United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
T. Holloway, a former federal inmate proceeding pro se,
submitted a Motion for Concurrent Sentence Pursuant to 18
U.S.C. § 3584 ("Motion for Concurrent Sentence,
" ECF No. 67). By Order entered on July 1, 2016, the
Court directed the Government to respond to Holloway's
Motion for Concurrent Sentence within thirty days. (ECF No.
68, at 1.) By Order entered on April 3, 2017, the Court noted
that the Government had yet to respond, and directed the
Government to explain its lack of response and respond to the
July 1, 2016 Order within fourteen days. (ECF No. 69, at 1.)
April 6, 2017, the Government filed a Motion for Leave to
File Response to Defendant's Motion for a Concurrent
Sentence Out of Time ("Motion for Leave to File, "
ECF No. 70). Counsel attached the proposed Response (ECF No.
70-1) and three exhibits (ECF Nos. 70-3 through 70-5) . For
good cause shown, the Court will grant the Motion for Leave
to File (ECF No. 70) and direct the Clerk to file the
Response and exhibits (ECF Nos. 70-1 and 70-3 through 70-5)
as a separate docket entry in this matter. For the reasons
stated below, Holloway's Motion for a Concurrent Sentence
(ECF No. 67) will be denied as moot.
March 6, 2008, in the Circuit Court for the County of
Henrico, Virginia ("Circuit Court"), Holloway was
sentenced to three years of incarceration, with two years,
eleven months, and twenty days suspended, for a conviction
for possession of a Schedule I or Schedule I substance.
(Gov't's Resp. Attach. 3, at 1, ECF No. 70-3.) He was
also placed on supervised probation. (Id.)
7, 2008, a grand jury sitting in this this Court charged
Holloway with possession with intent to distribute five grams
or more of a mixture and substance containing detectable
amounts of cocaine base (Count One); possession of a firearm
in furtherance of a drug trafficking crime (Count Two); and
possession of a firearm by a felon (Count Three). (Indictment
1-2, ECF No. 1.) On July 10, 2008, Holloway pled guilty to
Counts One and Two. (Plea Agreement ¶ 1, ECF No. 23.) On
October 28, 2008, the Court entered judgment and sentenced
Holloway to a total of 13 0 months of incarceration. (J. 2,
ECF No. 30.) Specifically, the Court sentenced Holloway to 70
months of imprisonment on Count One, and 60 months of
imprisonment, to be served consecutively, on Count Two.
(Id.) The United States Court of Appeals for the
Fourth Circuit affirmed this Court's judgment with
respect to the denial of Holloway's motion to suppress.
United States v. Holloway, 367 F.App'x 431,
432-34 (4th Cir. 2010) .
March 18, 2009, the Circuit Court revoked Holloway's
probation and imposed the suspended sentence of two years,
eleven months, and twenty days. (Gov't's Resp.
Attach. 4, at 1, ECF No. 70-4.) On August 29, 2013, this
Court granted Holloway's Motion for Sentence Reduction
pursuant to 18 U.S.C. § 3582(c)(2) and reduced his
sentence to 120 months, consisting of 60 months for Count One
and 60 months, to be served consecutively, on Count Two. (ECF
No. 57, at 1.)
Motion for a Concurrent Sentence, Holloway requests that the
Court amend its judgment, pursuant to 18 U.S.C. § 3584,
to state that Holloway's federal sentence shall run
concurrently with his probation revocation sentence imposed
by the Circuit Court. (Mot. Concurrent Sentence 1-3.)
Holloway requests that the Court amend its judgment in this
manner so that he can ask the Bureau of Prisons for a nunc
pro tunc designation to a state facility to serve the
remainder of his federal sentence. (Id. at 3.)
3584 states, in relevant part:
If multiple terms of imprisonment are imposed on a defendant
at the same time, or if a term of imprisonment is imposed on
a defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or
consecutively, except that the terms may not run
consecutively for an attempt and for another offense that was
the sole objective of the attempt. Multiple terms of
imprisonment imposed at the same time run concurrently unless
the court orders or the statute mandates that the terms are
to run consecutively. Multiple terms of imprisonment imposed
at different times run consecutively unless the court orders
that the terms are to run concurrently.
18 U.S.C. § 3584(a). The Supreme Court has held that a
district court may exercise discretion with respect to
ordering whether a federal sentence should run concurrently
or consecutively to an anticipated state sentence that has
not yet been imposed. Setser v. United States, 566
U.S. 231, 236-37 (2012) (citations omitted).
reliance on § 3584, however, is misplaced. "Section
3584 is applicable at the time the Court first imposes a
sentence, not when a defendant is seeking correction of his
sentence." United States v. Silliman, No.
3:07-CR-97, 2010 WL 2584197, at *1 (W.D. Ky. June 23, 2010);
see Wilson v. United States, 969 F.Supp. 1054, 1057
(E.D. Mich. 1997) (noting that section 3584 "does not
provide [a] court with any authority to substantively alter a
Holloway could rely upon § 3584, his release from
federal prison moots his Motion for a Concurrent Sentence.
"The hallmark of a moot case or controversy is that the
relief sought can no longer be given or is no longer
needed." Incumaa v. Ozmint, 507 F.3d 281, 287
(4th Cir. 2007) (quoting Martin-Trigona v. Shiff,
702 F.2d 380, 386 (2d Cir. 1983)). Given Holloway's
release from federal custody, there is no period of federal
incarceration that the Court could direct be run concurrently
to his state sentence. Cf. United States v. Noyola,
254 F.App'x 317, 318 (5th Cir. 2007) (concluding that
because all pending state charges against defendant had been