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Cillitto v. Bergami

United States District Court, W.D. Texas, El Paso Division

November 7, 2019

TONY EDWARD CILLITTO, Reg. No. 06794-196, Petitioner,
v.
WARDEN THOMAS BERGAMI, Respondent.

          ORDER GRANTING RESPONDENTS MOTION FOR SUMMARY JUDGMENT AND DENYING PETITIONER'S PETITION FOR A WRIT OF HABEAS CORPUS

          DAVID C. GUADERRAMA UNITED STATES DISTRICT JUDGE

         Tony Edward Cillitto, a federal prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas, [1] 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.

         BACKGROUND AND PROCEDURAL HISTORY

         Cillitto 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.

         Cillitto 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 sentencing.

         Cillitto 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. Ariz.).

         The BOP 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 (D. Ariz.).

         Cillitto 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. Cillitto's arrest.
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.

         Bergami 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 ...


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