Rios v. Wiley ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
1-4-2000
Rios v Wiley
Precedential or Non-Precedential:
Docket 99-3297
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000
Recommended Citation
"Rios v Wiley" (2000). 2000 Decisions. Paper 1.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/1
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed January 4, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-3297
FRANCISCO RIOS
v.
RON WILEY, Warden,
FPC-Allenwood
RON WILEY, Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 98-1507)
District Judge: Honorable William W. Caldwell
Argued November 1, 1999
BEFORE: GREENBERG, SCIRICA, and RENDELL,
Circuit Judges
(Filed: January 4, 2000)
David M. Barasch
United States Attorney
Kate L. Mershimer
Assistant United States Attorney
United States Attorney's Office
Middle District of Pennsylvania
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108-1754
Michael D. Tafelski (argued)
Federal Bureau of Prisons
2nd & Chestnut Streets
United States Customs House
7th Floor
Philadelphia, PA 19106
Attorneys for Appellant
Donald E. Cameron (argued)
Judith E. Stein
150 Nassau Street
Suite 1927
New York, NY 10038
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge
I. INTRODUCTION
This matter comes before this court on an appeal from an
order granting a petition for a writ of habeas corpus.
Petitioner Francisco Rios filed his petition under 28 U.S.C.
S 2241 against respondent Ron Wiley, the warden of the
Federal Prison Camp at Allenwood, Pennsylvania ("FPC-
Allenwood").1 The sole issue on appeal is whether the
_________________________________________________________________
1. Rios was incarcerated at FPC Allenwood at the time the court decided
this case. He originally filed the petition in the Northern District of
New
York, but because of his place of incarceration the court transferred the
petition to the Middle District of Pennsylvania.
2
district court erroneously determined that Rios was entitled
to credit on his federal sentence for a period of 22 months
that he was in federal detention pursuant to a writ of
habeas corpus ad prosequendum prior to the imposition of
his federal sentence for narcotics violations. We will affirm
the order of the district court granting Rios's habeas corpus
petition and thus allowing him the relief he seeks, but we
reach our result on different grounds than those on which
the district court relied.
II. FACTS and PROCEEDINGS
State authorities arrested Rios on or about August 6,
1991, in New York and charged him with possession of
cocaine. He was found guilty of the state charges and on
November 7, 1991, the state court sentenced him tofive to
ten years imprisonment. On November 6, 1991, a federal
grand jury in the Southern District of New York indicted
him for narcotics offenses unrelated to the state charges.2
On November 21, 1991, federal authorities, pursuant to a
writ of habeas corpus ad prosequendum, took custody of
Rios for one day. On March 20, 1992, the federal
authorities, pursuant to a second writ of habeas corpus ad
_________________________________________________________________
While the named respondent in this matter is Ron Wiley, the warden
at FPC-Allenwood, the parties refer throughout their submissions to the
appellant as the Bureau of Prisons because the appeal involves a
sentencing calculation matter. We will adopt that designation of the
appellant for ease of reference.
2. In the district court's second opinion in this case, it indicated that
the
charges were unrelated, see Rios v. Wiley, 34 F. Supp. 2d 265, 267 (M.D.
Pa. 1999), and the Bureau of Prisons has taken the same position. Rios
asserts, however, that they were related. We do not resolve that point on
this appeal. Moreover, there is conflicting evidence concerning the exact
date of Rios's arrest on the state charges. The Presentence Report ("PSR")
indicates that New York authorities arrested him on February 13, 1991,
but the declaration of Charles McIntyre, the inmate systems manager at
FPC-Allenwood, states the arrest date as August 6, 1991. The parties do
not explain the inconsistency, but it is not material to the disposition
of
the appeal. Finally, we note that while the court indicated that Rios was
indicted on November 6, 1991, the BOP indicates that the indictment
was one day earlier.
3
prosequendum, took custody of Rios again for a period
which proved to be extended and included the 22 months
at issue.
At a trial on the federal charges, the jury found Rios
guilty on June 17, 1992, of conspiracy to distribute heroin
and cocaine and distribution of and possession of heroin
with intent to distribute. The court scheduled sentencing
for September 15, 1992, but it was delayed until January
31, 1994. Prior to the sentencing hearing the government
sent a letter dated January 31, 1994, to the court
discussing the application of U.S.S.G. S 5G1.3(c), p.s.3 to
Rios's case. We will refer to that provision simply as
"section 5G1.3(c)." In its opening remarks at the sentencing
hearing, the court acknowledged receipt of the letter and
stated that its contents were "duly noted."
In the colloquy between counsel and the court during the
sentencing hearing, Rios's attorney asked the court to
consider, among other things, the fact that Rios had been
in federal custody pursuant to the second writ since March
1992. Specifically, he asked the court to "sentence Rios to
the minimum guideline applicable which is 84 months, and
to have that run concurrent with the time he is serving on
the state case." When the assistant United States attorney
stated that the "state conduct was not counted in
calculating the offense level in this case," Rios's attorney
interjected that he did not mean to imply that it had been.
Immediately thereafter, the court asked the government
attorney whether Rios, if given credit for time served, would
receive credit back to March 1992, the time of the execution
of the second writ by the federal authorities. The
government attorney answered that crediting was a
technical matter, and that he could not respond to the
question at that time. The court replied that the answer
was not material and it proceeded to sentence Rios.
_________________________________________________________________
3. "Section 5G1.3(c) is labeled a `Policy Statement'; we note that `[t]he
policy statements and commentary contained in the guidelines are
binding on the federal courts.' " United States v. Brannan, 74 F.3d 448,
454 n.7 (3d Cir. 1996) (quoting United States v. Holifield, 53 F.3d 11, 13
n.2 (3d Cir. 1995)).
4
The sentencing court sentenced Rios "to a term of 90
months on both counts to run concurrently with each other
and concurrently with the state sentence and that you
receive credit for time served." The court, however, did not
indicate what period of "time served" should be applied to
the federal sentence. Moreover, the judgment entered
merely recited: "Defendant to receive credit for time served."
The government did not seek clarification or modification of
the sentence, nor did it appeal from it.
The federal authorities returned Rios to New York state
custody on February 18, 1994. Thus, it is undisputed that
Rios remained in the control of the federal authorities from
the time of the execution of the second writ on March 20,
1992, until February 18, 1994. It is also undisputed that
he previously had been sentenced in state court on
November 7, 1991, and that he was serving his state
sentence while in the federal custody pursuant to the
second writ.
Shortly after the federal authorities returned Rios to state
custody, the Bureau of Prisons ("BOP") designated the New
York State Department of Correctional Services for service
of his federal sentence. It made this designation nunc pro
tunc as of January 31, 1994, the date of the federal
sentencing. By specifying the federal sentence to have
commenced on January 31, 1994, the BOP did not credit
Rios for the 22-month time period he spent under federal
control pursuant to the second writ before January 31,
1994, despite the sentencing court's statement at the
sentencing and its direction in the judgment of conviction
and sentence that credit be awarded for "time served."
New York released Rios on parole from his state sentence
on August 2, 1996, and the BOP received Rios for service
of the remainder of his federal sentence. Upon his transfer
to federal custody, Rios learned that the BOP had not
credited the time between March 20, 1992, the date he was
detained by federal authorities by virtue of the second writ,
and January 31, 1994, the date of his federal sentencing.
Rios filed an administrative remedy request at his place of
incarceration at the time, the Federal Corrections
Institution at Ray Brook, New York ("FCI Ray Brook"),
5
challenging the BOP's failure to credit that 22-month period
against his federal sentence.
Warden W.S. Keller of FCI Ray Brook denied Rios's
request on November 25, 1996. Rios exhausted his
administrative remedies and subsequently filed his habeas
corpus petition. The petition reiterated Rios's challenge of
the BOP's refusal to credit his federal sentence for time
served while in federal detention pursuant to the second
writ. At the time Rios filed his habeas corpus petition,
applying the BOP's crediting calculations, his projected
release date was August 12, 2000.4 Rios contended that his
release date should have been September 30, 1998.
The district court granted Rios's habeas corpus petition
in a memorandum and order entered December 9, 1998.
See Rios v. Wiley, 29 F. Supp. 2d 232 (M.D. Pa. 1998) ("Rios
I"). While the district court believed that the literal language
of 18 U.S.C. S 3585(b), which we will call simply "section
3585(b)," appeared to preclude granting the credit Rios
sought, it nevertheless concluded that he was entitled to
credit on his federal sentence for the 22-month period that
he remained in federal control under the second writ to
"effectuate[ ] the intent of the federal sentencing court." Rios
I, 29 F. Supp. 2d at 236. The district court relied on the
reasoning of the Court of Appeals for the First Circuit in
United States v. Benefield, 942 F.2d 60 (1st Cir. 1991), in
support of its result. See Rios I, 29 F. Supp. 2d at 234.
Consequently, the court ordered the BOP to recalculate
Rios's release date, and stated that if the new calculation
entitled him to immediate release, he was to be released.
The BOP subsequently filed a motion for reconsideration,
which the district court denied by memorandum and order
entered February 3, 1999. See Rios v. Wiley, 34 F. Supp. 2d
265 (M.D. Pa. 1999) ("Rios II"). Upon reconsideration, the
court retreated from its prior position that Benefield
_________________________________________________________________
4. We note that the district court originally stated that the projected
release date was February 12, 2000, see Rios v. Wiley, 29 F. Supp. 2d
232, 233 (M.D. Pa. 1998), but in a second opinion it issued on the BOP's
motion for reconsideration, it indicated the date was August 12, 2000.
See Rios v. Wiley, 34 F. Supp. 2d at 266. We are satisfied that the second
date is correct. See app. at 75.
6
provided the applicable rule of law in this case. Instead, the
district court granted the petition based on the reasoning of
the Court of Appeals for the Tenth Circuit in Brown v.
Perrill ("Brown II"), 28 F.3d 1073 (10th Cir. 1994),
supplementing and clarifying Brown v. Perrill ("Brown I"),
21 F.3d 1008 (10th Cir. 1994). In Brown, a case that
involved facts that the district court regarded as"materially
identical" to those here, see Rios II, 34 F. Supp. 2d at 270,
the court held that the lengthy period the prisoner spent in
custody on the writ transmuted the period into federal
custody. See Brown II, 28 F.3d at 1075. Because it was
undisputed that if the 22-month period was applied on the
federal sentence, Rios was entitled to immediate release,
the court ordered his release from federal custody.
The BOP filed a timely notice of appeal. While the notice
of appeal recites that it is from the February 3, 1999 order,
effectively the appeal is from the order granting the habeas
corpus petition as well and we are deciding the case on that
basis.
III. JURISDICTION and STANDARD OF REVIEW
The district court exercised jurisdiction over this matter
pursuant to 28 U.S.C. SS 1331 and 2241. We have
jurisdiction over this appeal pursuant to 28 U.S.C.SS 1291
and 2253(a), as the BOP filed a timely notice of appeal from
the final judgment of the district court entered February 3,
1999.5
In a federal habeas corpus proceeding, we exercise
plenary review over the district court's legal conclusions
and apply a clearly erroneous standard to the court's
factual findings. See Lambert v. Blackwell, 134 F.3d 506,
512 (3d Cir. 1997) (citing Caswell v. Ryan, 953 F.2d 853,
857 (3d Cir. 1992) (citing Bond v. Fulcomer, 864 F.2d 306,
309 (3d Cir. 1989))); see also United States v. Dorsey, 166
F.3d 558, 560 (3d Cir. 1999) ("Our review of the district
_________________________________________________________________
5. Because the government has taken the appeal in this proceeding, a
certificate of appealability is not required as a prerequisite to our
exercise of appellate jurisdiction. See Fed. R. App. P. 22; Lambert v.
Blackwell, 134 F.3d 506, 512 n.15 (3d Cir. 1997).
7
court's interpretation of S 3585(b) and the[sentencing]
guidelines is plenary."); Barden v. Keohane, 921 F.2d 476,
479 (3d Cir. 1992) (stating that court of appeals exercises
plenary review over district court's legal conclusions which
formed the basis of the lower court's denial of the habeas
corpus petition). In this case, however, the issues are
essentially legal in nature and thus we exercise plenary
review.
IV. DISCUSSION
A.
The BOP argues that the district court erred in granting
Rios's habeas corpus petition, as it failed to recognize that
the general principles governing the computation of a
federal sentence prohibit an inmate from receiving credit on
a federal sentence for pre-sentence detention where the
same time was credited against a previously imposed state
sentence. Br. at 13-17. In particular, the BOP points to
section 3585(b) as the governing statute in this appeal, and
contends that its plain language states that a defendant
may receive credit for prior custody "that has not been
credited against another sentence." Id. at 17.
This appeal requires us to explore once again the
interplay between the roles of the sentencing court in
determining the length of a sentence of incarceration to be
served and the BOP in calculating when the sentence
imposed will have been satisfied. See, e.g. , Dorsey, 166
F.3d at 561-63 (interpreting sentencing court's power to
award concurrent sentence pursuant to U.S.S.G. S 5G1.3(b)
and Application Note 2 as not conflicting with BOP's
authority under section 3585(b) to award prior custody
credit). The Sentencing Reform Act of 1984 (the"Act"), 18
U.S.C. S 3551 et seq., 28 U.S.C. S 991-998, along with the
Sentencing Guidelines ("U.S.S.G." or "guidelines")
promulgated pursuant to the Act, contain several provisions
relevant to our resolution of the issue presented by this
appeal.
We will begin our analysis by setting forth the relevant
statutory provisions and guidelines governing the
8
sentencing court's determination of the length of the
sentence to be imposed where the defendant is subject to
an undischarged term of imprisonment. 18 U.S.C. S 3584
states in pertinent part:
Multiple sentences of imprisonment.
(a) Imposition of concurrent or consecutive terms.--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.
(b) Factors to be considered in imposing concurren t or
consecutive terms.--The court, in determining whether
the terms imposed are to be ordered to run
concurrently or consecutively, shall consider, as to
each offense for which a term of imprisonment is being
imposed, the factors set forth in [18 U.S.C.S ] 3553(a).
Id. While section 3584 enables the sentencing court to
award a concurrent sentence, that discretion is subject to
the applicable guidelines section, namely U.S.S.G.S 5G1.3.
See Dorsey, 166 F.3d at 561-62; United States v. Holifield,
53 F.3d 11, 13 (3d Cir. 1995); see also 28 U.S.C.
S 994(a)(1)(D) (imposing statutory duty upon Sentencing
Commission to include in guidelines "a determination
whether multiple sentences to terms of imprisonment
should be ordered to run concurrently or consecutively").
The version of U.S.S.G. S 5G1.3 in effect at the time of
Rios's sentencing on January 31, 1994, contains three
subsections. See U.S.S.G. S 5G1.3 (Nov. 1993).6 Subsection
_________________________________________________________________
6. We will apply the version of section 5G1.3(c) and Application Note 3 in
effect on the date of Rios's sentencing. See U.S.S.G. S 1B1.11; Brannan,
9
(a) of the guideline describes circumstances in which
imposition of a consecutive sentence is mandatory:
If the instant offense was committed while the
defendant was serving a term of imprisonment
(including work release, furlough, or escape status) or
after sentencing for, but before commencing service of,
such term of imprisonment, the sentence for the
instant offense shall be imposed to run consecutively
to the undischarged term of imprisonment.
U.S.S.G. S 5G1.3(a). Subsection (b) provides the
circumstances in which a concurrent sentence is
mandatory:
If subsection (a) does not apply, and the undischarged
term of imprisonment resulted from offense(s) that
have been fully taken into account in the
determination of the offense level for the instant
offense, the sentence for the instant offense shall be
imposed to run concurrently to the undischarged term
of imprisonment.
U.S.S.G. S 5G1.3(b). For cases in which neither (a) nor (b)
applies, the Sentencing Commission has issued section
5G1.3(c), which is a policy statement to guide the courts:
(Policy Statement) In any other case, the sentence for
the instant offense shall be imposed to run
consecutively to the prior undischarged term of
imprisonment to the extent necessary to achieve a
reasonable incremental punishment for the instant
offense.
See also United States v. Brannan, 74 F.3d 448, 454 n.7
(3d Cir. 1996).
The Act also addressed the related but distinct issue of
the award of credit on a federal sentence for pre-sentence
_________________________________________________________________
74 F.3d at 450 n.2 (noting that court should apply guideline provision in
effect at the time of sentencing unless the court determines that to do so
would violate the Ex Post Facto Clause of the United States Constitution
in that it would yield a harsher result than that in effect at the time of
the offense).
10
incarceration. Pursuant to the Act, Congress rewrote 18
U.S.C. S 3568 ("section 3568"), the prior statute governing
the award of credit for pre-federal sentence incarceration,
and recodified it as section 3585(b). Section 3585(b)
(emphasis added) provides in relevant part:
Calculation of a term of imprisonment
(b) Credit for prior custody.--A defendant shall be
given credit toward the service of a term of
imprisonment for any time he has spent in official
detention prior to the date the sentence commences--
(1) as a result of the offense for which the sente nce
was imposed; or
(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
As the district court and the parties have framed the
legal issue presented in this case, the controversy concerns
the correct interpretation of the last clause of section
3585(b) and its application to the 22-month period of Rios's
detention by federal authorities pursuant to the second
writ. We do not view the issue that narrowly. Rather, in
exercising plenary review of the issues of law Rios's petition
raised under 28 U.S.C. S 2241, we find that the appropriate
starting point is to ascertain the meaning that we should
ascribe to the sentencing court's directives that the federal
and state sentences be served concurrently and that Rios
be given credit for time served. Indeed, it is apparent to us
that the district court's disposition of the matter as though
governed by section 3585(b) overlooked the possibility that
the sentencing court's directives related to its power to
impose a sentence in accordance with the applicable
guidelines provision, section 5G1.3(c) that we quoted above.7
_________________________________________________________________
7. There can be no dispute that sections 5G1.3(a) and (b) do not apply
to this case. We repeat that section 5G1.3(a) sets forth the situations in
which a consecutive sentence is mandatory, and the BOP does not
contend on appeal that that provision applies. Moreover, the government
and Rios's attorney at the time of the sentencing believed that section
11
We reiterate that section 5G1.3(c) provides that the
federal sentence should "be imposed to run consecutively to
the prior undischarged term of imprisonment to the extent
necessary to achieve a reasonable incremental punishment
for the crime." Application Note 3 sets forth a methodology
for the court to follow in determining what amounts to a
"reasonable incremental punishment" for the crime. It
provides that:
To the extent practicable, the court should consider a
reasonable incremental penalty to be a sentence for the
instant offense that results in a combined sentence of
imprisonment that approximates the total punishment
that would have been imposed under S 5G1.2
(Sentencing on Multiple Counts of Conviction) had all
of the offenses been federal offenses for which
sentences were being imposed at the same time.
Section 5G1.3(c) comment. (n.3). This methodology"is
meant to assist the court in determining the appropriate
sentence (e.g., the appropriate point within the applicable
guideline range, whether to order the sentence to run
concurrently or consecutively to the undischarged term of
imprisonment, or whether a departure is warranted)." Id.
comment. (n.3). Once the court applies the methodology set
forth in Application Note 3 and approaches the sentencing
as if sentences on both offenses were being imposed at
once, the court must determine what incremental
punishment is appropriate in view of the sentence that
would have resulted under U.S.S.G. S 5G1.2. See Brannan,
74 F.3d at 454-55.8
_________________________________________________________________
5G1.3(b) did not apply, as the conduct involved in the state charge was
not considered "relevant conduct" for purposes of determining Rios's
federal offense level. App. at 46-47; see United States v. Oser, 107 F.3d
1080, 1085 (3d Cir. 1997). Thus, section 5G1.3(c) provides the
applicable guidelines provision in the circumstances here. Id. at 1086
("Inasmuch as we conclude that subsection (b) does not apply . . . it
follows that subsection (c) is the relevant guideline provision for
determining whether [the defendant's] sentence should be imposed
concurrently or consecutively.").
8. We understand section 5G1.3(c) to permit a district court to exercise
its discretion and award a concurrent sentence in a manner that would
12
Upon inspection of the sentencing transcript as well as
the judgment the sentencing court entered on January 31,
1994, we are convinced that the sentencing court applied
section 5G1.3(c) in its form as of the date of Rios's
sentencing to impose a reduced federal sentence that, in its
view, achieved "a reasonable incremental punishment" for
the federal narcotics offenses, given the circumstance that
Rios already had served 22 months on an unrelated state
conviction at a time that he was in federal custody. See
section 5G1.3(c). In other words, we understand the
sentencing court to have exercised its discretion to impose
a federal sentence under section 5G1.3(c) which took into
consideration the 22 months that Rios had spent in federal
custody as of the date of the federal sentencing proceeding,
January 31, 1994, so that the actual sentence imposed was
_________________________________________________________________
ensure that the federal sentence, while imposed at a later time, took into
account prior time served on an unrelated state sentence. See Brannan,
74 F.3d at 455 (stating that district court could have departed from
guidelines range and awarded sentence that took into account prior time
served on state sentence); United States v. Hill , 59 F.3d 500, 503 (4th
Cir. 1995) (same); see also United States v. Goudy, 78 F.3d 309, 314 n.4
(7th Cir. 1996) (citing U.S.S.G. App. C, amend. 535). In Brannan, we
explained the mechanics of applying the methodology set forth in
Application Note 3 to achieve the result reached in this case. First, the
court must determine hypothetically what the sentence for the federal
and state offenses would have been if sentenced together under U.S.S.G.
S 5G1.2. The court could conclude then that no incremental penalty was
warranted and therefore a concurrent federal sentence was called for
under the circumstances. To achieve that result, the court could depart
from the guidelines range by taking into consideration the time served
on the prior state sentence and subtracting that amount from the overall
federal sentence imposed. Thus, the court would sentence the offender
with a lower term of imprisonment to run concurrently with the
remaining undischarged term, and consecutively thereafter (if the federal
sentence imposed was longer than the state sentence would be even
after the pre-federal sentence incarceration was considered). See
Brannan, 74 F.3d at 455; Holifield, 50 F.3d at 14 n.5 ("Occasionally a
downward departure may be necessary to make this provision work
properly. For example, where the defendant has been in state custody for
a long time, a downward departure may be the only feasible way to
achieve an appropriate total punishment, assuming the court wishes to
employ a departure to achieve the desired objective."); Hill, 59 F.3d at
503.
13
90 months, less 22 months, or 68 months total. The
sentencing court also indicated that the sentence imposed
was to run concurrently with the state sentence, with the
balance, if any, of the federal sentence to be served
thereafter. From that initial conclusion, we hold that the
BOP was required to effectuate the sentence imposed by the
sentencing court, and consequently that Rios is entitled to
relief under 28 U.S.C. S 2241 so that his sentence reflects
an adjustment for the 22-month period in issue.
A review of the result produced in this case by the use of
the methodology set forth in Application Note 3 supports
our conclusion that the sentencing court applied section
5G1.3(c) in imposing the period of imprisonment on the
federal conviction. First, the court would have considered
the guideline range for the federal offenses and the
guideline range that would have resulted if the sentences
for the state and federal offenses were being imposed at the
same time in the same federal sentencing proceeding. Here,
as the government's January 31, 1994 letter to the
sentencing court indicates, Rios's actual offense level was
18, and the combined offense level would have been 18 had
the state conduct been considered part of the federal
offense conduct. Thus, because of the small quantity of
narcotics involved in the state offense, consideration of that
quantity in the hypothetical federal sentencing under
U.S.S.G. S 5G1.2 would not have changed the offense level.
App. at 79; see also U.S.S.G. SS 5G1.2; 2D1.1(a)(3), (c)(13);
3D1.1; 3D1.2; 3D1.3; 3D1.4. Accordingly, the sentencing
court was faced with a rather anomalous situation because
if the hypothetical sentencing had been the real sentencing,
the guideline range, 84 to 105 months, insofar as it was
dependent on the quantity of narcotics involved, would
have been the same as the actual range used by the
sentencing court. See U.S.S.G. Sentencing Table, Level 22,
Category VI; app. at 53.9
Therefore, if the sentences on the federal and state
offenses had been imposed at the same time and in the
same proceeding, absent a departure Rios would have been
subject to a combined sentence within the same guidelines
_________________________________________________________________
9. By reason of adjustments Rios's total offense level was 22.
14
range as was actually applicable at the sentencing. In that
event, if punishment for the state and federal offenses had
been imposed as one sentence in the same federal
sentencing proceeding, Rios could have received the same
period of incarceration, and obviously that single sentence
would have commenced as of the date of sentencing (or at
least as of the date that the BOP transported Rios to a
federal institution to commence service of his sentence).
In other words, if a single sentence for the two offenses
had been imposed at the same time and in the same federal
sentencing proceeding, there would have been no need to
consider whether to award "credit," as the sentencing court
used that term, because Rios would not have been serving
an undischarged term of imprisonment as of the date of the
federal sentencing proceeding. Inasmuch as Application
Note 3 specifically states that the methodology is"meant to
assist the court in determining the appropriate sentence,"
from a review of all the circumstances of the case we have
reached the conclusion that the sentencing court viewed
Rios's particular history as requiring an adjustment of the
federal sentence to account for the disparity caused by the
timing of the imposition of two separate sentences. See
Witte v. United States, 515 U.S. 389, 405, 115 S. Ct. 2199,
2208-09 (1995) ("[Section] 5G1.3 operates to mitigate the
possibility that the fortuity of two separate prosecutions will
grossly increase a defendant's sentence."); Dorsey, 166 F.3d
at 562 (" `In general, S 5G1.3 is intended to result in a
federal sentence that most nearly approximates the
sentence that would have been imposed had all the
sentences been imposed at the same time.' ") (quoting
United States v. Kiefer, 20 F.3d 874, 875-76 (8th Cir. 1994))
(quoting section 5G1.3, comment. (backg'd.)); Holifield, 50
F.3d at 15 ("It is important to note the methodology of
S 5G1.3 vests discretion in the trial judge. .. . [A] downward
departure may be desirable when the increase is simply
because of a delay in the defendant's trial or sentencing.").
We believe that the sentencing court intended to correct
the disparity that resulted from the happenstance of the
dates of the federal and state sentencing proceedings by
sentencing Rios to 90 months, less 22 months, to reach an
adjusted sentence of 68 months, which would then be
15
served concurrently with the remainder of the state
sentence. Indeed, it appears to us that the sentencing court
expressed its intention to depart from the guideline range,
84 to 105 months, and award the 22-month reduction in
the federal sentence by indicating that Rios was to receive
"credit for time served."
We note that the colloquy between the court and counsel
at sentencing confirms our understanding of the sentencing
court's intention in using the words "credit for time served"
in conjunction with the statement of the term of
imprisonment as "90 months." Specifically, Rios's attorney
pointed out that he had "suffered to a tremendous degree"
by virtue of the time he already had spent incarcerated and
asked the court to "consider that in determining his
sentence." App. at 44-45. Almost immediately after these
statements, the court asked the government about the time
that Rios spent in pre-sentence detention. The following
exchange occurred:
THE COURT: So that if Mr. Rios is given credit for time
served he would get credit from March `92 to date?
MR. CLEVELAND: That is a technical matter that I may
not be able to offer guidance on, as to how the
crediting is done. I can make an inquiry if it would be
helpful.
THE COURT: It won't be material. I just thought--
App. at 47. At this point, the court pronounced its sentence
of 90 months on both federal counts to run concurrently
with each other and concurrently with the state sentence,
and ordered that Rios receive "credit for time served." App.
at 47-48.
The juxtaposition of the actual words used in
pronouncing the sentence and the discussion between the
attorneys on the one hand and the court on the other
demonstrates that the sentencing court was cognizant of
the time Rios had spent in pre-sentence incarceration, and
further that Rios sought consideration for that time from
the court in its determination of the sentence to be
imposed. Thus, the sentencing court had before it sufficient
information upon which it could have concluded that
16
section 5G1.3(c) applied and permitted it to impose the
sentence that it did.
Moreover, inasmuch as the sentencing court "duly noted"
the contents of the government's January 31, 1994 letter
during the sentencing hearing, app. at 43, it cannot be
disputed that the court was aware of the applicability of
section 5G1.3(c). Indeed, the government's letter contained
its calculation of the combined offense level for the total
amount of narcotics involved in the state and federal
offenses, which is a significant aspect of the calculation
required by the methodology prescribed in Application Note
3 to section 5G1.3(c). See section 5G1.3(c) comment. (n.3)
(directing the court to calculate hypothetical sentence as if
it were sentencing under U.S.S.G. S 5G1.2; section 5G1.2
then directs court to calculate combined sentence under
Chapter 3, Part D and Part C of Chapter 5).
We reach our conclusion concerning the meaning of the
sentencing court's words used to describe the components
of its sentence despite the fact that it did not cite expressly
section 5G1.3(c) or Application Note 3 at the sentencing
hearing. After all, the Court of Appeals for the Second
Circuit has held that a district court need not refer
explicitly to section 5G1.3(c) in sentencing a defendant,
provided that the circumstances indicate that the court
considered "the basic principle that a consecutive sentence
should be imposed to the extent that it will result in a
reasonable incremental penalty." See United States v.
Margiotti, 85 F.3d 100, 105 (2d Cir. 1996) ("Section
5G1.3(c) simply does not require the use of any particular
verbal formula or incantation.") (citing United States v.
McCormick, 58 F.3d 874, 878 (2d Cir. 1995)); see also
McCormick, 58 F.3d at 878 (affirming sentence where
district court did not perform calculation under section
5G1.3(c) on the record, but computation was before the
court in the parties' written submissions); United States v.
Lagatta, 50 F.3d 125, 128 (2d Cir. 1995) ("[T]he
commentary [does not] require that the district court
expressly demonstrate that it engaged in the multi-count
analysis."). Without addressing whether the sentencing
court should have expressed its intentions differently, it is
apparent that the sentencing court used the language it
17
did, "concurrently" and "credit for time served," to indicate
its exercise of discretion under section 5G1.3(c) and
Application Note 3.10
As the Court of Appeals for the First Circuit observed in
similar circumstances,
District judges normally deliver their decisions on
sentencing from the bench, just after, and sometimes
in the course of, the presentation of numerous
arguments and even evidence as to the permissible
range and proper sentence. These often spontaneous
remarks are addressed primarily to the case at hand
and are unlikely to be a perfect or complete statement
of all of the surrounding law. What the district judge
said here was entirely adequate as directed to the
present case.
United States v. Saldana, 109 F.3d 100, 104 (1st Cir.
1997). Neither precedent nor logic dictates that Rios serve
an additional 22 months on his federal sentence simply
because the court did not state explicitly its reliance on
section 5G1.3(c) and Application Note 3, given the overall
context in which the court imposed the sentence and the
information before the court at that time.11
In reaching our conclusion, we have considered but
_________________________________________________________________
10. Again, we note that the government did not appeal from the
sentence, nor did it seek its reconsideration or clarification.
11. We held in Holifield that the district court must calculate the
reasonable incremental punishment according to the methodology in
Application Note 3 to section 5G1.3(c), but that the imposition of that
penalty is within the court's discretion. See Holifield, 50 F.3d at 16.
If,
however, the district court imposes a different penalty or employs a
different method of calculating the penalty, it must indicate its reasons
for not utilizing the methodology. Id. Our ruling in this case in no way
is inconsistent with Holifield, as we are not confronted with a situation
where we are considering on direct appeal a contention that the district
court departed from section 5G1.3(c) and Application Note 3 without
stating its reasons for doing so. Instead, our reading of the sentencing
court's opinion is that it applied Application Note 3 to arrive at what it
believed to be a reasonable incremental punishment for the federal
offenses, without specifically citing section 5G1.3(c) or Application Note
3 in rendering its sentence.
18
rejected the BOP's arguments on this point. It contends
first that the sentencing court's reference to the award of
"credit for time served" should be considered as nothing
more than a direction or non-binding recommendation to
the BOP to award pre-sentence credit that it deemed
appropriate. Br. at 22-23; app. at 48, 51; see United States
v. Pineyro, 112 F.3d 43, 46 (2d Cir. 1997) (order appealed
from was only a non-binding recommendation that BOP not
credit prisoner with time he spent in state custody, but
recommendation was not contained in district court's
judgment of conviction and sentence). Alternatively, the
BOP asserts that the portion of the judgment directing that
Rios receive credit for time served should be considered
"surplusage and ineffective" because it usurps the authority
granted to the BOP to determine pre-sentence credit. Reply
Br. at 7 n.2.
As to the first contention, we believe that we must view
the sentencing court's language in the context of the overall
proceeding. Given the fact that the government raised the
concept of a concurrent sentence in the January 31, 1994
letter, and that Rios's attorney at the sentencing hearing
did so as well, the court's reference to "credit for time
served," while ambiguous, was not, as the government
suggests, merely a non-binding direction or
recommendation to the BOP to award credit under section
3585(b) that the BOP deemed appropriate. We recognize
that the term "credit" is used in Chapter 227 of Title 18 as
a "term of art" to describe a potential benefit allowed a
defendant by the BOP in its role as the agency charged with
determining when the federal sentence imposed by the
sentencing court is satisfied. See Dorsey, 166 F.3d at 564-
65 (Stapleton, J., concurring). In this case, however, it
appears that the sentencing court simply used that term of
art slightly imprecisely, which, as the circumstances in
Dorsey reveal, cannot be considered an unprecedented
occurrence. See id. (Stapleton, J., concurring) ("I write
separately to note that much of the conflict which the
government perceives between S 3585(b) and Application
Note 2 to U.S.S.G. S 5G1.3(b) is attributable to its use of the
word "credit" to refer to two distinct benefits that a
convicted defendant may receive.").
19
It cannot be argued successfully that the use of the
phrase "credit for time served" by the sentencing judge only
can be interpreted to mean that the court directed the BOP
to do what it is statutorily required to do, nor can it be
viewed in this context as a non-binding recommendation.
This is especially so in view of the fact that under the plain
language of section 3585(b), which we will explore in
greater detail below in Part B of this section, the BOP would
not be required to award Rios with credit on his federal
sentence for the 22-month period at issue. In these
circumstances, if we adopted the BOP's interpretation, the
sentencing court's direction or non-binding
recommendation would have been of little significance or
more likely would have been totally meaningless.
We find equally without merit the BOP's alternative
argument that we should disregard the sentencing court's
provision for "credit for time served" as mere"surplusage
and ineffective." Reply Br. at 7 n.2; app. at 51. The BOP
premises its assertion in this regard on its belief that the
sentencing court's use of that phrase was an attempt to
award sentencing credit under section 3585(b) in violation
of the Supreme Court's holding in United States v. Wilson,
503 U.S. 329, 112 S. Ct. 1351 (1992). There the Supreme
Court held that the Attorney General (by way of delegation
to the BOP) rather than the sentencing court has the
authority to award credit to a federal prisoner for time
served before federal sentencing pursuant to section
3585(b). See id. at 334-35, 112 S.Ct. at 1354-55.
The problem with the BOP's interpretation, however, is
that it does not account for our alternative interpretation of
the district court's imposition of a 90-month sentence in
conjunction with its use of the phrase "credit for time
served." As we explained above, the use of the two phrases
in combination expresses the sentencing court's intention
to impose an adjusted federal sentence under section
5G1.3(c) that was to be served concurrently with the
remainder of the unexpired state sentence. As is evident
from our prior discussion, we find that the sentencing court
interpreted section 5G1.3(c) and Application Note 3 as
permitting it to impose such a sentence, and that the
language it used effectuated the court's intent in that
20
regard. Thus, because the BOP's argument hinges on its
interpretation of the language as an award of credit under
section 3585(b), rather than an application of section
5G1.3(c) and Application Note 3, we reject its argument
that the credit for time served language is "surplusage and
ineffective."
Moreover, the BOP's argument fails in light of our opinion
in Dorsey which recognized that neither the enactment of
section 3585(b) nor the Supreme Court's ruling in Wilson
limited the sentencing court's authority to apply section
5G1.3 and impose a concurrent sentence to the extent
appropriate. See Dorsey, 166 F.3d at 561 (noting that
Wilson did not apply because "it did not deal with the
situation of a federal court exercising its discretion to
impose a concurrent sentence and how to make that
sentence truly concurrent to a sentence for a related
offense, the subject of application note 2 [to U.S.S.G.
S 5G1.3(b)]"); see also Kiefer, 20 F.3d at 876 ("[W]e find
nothing in Wilson suggesting that the Attorney General's
authority under S 3585(b) limits a sentencing court's power
to apply S 5G1.3 of the Guidelines.").
While Dorsey involved a challenge to the validity of
Application Note 2 and section 5G1.3(b), the same rationale
applies to the court's exercise of discretion to impose a
concurrent sentence under section 5G1.3(c) and Application
Note 3. To be sure, an application of section 5G1.3(b) or (c)
and the commentary by the sentencing court, and the
award of sentencing credit by the BOP under section
3585(b), may result in the same benefit to the defendant.
Nevertheless, that the same outcome may be obtained
either way does not alter the fact that the two benefits
bestowed are distinct, and the Supreme Court's opinion in
Wilson only meant to refer to the award of sentencing credit
under section 3585(b) when it determined that the power to
award that credit was entrusted exclusively to the BOP. See
Dorsey, 166 F.3d at 564-65 (Stapleton, J., concurring) ("We
agree with the Eighth and Ninth Circuits Courts of Appeal
that the Supreme Court in Wilson was referring to the latter
form of benefit [an award of sentencing credit under section
3585(b)] when it held that only the [BOP] is authorized . . .
to `give credit' against a previously imposed sentence.").
21
We therefore reject the BOP's argument that we should
view the "credit for time served" portion of the judgment as
"surplusage and ineffective" because the argument rests on
the faulty premise that the sentencing court intended to
award credit under section 3585(b). Because we have
determined that the language "credit for time served"
demonstrates the sentencing court's intention to fashion an
appropriate sentence under section 5G1.3(c) and
Application Note 3 by considering the 22 months served as
part of the federal sentence, which we consider distinct
from credit under section 3585(b), we conclude that the
BOP's position is incorrect. See United States v. Drake, 49
F.3d 1438, 1440 (9th Cir. 1995) ("As the Court in Wilson
explained, `[a]fter a District Court sentences a federal
offender, the Attorney General, through the Bureau of
Prisons, has the responsibility for administering the
sentence.' . . . Such language presumes that the district
court will first sentence the offender--applying the relevant
Sentencing Guidelines--before credit determinations shall
be made by the Bureau of Prisons.") (citation omitted).
We hold that the BOP's failure to implement the sentence
imposed by the sentencing court mandates habeas corpus
relief under section 2241. See United States v. Williams,
158 F.3d 736, 742 (3d Cir. 1998) (finding without merit
federal defendant's motion pursuant to 28 U.S.C.S 2255
based upon his belief that the BOP would not honor district
court's sentencing order and stating that "in the unlikely
circumstance that the [BOP] does not honor the district
court's intention, [petitioner] will be free to seek relief under
28 U.S.C. S 2241"); see also Gomori v. Arnold, 533 F.2d
871, 874-75 (3d Cir. 1976) (holding that where prisoner
seeking federal habeas corpus relief challenges effect of
events "subsequent" to his sentence, habeas corpus remedy
is appropriate rather than motion pursuant to 28 U.S.C.
S 2255). Although our analysis of the legal issues the
petition has raised differs from that of the district court, we
ultimately agree with its original conclusion in Rios I that
allowing the 22-month adjustment effectuates the intent of
the sentencing court. Thus, we will affirm the district
court's order granting the petition and its direction to the
BOP to credit Rios with the 22 months he spent in
22
detention prior to the imposition of sentence on his federal
convictions.
B.
Notwithstanding our affirmance of the district court's
orders granting Rios habeas corpus relief, inasmuch as it
appears that the district court's application of section
3585(b) raises an issue of first impression in this circuit, we
will address its interpretation of that provision. In both of
its opinions, the district court essentially carved an
exception to the plain language of section 3585(b) so as to
award Rios a 22-month credit against his federal sentence,
so that his sentence was, in effect 68 months. In its original
memorandum and order, the district court relied on the
Court of Appeals for the First Circuit's decision in Benefield
as espousing the correct approach in determining if pre-
sentence credit under section 3585(b) is warranted even in
circumstances indicating that credit already had been
awarded against another sentence. See Rios I, 29 F.
Supp.2d at 235 (citing Benefield, 942 F.2d at 66-67). In its
second memorandum and order, it retreated from its
reliance on Benefield, explaining that it had been under the
impression originally that Rios's state and federal offenses
were related such that there was a basis for the application
of U.S.S.G. S 5G1.3(b). See Rios II, 34 F. Supp. 2d at 269.12
But because the district court on reconsideration
recognized that the sentencing court did not apply section
5G1.3(b) or its concept in awarding concurrent sentences
with "credit for time served," the district court found that
the reasoning in Benefield did not apply. See id.
The district court nonetheless found that under the
Court of Appeals for the Tenth Circuit's reasoning in Brown
II, the length of Rios's pre-sentence custody required a
departure from the general rule prohibiting credit on a
federal sentence for time spent serving a state sentence.
See id. at 269-70 (citing Brown II, 28 F.3d at 1075). In this
appeal, the BOP argues that the district court's analysis of
the crediting issue was incorrect in both opinions, and it
contends specifically that the general rule prohibiting
_________________________________________________________________
12. Rios asserts that they were related. See note 2, supra.
23
double credit should apply in this case. Accordingly, in its
view the 22-month time period at issue should not be
credited against Rios's federal sentence under section
3585(b).
The BOP's position is premised on the plain language of
the last clause of section 3585(b). As we previously
mentioned, section 3585(b) (emphasis added) provides:
(b) Credit for prior custody.--A defendant shall be given
credit toward the service of a term of imprisonment for
any time spent in official detention prior to the date the
sentence commences--
(1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
The courts have construed the last clause of section
3585(b) as limiting an award of credit for time served prior
to the imposition of a federal sentence under section
3585(b) to instances where the time period was not spent in
service of a previously imposed sentence and thus had not
been credited against that earlier sentence. In other words,
the majority of courts addressing this issue have
determined that section 3585(b) generally prohibits an
award of "double credit." See, e.g., Chambers v. Holland,
920 F. Supp. 618, 623 (M.D. Pa.) ("The relief which
petitioner seeks, i.e., to be given credit on his federal
sentence for time served on [an ad prosequendum] writ
issued by the federal court while he remained in the
primary custody of the state, is inconsistent with federal
law. Section 3585 does not permit credit on a federal
sentence for time served and credited against another
sentence."), aff 'd, 100 F.3d 946 (3d Cir. 1996) (table); see
also United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir.
1998) (noting that a defendant has no right to credit on his
federal sentence for time that has been credited against his
prior state sentence); United States v. Kramer, 12 F.3d 130,
132 (8th Cir. 1994) (holding that the BOP "properly decided
24
not to award [the petitioner] credit for the time served, as
it would have contravened the proscription in 18 U.S.C.
S 3585(b) against double crediting"; court explained that
"[t]he record shows that [the petitioner] received credit
toward his state sentence for that same time period");
United States v. Dennis, 926 F.2d 768, 769 (8th Cir. 1991)
(reaching same conclusion); Arashi v. United States, No. 94-
7603, 1995 WL 453308, at *10 n.3 (S.D.N.Y. July 31, 1995)
(noting that section 3585(b), the successor statute to
section 3568, states explicitly that an individual can receive
jail time credit only for time spent in custody"that has not
been credited against another sentence"); cf. Wilson, 503
U.S. at 337, 112 S.Ct. at 1355-56 (explaining that with the
enactment of section 3585(b) in place of section 3568,
"Congress made it clear that a defendant could not receive
a double credit for his detention time.").
We agree with this body of case law interpreting the plain
language of section 3585(b), and find that in the
circumstances presented here, the section does not
authorize the award of credit for the 22 months that Rios
spent in federal control under the second writ. 13 It is
_________________________________________________________________
13. Although the issue is not squarely before us, we recognize that the
BOP permits the award of what amounts to a form of"double credit" in
certain limited circumstances despite the plain language of section
3585(b). The BOP does not contest this point on appeal. Indeed,
throughout the adjudication of Rios's administrative appeals of the BOP's
denial of credit, the BOP referred to the possibility of an award of
"double credit" pursuant to the "Willis/Kayfez line of cases." App. at 62,
68. These statements refer to Willis v. United States, 438 F.2d 923 (5th
Cir. 1971), and Kayfez v. Gaselle, 993 F.2d 1288 (7th Cir. 1993).
To the extent that the district court relied on the fact that the BOP
permits a credit under Willis and Kayfez which seemingly conflicts with
the plain language of section 3585(b), we believe that it read too much
into those opinions. Both Willis and Kayfez involved different crediting
issues not presented on the facts of this case, as the 22-month time
period at issue here occurred after the state sentence was imposed but
before the federal sentence was pronounced. See U.S. Dept. of Justice,
Fed. Bureau of Prisons Program Statement 5880.28(c)(2)(c) & (d) (Feb.
14, 1997) (providing formulas for calculation of Willis and Kayfez
credits). Moreover, it is clear from the administrative appeals that
occurred in this case that the BOP considered the possibility of
25
undisputed that the 22-month time period was credited
against his state sentence, as Rios already had been
sentenced on the state offense and thus was serving that
sentence during the relevant time period. We therefore
conclude that the district court applied section 3585(b)
incorrectly.
Specifically, in its memorandum and order denying the
BOP's motion for reconsideration, the district court held
that a departure from the general rule prohibiting double
credit was warranted because of the length of time that
Rios was held in federal detention pursuant to the second
writ. In reaching its conclusion, it relied on Brown II where
the court reached a similar result under factually
analogous circumstances. See Rios II, 34 F. Supp. 2d at
269-70 (citing Brown II, 28 F.3d at 1075; Brown I, 21 F.3d
at 1008-09).
The defendant in Brown sought a credit against his
federal sentence for time spent in a federal prison pursuant
to writ of habeas corpus ad prosequendum while awaiting
trial and sentence on a federal narcotics charge. See Brown
I, 21 F.3d at 1008. Prior to his arrest on the federal
charges, a state court sentenced the defendant on a
narcotics conviction. The defendant eventually was
convicted of the federal offense. At the defendant's
sentencing on the federal charge, the district court awarded
jail time credit for all of the time spent in federal control
pursuant to the writ. At some later point the credit was
redacted, leading the defendant to file a habeas corpus
petition in the district court. The court of appeals stated
that the dispositive issue was whether the defendant was
entitled to credit on his federal sentence for the time spent
in federal detention pursuant to the writ of habeas corpus
ad prosequendum. See id. at 1009.
_________________________________________________________________
additional credit under the Willis/Kayfez line of cases, but rejected it.
Thus, nothing in this opinion should be construed as suggesting that in
other cases, the BOP's award of Willis and/or Kayfez credits is improper.
The BOP's position with respect to the grant of Willis and Kayfez credits
simply has no application to the facts of this case, and does not affect
our conclusion that the award of double credit in Rios's case is
prohibited by section 3585(b).
26
In the original panel opinion in Brown I and in its
supplemental opinion in Brown II, the Court of Appeals for
the Tenth Circuit held that the defendant was entitled to
credit on his federal sentence for the time he was detained
pursuant to the writ, which was approximately 19 months.
The supplemental opinion recognized that pursuant to the
writ, the defendant was in effect "on loan" to the federal
authorities. Nevertheless, the court concluded that the
"loan" effectuated by the writ at some point"transmuted"
into federal "custody" for purposes of section 3568 such
that credit against the federal sentence should have been
given to the defendant. See Brown II, 28 F.3d at 1075. The
court stated that the defendant's case was unique because
of the duration of the federal detention. See id. While
declining to adopt a per se rule as to how long a state
prisoner may be on loan to federal authorities without
taking custody of the prisoner, the court found that the 19-
month detention constituted federal custody under the
plain language of section 3568, the predecessor statute to
section 3585(b). See id.
While the district court stated that the rule enunciated in
Brown II was persuasive and thus applied it in this case,
we find its reliance on Brown II misplaced. First, as the
district court correctly pointed out (but did notfind
dispositive), Brown was decided under section 3585(b)'s
predecessor statute, section 3568. Section 3568 did not
contain the explicit prohibition on double credit found in
section 3585(b). See Wilson, 503 U.S. at 337, 112 S.Ct. at
1355-56 (stating that Congress made clear in section
3585(b) that a defendant could not receive double credit for
his detention time). While the district court noted the
difference in statutory language, it reasoned that the
change was a "mere" codification of prior case law under
section 3568 and therefore immaterial. See Rios II, 34 F.
Supp.2d at 270-71.
We do not share the district court's view that the change
in language is immaterial. Assuming that the district court
is correct in its supposition that Congress added the last
clause of section 3585(b) to codify then-existing case law
interpreting section 3568, it does not follow that we may
ignore the plain language in section 3585(b) to achieve
27
what may be perceived as an equitable result.14 Because the
court in Brown obviously did not address the plain
language of the last clause of section 3585(b), we believe
that the district court erred in relying on the rule of law
announced in that case. See Brown I, 21 F.3d at 1010 ("The
fact that the state continued to grant Appellant jail time
credit does not impact on our analysis under the facts
presented herein because Appellant clearly satisfied the
requirements of S 3568.").
More fundamentally, however, we respectfully disagree
with the reasoning employed by the court in Brown. We
understand the court's conclusion that the prolonged
detention transmuted into federal custody as an attempt to
fit the case within the plain language of section 3568.
Indeed, the court's reference to the federal detention as
being transmuted into custody for purposes of the crediting
statute tracks the pertinent language of section 3568.15
Nevertheless, as the BOP correctly argues, the law on this
point is clear: a prisoner detained pursuant to a writ of
habeas corpus ad prosequendum remains in the primary
_________________________________________________________________
14. Our research reveals that the majority of the courts addressing the
meaning of section 3568 interpreted that statute to prohibit the award
of "double credit" despite the fact that the language of the statute did
not
explicitly limit its application in that manner. See, e.g. Sinito v.
Kindt,
954 F.2d 467, 470 (7th Cir. 1993) (noting that several cases held under
section 3568 that a prisoner in state custody subject to a writ of habeas
corpus ad prosequendum based on a federal charge is not entitled to
pretrial credit against his subsequent federal sentence because the time
spent in pretrial custody was credited toward his existing state sentence)
(citing cases); Siegel v. United States, 436 F.2d 92, 95 (2d Cir. 1970)
(finding that defendant was not entitled to double credit for time spent
in federal control prior to the imposition of the federal sentence where
it
was undisputed that he was serving a state sentence during the relevant
time period and the time was credited to his state sentence).
15. Section 3568, which was repealed in 1984, provided in relevant part
(emphasis added):
The sentence of imprisonment of any person convicted of an offense
shall commence to run from the date on which such person is
received at the penitentiary, reformatory, or jail for service of such
sentence. The Attorney General shall give any such person credit
toward service of his sentence for any days spent in custody in
connection with the offense or acts for which sentence was imposed.
28
custody of the first jurisdiction unless and until the first
sovereign relinquishes jurisdiction over the prisoner. See,
e.g., Jake v. Herschberger, 173 F.3d 1059, 1061 n.1 (7th
Cir. 1999); Chambers, 920 F. Supp. at 622; United States v.
Smith, 812 F. Supp. 368, 371-72 (E.D.N.Y. 1993).
We are not aware of any principle of law which supports
the conclusion that the length of time in federal detention
effectively abrogates the doctrine of primary jurisdiction --
predicated on principles of comity -- and "transmutes" the
inmate into a federal prisoner for crediting purposes under
section 3585(b) or its predecessor statute, section 3568.
Moreover, we are unable to ascertain the point at which the
prisoner would be deemed to have become a federal
prisoner for credit purposes. In this regard, we point out
that it is ironical that the longer the federal pretrial
detention lasted, the better off the prisoner would be from
a crediting standpoint, because a short detention might not
result in the prisoner's being regarded as being in federal
custody at all, in which case he would not be entitled to
credit for that period against the federal sentence ultimately
imposed.
Thus, we agree with those courts which have determined
that the general rule prohibiting double credit articulated in
section 3585(b) applies equally to situations where, as here,
the prisoner was in federal control pursuant to a writ of
habeas corpus ad prosequendum during the time period for
which a pre-sentence credit is sought. See Chambers, 920
F. Supp. at 622-23 (finding that petitioner could not receive
credit on federal sentence for time period commencing
March 9, 1992, to October 16, 1992, the date the federal
sentence was imposed; court noted that petitioner was
serving state sentence as of March 9, 1992, and was
subject to primary jurisdiction of state during relevant time
period); see also Miller v. Crabtree, No. 98-989, 1999 WL
607191, at *2 (D. Or. Aug. 4, 1999) (rejecting petitioner's
request for credit for pre-sentence incarceration where
petitioner received credit for time served on sentence for
state parole violation); United States v. Mahmood, 19 F.
Supp.2d 33, 35 (E.D.N.Y. 1998) (denying petitioner credit
under section 3585(b) not awarded by BOP for entire pre-
sentence time period and noting that BOP "erred on the
29
side of generosity" in awarding some credit toward federal
sentence for time spent in detention pursuant to a federal
writ of habeas corpus as prosequendum; court noted that
time spent in custody pursuant to writ already had been
credited against state sentence); Smith, 812 F. Supp. at 374
(recognizing that section 3585(b) prohibits "double credit");
cf. Sinito v. Kindt, 954 F.2d 467, 470 (7th Cir. 1993) (and
cases cited therein) (rejecting petitioner's request for credit
on second federal sentence for pre-sentence incarceration
pursuant to section 3568; court stated that petitioner's
request was "absurd," as it was clear that petitioner was
serving a prior federal sentence during the detention
period); Arashi, 1995 WL 453308, at *4-9 (reaching same
conclusion under similar facts).
The principal rationale for disallowing double credit in
this circumstance is that the prisoner is not in custody
solely because of the pending federal charges, but instead
is serving the prior state sentence. See Sinito, 954 F.2d at
469; Miller, 1999 WL 607191, at *2; see also Chambers,
920 F. Supp. at 622-23. Thus, in harmony with the
principles of primary custodial jurisdiction and comity, the
prisoner remains in service of the first sentence imposed
during the time period, and the writ merely "loans" the
prisoner to federal authorities. See id. at 622 (stating that
producing a state prisoner under a writ of habeas corpus
ad prosequendum to answer to federal charges does not
relinquish state custody); Smith, 812 F. Supp. at 371, 374
(same) (citing cases).
Applying these principles to the circumstances of Rios's
detention on the federal writ, it is clear that he remained
throughout the 22-month time period in the primary
custodial jurisdiction of the State of New York, and that as
a result, he received credit against his state sentence for
the entire 22 months. Indeed, it would appear that the
situation presented in this case is the quintessential
example of when section 3585(b)'s prohibition of double
credit should apply. Moreover, this position is consistent
with the BOP's Program Statement interpreting section
3585(b) which is entitled to deference.16 See Dept. of
_________________________________________________________________
16. A Program Statement is an internal agency guideline, which is akin
to an interpretive rule. See Reno v. Koray, 515 U.S. 50, 61, 115 S. Ct.
2021, 2027 (1995). Where the BOP's interpretation of section 3585(b) is
a "permissible construction of the statute," it is entitled to "some
deference." Id., 115 S.Ct. at 2027.
30
Justice, Bureau of Prisons' Program Statement No.
5880.28(c)(1)(a)(2) (Feb. 14, 1997) ("Credit will not be given
for any portion of [pre-federal sentence] time spent serving
another sentence regardless of whether the sentence is
federal, state or foreign."); id. at No. 5880.28(c)(6) (July 29,
1994) ("Time spent in custody under a writ of habeas
corpus from non-federal custody will not in and of itself be
considered for the purpose of crediting pre-sentence time.
The primary reason for `writ' custody is not the federal
charge." The federal court merely `borrows' the prisoner
under the provisions of the writ for secondary custody.").
As we have indicated, in addition to its reliance on Brown
II, the district court originally premised its result on the
opinion in Benefield, but then retreated from its position in
deciding the BOP's reconsideration motion. On
reconsideration, the district court read the outcome in
Benefield as grounded on the fact that the federal charges
arose out of the same conduct as the state conviction, and
determined that the state and federal charges in this case
were not based on the same conduct. It reached its
conclusion in this connection apparently because the
record submitted on reconsideration demonstrated that the
sentencing court did not apply U.S.S.G. S 5G1.3(b) at
sentencing. See Rios II, 34 F. Supp. 2d at 269.
Rios argues in his brief that the holding in Benefield
provides an alternative basis for affirming the district
court's grant of habeas corpus relief. We, however, disagree
with Rios to the extent that he contends that Benefield
compels the conclusion that he is entitled to a 22-month
credit against his federal sentence under section 3585(b).
To be sure, the court of appeals in Benefield permitted an
award of pre-sentence credit on a federal sentence for time
credited toward service of the state sentence. Nevertheless,
we cannot determine from the opinion which period of
incarceration was at issue, i.e., whether the defendant
served the time prior to the imposition of the state
sentence, after the imposition of the state sentence but
prior to the commencement of the federal sentence, or both.
See Benefield, 942 F.2d at 66-67 (noting that defendant
sought credit for "time served prior to sentencing"); see also
Major Michael G. Seidel, Giving Service Members the Credit
31
They Deserve: A Review of Sentencing Credit and Its
Application, Army Law., (Aug. 1999), available in Westlaw,
1999-AUG ARMLAW, at *7, *12 (indicating that Benefield
interpreted section 3585 to require federal credit for state
pretrial confinement). As we have explained in note 13, the
BOP permits an award of pre-sentence credit under section
3585(b) in certain circumstances even where the same
period of detention was credited against a prior sentence.
Inasmuch as the basis for the court's holding in Benefield
is unclear, we do not believe that its outcome controls on
the facts of this case as it is undisputed that Rios spent the
entire 22 months in service of a previously imposed state
sentence and thus received credit against that state
sentence. In any event, to the extent that Benefield may be
inconsistent with our result, we will not follow it.
In our view, the construction of the last phrase of section
3585(b) and its application to the facts of this case is
relatively straightforward. If the sentencing court had not
applied section 5G1.3(c) and Application Note 3 in
pronouncing Rios's sentence such that the issue presented
on appeal was in fact a crediting matter governed by
section 3585(b), under that statute Rios would not be
entitled to the 22-month credit for the time spent in federal
control pursuant to the writ. Indeed, the district court
recognized that section 3585(b) generally prohibits an
award of double credit. Rios II, 34 F. Supp. 2d at 270
("Unlike in Brown, where section 3568 did not prohibit
double credit, section 3585(b) does, and since Rios received
credit for the 22-month period on his New York state
sentence, it could be argued that section 3585(b) prohibits
credit here.").
For each of these reasons, we find that the district court
interpreted section 3585(b) incorrectly so as to permit the
court to require the BOP to award Rios double credit for the
22-month time period at issue. We thus expressly reject the
alternative rule enunciated by Brown II and followed by the
district court in this case. Nevertheless, despite the district
court's error in this regard, we will affirm on the alternative
ground that the sentencing court applied section 5G1.3(c)
and Application Note 3 in sentencing Rios such that the
BOP is required to calculate his federal sentence in the
manner he requested in his petition.
32
V. CONCLUSION
For the foregoing reasons, we will affirm the order
granting Rios's petition for a writ of habeas corpus entered
December 8, 1998, and the order denying reconsideration
entered on February 3, 1999.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
33