. At the time of his
arrest, Cillitto was also charged with possession with the
intent to distribute cocaine base in Case Number
4:08-cr-1415-RCC (D. Ariz.). Cillitto pleaded guilty to the
drug offense and was sentenced to forty-eight months'
imprisonment. He was also sentenced to a consecutive
twelve-month term of imprisonment for the violation of his
supervised release. He escaped on December 4, 2010.
was arrested for drug trafficking on July 15, 2013. He
pleaded guilty on October 20, 2014, pursuant to a plea
agreement, to an information charging him with conspiracy to
possess with the intent to distribute methamphetamine and
cocaine base in Case Number 4:13-cr-1429-JAS (D. Ariz.).
United States v. Cillitto, 4:13-cr-1429-JAS (D.
Ariz.), Minute Entry, Oct. 20, 2014, ECF No. 49. Under the
terms of the plea agreement, "[p]ursuant to Fed. R.
Crim. P., Rule (c)(1)(C) and 18 U.S.C. § 3553(a), the
government and the defendant agree[d] to a stipulated
sentence of 132 months imprisonment to be followed by a term
of supervised release of at least five (5) years."
Id., Plea Agreement, Oct. 20, 2014, ECF No. 50.
Notably, the plea agreement did not mention Case Numbers
4:99-cr-00627-RCC (D. Ariz.) or 4:08-cr-1415-RCC (D. Ariz.)
or credit for time served in confinement before his
objected "to the Pre Sentence [sic] Report
("PSR"), specifically paragraph 14, a two-level
enhancement for the possession of a dangerous weapon (a
firearm) pursuant to USSG §2D1.1(b)(1)." 7tf.,
Def.'sObj.toPSR, Mar.29, 2015, ECF No.64. The government
responded "[i]n light of the plea agreement, any
response is irrelevant for sentencing." Id.,
Gov't's Resp, 04/07/15, ECF No. 65. The sentencing
court apparently agreed with the government and, on April 23,
2015, sentenced Cillitto to 132 months' imprisonment
"with credit for time served." Id., J.
Crim. Case, Apr. 23, 2015, ECF No. 69. The Court remained
silent as to Cillitto serving this sentence concurrently with
any other sentences. The judgment did not mention Case
Numbers 4:99-cr-00627-RCC (D. Ariz.) or 4:08-cr-1415-RCC (D.
determined "[t]he time period from July 15, 2013,
through September 17, 2014, (430 days) was federal time
remaining to be served on [his] aggregated sixty (60) month
sentences" in Case Numbers 4:08-cr-1415-RCC (D. Ariz.)
and 4:99-cr-627-RCC (D. Ariz.). PetYs Pet., Ex. B (Request
for Administrative Remedy), ECF No. 1-3. It further
determined Petitioner's sentence in Case Number
4:13-cr-1429-JAS (D. Ariz.) "began April 23, 2015, and
[he] received presentence jail credit from September 18,
2014, (on the day after [his] first sentence ended) to April
22, 2015, (the date before [his] new sentence was imposed
(217 days)." Id. It subsequently gave Cillitto
credit for an additional 27 days toward his prior sentence,
which resulted in a release date for his prior sentence of
August 24, 2014. Mot. Summ. J., Ex. 1 (Decl. of Deborah
Colston), p. 5, ECF No. 11-3. Hence, the BOP gave Cillitto
jail credit from August 25, 2014 to April 22, 2015 (244 days)
toward his current sentence in Case Number 4:13-cr-1429-JAS
now claims he relied on the presentence investigation report
in going forward with his guilty plea in Case Number
4:13-cr-1429-JAS (D. Ariz.):
The pre-sentence report (PSR) reflected the time in custody
for the case as 647 days from July 15, 2013, the date of Mr.
Mr. Cillitto reviewed the PSR prior to sentencing, to include
the number of days of presentence incarceration and relied on
that information in going forward with the terms of the plea
agreement. The government did not object to the 647 days
being credited. At sentencing, the Court gave Mr. Cillitto
credit for time served to the date of sentencing, which was
April 23, 2015. (Sentencing Tr. 4/23/15 p. 7, 1. 16) The
total number of days intended and expected by the parties in
CR 13-1429 was clearly 647 days.
The escape charge was dismissed and it appeared no issues
regarding CR 08-1415 remained. However, the BOP has credited
the time from 7/15/13-9/17/14 exclusively to the sentence in
CR 08-1415. The BOP references the Sentence Computation
Manual, dated July 19, 1999, to support this action.
Specifically, BOP maintains that Program Statement 5880.28
prevents jail credit for a period of time which has already
been awarded to a prior sentence.
Id., at 4B5. Cillitto maintains "[t]he term of
imprisonment in CR 13-429 [sic] was to run concurrent to any
discharged [sic] term of imprisonment." Id. at
5. Cillitto asks the Court to "[i]ssue a writ of habeas
corpus ordering Bergami to apply 647 days credit to the
sentence calculation in CR 13-1429 and adjust good time
credits accordingly." Id. at 6.
maintains the BOP calculated Cillitto's sentence in
accordance with federal laws and agency policy. Mot. Summ. J.
7, ECF No. 11. Moreover, he claims it granted Cillitto all