No.

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES LEE REYNOLDS, Petitioner,

V.

J. E. THOMAS, Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PA UPERIS

The petitioner, Charles Lee Reynolds, requests leave to file the attached petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of costs and to proceed informapauperis pursuant to Rule 39.1 ofthis Court and 18 U.S.C.

3006A(d)(7). The petitioner was represented by counsel appointed under the

Criminal Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court of Appeals, and therefore no affidavit is required. Respectfiilly submitted this da of November, 2 0.

/C?QI Stephen R. Sady

Attorney for Petitioner

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES LEE REYNOLDS,

Petitioner,
V.

J. E. THOMAS,

Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Petitioner

QUESTION PRESENTED Most federal crimes involve concurrent jurisdiction with state authority to prosecute and sentence. In Ponzi v. Fessenden, 258 U.S. 254, 259 (1922), this Court held that comity requires that state and federal jurisdictions must respect each others decisions where dual prosecutions overlap. The federal Circuits are split on the question whether 18 U.S.C.

35 84(a) (2006), which addresses concurrent and consecutive sentences, authorizes a federal
sentence to be imposed consecutively to or concurrently with a non-existent sentence. The federal courts, in those Circuits that do not permit sentencing relative to non-existent sentences, allow the Bureau of Prisons, an Executive Branch agency, to determine whether a sentence should run consecutively or concurrently, even where a subsequent state court judgment has ordered that the state sentence run concurrently with the previously imposed federal sentence. Judges in three Circuits have called upon Congress to address the manifest constitutional issues raised in those cases where the actual period of custody is determined not by the state courts or by the federal courts, but by the Bureau of Prisons. The question presented is: Whether, under 18 U.S.C. 3584(a), 3585(b), and 3621(b), the Bureau of Prisons must administer the sentence of a federal prisoner, in order to be in compliance with federal sentencing statutes and the Constitution, in a manner that effectuates the subsequent judgment of the state judiciary that the state sentence run concurrently with the previously imposed federal term of imprisonment?

TABLE OF CONTENTS Page

Table of Authorities Opinions Below 2. 3. 4. 5. Jurisdictional Statement Constitutional And Statutory Provisions Statement Of The Case Reasons For Granting The Writ A. To Formulate The National Rule For Concurrent And Consecutive Sentencing, This Court Must First Resolve The Mature Conflict Among The Circuits Regarding Federal Judicial Authority To Impose A Sentence Concurrently With Or Consecutively To A Non-Existent Sentence Based On 3584(a)s Limitation To Existing Sentences, The Bureau Of Prisonss Action That, After Imposition Of The Federal Sentence, Creates A De Facto Consecutive Sentence, Violates The Constitutional And Statutory Rights To Finality Of Judgments, Comity For State Judgments, Separation Of Powers, And Due Process 1. Federal Constitutional And Statutory Provisions Regarding Finality 15 2. Constitutional Protections Incorporated In Comity And Full Faith And Credit Constitutionally Required Separation Of Powers Due Process Protections Against Arbitrary And Capricious Punishment iii 1 2 2

10

B.

13

17 20

3. 4.

21

C.

Certiorari Is Appropriate Because The Court Would Be Addressing An Exceptionally Important Question By Reviewing The Relevant Sentencing Statutes And Constitutional Provisions Afresh, This Court Would Remove The Obstacles To Providing Due Respect For Subsequent State Judgments Of Concurrency The Present Case Presents An Ideal Vehicle For Resolving These Issues

23

D.

25

E.

28 6. Conclusion 29

Certificate of Service and Mailing

INDEX TO APPENDIX

Findings and Recommendations of Magistrate Judge (June 25, 2008) District Court denial of habeas corpus relief (August 5, 2008) Ninth Circuit affirming denial of habeas corpus relief (May 7, 2010) Ninth Circuit denial of panel and en banc rehearing (August 17, 2010) 18 U.S.C. 18 U.S.C.
.

App.1 App. 17 App. 19 App. 51 App. 52 App. 53 App. 54 App. 57 App. 60

3584 3585

18U.S.C.3621 U.S.S.G.

5G1.3

U.S.S.G. 5K2.23 Program Statement 5160.05, Designation of State Institution for Service of Federal Sentence (Jan. 16, 2003) Program Statement 5880.28, Sentence Computation Manual (excerpt) (July 19, 1999)
11

App. 61

App. 74

TABLE OF AUTHORITIES Page FEDERAL CASES

Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72 (2d Cir. 2005) Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991) Clark v. Martinez, 543 U.S. 371 (2005) Davis v. Davis, 305 U.S. 32 (1938) Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992) Dillon v. United States, 130 S. Ct. 2683 (2010) Fegans v. United States, 506 F.3d 1101(8th Cir. 2007) Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006) Kelly v. Robinson, 479U.S. 36 (1986) Kimbrough v. United States, 552 U.S. 85 (2007) Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982) Lopez v. Terrell, 697 F. Supp. 2d 549 (S.D.N.Y. 2010)

23

27

11,25

19

23

15

23

22

19

26

19

..

22

111

Mempa v. Rhay, 389 U.S. 128 (1967) Ponzi v. Fessenden, 258 U.S. 254 (1922) Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010) Romandine v. United States, 206F.3d731(7thCir.2000) Skilling v. United States, 130 S. Ct. 2896 (2010) Spears v. United States, 129 S. Ct. 840 (2009) Strand v. Schmittroth, 251 F.2d 590 (9th Cir. 1957) Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002)

16

8, 17

..

2, 7, 14, 20, 21, 23, 26, 28

..

...

12

11,25

26

..

17

20

United States v. Ballard, 6F.3d1502(llthCir. 1993).. United States v. Bergmann, 836 F.2d 1220 (9th Cir. 1988) United States v. Clayton, 927 F.2d 491 (9th Cir.1991) United States v. Donoso, 521 F.3d 144 (2d Cir. 2008)... United States v. Lopez, 514 U.S.549 (1995)

12

16

1.2

11, 12

...

18

iv

United States v. Mayotte, 249 F.3d 797 (8th Cir. 2001) United States v. Meza, 620F.3d505(5thCir2OlO) United States v. Quintero, 157F.3d 1038 (6thCir.1998) United States v. R.L. C., 503 U.S. 291 (1992) United States v. Setser, 607F.3d128(5thCir.2010) United States v. Smith, 472 F.3d 222 (4th Cir. 2006) United States v. Tucker, 404U.S.443 (1972) United States v. Williams, 46 F.3d 57 (10th Cir. 1995) United States v. Wilson, 503 U.S. 329 (1992) Younger v. Harris, 401 U.S. 37 (1971) Zadvydas v. Davis, 533 U.S. 678 (2001)

12

16

12

26

10, 11,23

12

16

12

21, 22

19

23, 25

FEDERAL STATUTES AND GUIDELINES 18U.S.C. 3553 18 U.S.C. 18 U.S.C. 26 passim 3, 8, 25, 27
V

3584 3585

18 U.S.C. 3621 28 U.S.C. 1254 28 U.S.C. 1738 Act of May 26, 1790, 1 Stat. 122 Fed. R. Crim. P. 32 Fed. R. Crim. P. 35(c) Fed. R. Crim. P. 43(a) S. Rep. 98-225, at 126, reprinted in 1984 U.S.C.C.A.N. 3182, 3309 U.S.S.G. 5G1.3 U.S.S.G. 5K2.23

3,8,25,27 2 4,19 4 16 16 16 11 3,13 3,13

vi

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES LEE REYNOLDS,

Petitioner,
V.

J. E. THOMAS,

Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

The petitioner, Charles Lee Reynolds, respectfully requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered on May 7, 2010, affirming the denial of habeas corpus relief. 1. Opinions Below The district court denied habeas corpus relief on August 5, 2008, based on the adoption of findings and recommendations of the magistrate judge issued on June 25, 2008 (App. 1, 17). The Ninth Circuit affirmed the denial of habeas corpus relief on May 7, 2010,

in an opinion reported as Reynolds v. Thomas, 603 F.3d 1144(9th Cir. 2010) (App. 19). The Ninth Circuit denied panel and en banc rehearing on August 17, 2010 (App. 51).

2.

Jurisdictional Statement
This Courts jurisdiction is invoked under 28 U.S.C.

1254(1) (2006).

3.

Constitutional And Statutory Provisions

The statute authorizing sentencing judges to impose consecutive and concurrent

sentences states in relevant part:

(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.

18 U.S.C.

3584(a) (2006).

The statute authorizing the Bureau of Prisons to calculate credit

against the term of imprisonment provides:

(a) Commencement of sentence. A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. (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 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. 18 U.S.C.

3585 (2006). The Bureau of Prisons has authority to designate the place of

imprisonment, including state facilities for the service of federal sentences, pursuant to the statute that states in part: (b) Place of imprisonment. The Bureau of Prisons shall designate the place of the prisoners imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and any pertinent policy statement issued by the Sentencing (5) Commission pursuant to section 994(a)(2) of title 28.

18 U.S.C.

3621(b) (2006). The full text of 3585 and 3621 are set out in the Appendix.

App. 53, 54. The Appendix also includes the Guidelines on concurrent and consecutive sentences, U.S.S.G.

5G1.3 and 5K2.23 (App. 57, 60), and the Bureau of Prisons rules

pursuant to which the agency exercised power to create a de facto consecutive federal

sentence to a later-imposed state sentence ordered to run concurrently with the federal sentence (App. 61,
74)1

The interaction of these statutes and rules with subsequently imposed state sentences implicate several constitutional provisions. The Due Process Clause states, No person shall be
. . .

deprived of life, liberty, and property, without due process of law. U.S. CONST.

amend. V. The Full Faith and Credit Clause states, Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. U.S. C0NsT. art IV,

1. This provision of the Constitution applies to the federal government

through a statute passed by the First Congress, which states: The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C.

1738 (2006) (amended from the Act of May 26, 1790, 1 Stat. 122). The

Constitution reserves to the States authority over areas not delegated to or prohibited by the federal government: The powers not delegated to the United States by the Constitution, nor

Program Statement 5880.28 can be found in its entirety at http://www.bop.gov/ policy/progstatl5 880_028 .pdf. 4

prohibited by it to the States, are reserved to the States respectively, or to the people. U.S.
CONST. amend. X. The Supremacy Clause applies to crimes within the scope of federal laws

and the Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
. . .

shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art. VI, cl.2. 4. Statement Of The Case Grant of certiorari in this case will resolve one of the most intractable and pernicious
problems of federal sentencing: Executive Branch creation of de facto consecutive sentences that neither state nor federal judges have ordered. The scenario frequently occurs: 1) a

person is arrested by state authorities and is, therefore, in primary state custody; 2) through a writ of habeas corpus ad prosequendum or otherwise, the person is placed in temporary
federal custody, is convicted, and receives a federal sentence; and 3) the person is returned

to state custody, is convicted, and receives a sentence that is ordered to run concurrently with the federal sentence. Due to failure to construe federal sentencing statutes to avoid serious constitutional problems, the Ninth and other Circuits have approved federal administrative action that forces the federal prisoner to serve the federal sentence consecutively to the state sentence, contrary to the state courts judgment. This case followed exactly the scenario that has frustrated courts and litigants for decades. Montana authorities arrested IVIr. Reynolds and placed him in primary state custody.

By a writ of habeas corpus ad prosequendum, Mr. Reynolds was transferred to federal custody where he pleaded guilty and received a sentence to 71 months for identity theft and bank fraud. The federal judgment made no reference to concurrent or consecutive sentencing because no other sentence was in place. After the federal sentencing, Mr. Reynolds was returned to Montana custody, entered guilty pleas, and received state judgments that explicitly stated that the state sentences were to be served concurrently with the federal sentence. But upon being transferred back to federal custody after 51 months spent serving his state sentences, the Bureau of Prisons (BOP) refused to designate the state prison for service of the federal sentence or credit the state time, creating a de facto consecutive federal sentence. In other words, the federal Executive Branch, after the federal judgment was entered, nullified the state judgment that the state sentences would be satisfied by the previously imposed federal custody. The BOP presumes that silence in the federal judgment requires consecutive service under

3584(a). To rebut that presumption, the BOP s rules call for an ad hoc post-

sentence, non-binding inquiry to the federal judge regarding the appropriateness of concurrent or consecutive sentences when the federal judgment is silent. The first inquiry in Mr. Reynoldss case resulted in no comment, which the BOP interpreted as an intention to require service of 71 months consecutively to the 51 months already served on the state sentences based on the BOP s assessment of the seriousness of Mr. Reynoldss offense and of his history. When Mr. Reynolds wrote again to the judge several years later, the federal

judge indicated no objection to crediting the remaining time in custody, which still resulted in about 16 months of over-incarceration. Because this Court has held that over-

incarceration implicates equitable considerations of great weight, the Ninth Circuit reached the merits and, with one judge concurring, upheld the BOPs actions. Reynolds, 603 F.3d at 1148 (citing United States v. Johnson, 529 U.S. 53, 60 (2000)). The federal courts are split regarding federal judges authority, at the time of sentencing, to order a federal sentence to run concurrently with or consecutively to a non existent sentence. Even where

35 84(a) is construed to limit sentencing power, federal

courts have permitted the Executive Branch to create a de facto consecutive sentence, while recognizing the issues surrounding consecutive sentences executed in defiance of state judicial orders for concurrent sentences. Two Circuits and Judge Fletcher in the present case have called upon Congress to promulgate a legislative fix. However, the law in this area is susceptible to a simple judicial fix by this Court s grant of certiorari. First, the Court should definitively resolve the Circuit split by holding that

3584(a)

only authorizes a federal judge to impose a sentence consecutively to or concurrently with an existing sentence. Second, based on mainstream principles of statutory construction, applied with due respect for the federal constitutional principles of finality, comity, separation of powers, and due process, the Court should foreclose post-sentence federal action that thwarts the later state judgment that its sentence should run concurrently. The judicial solution is simple:

Under 18 U.S.C. 3584(a), a federal sentencing judge does not have authority to order a sentence to run concurrently or consecutively with a sentence not imposed at the time of sentencing; Federal action after imposition of the federal judgment judicial or executive to thwart a subsequent state concurrent sentence would violate federal sentencing statutes and important federal constitutional rights;

Therefore, the federal statutes must either be construed to bar the BOP from designating the place of incarceration under 18 U.S.C. 3621(b) in a manner inconsistent with the subsequent state judgment, or, to achieve the same result, to recognize that a subsequent sentence ordered concurrently with a federal sentence must be respected under 18 U.S.C. 3585(b), or the federal statutes violate the Constitution to the extent they thwart the subsequent state concurrent sentence.

The statutes and constitutional provisions underlying this simple solution effectuate this Courts recognition that proper respect for the dual sovereignties of States and the federal government require that subsequent judgments honored: We live in the jurisdiction of two sovereignties. each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfill their respective functions without embarrassing conflict unless rules were adapted by them to avoid it.... The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same person and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure. Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). By allowing each sovereign to impose as much, or as little, punishment as that sovereign sees fit, the Court alsoprotects the separation of powers by foreclosing an agency of the Executive Branch

whether state or federal

must be fully

the BOP

from adopting the

judicial function of determining the length of the sentence a defendant serves.

5.

Reasons For Granting The Writ

This case involves a question of exceptional importance that only this Court can

resolve: the Circuits are split on the underlying statutory construction; and this Courts resolution of the split necessarily addresses constitutional principles of finality, comity, separation of powers, and due process that the lower courts have failed to sustain. This Court s intervention is necessary to bring rationality and fairness to a frequent problem in federal sentencing. In this case, the original state defense attorney, in writing to the BOP, quoted the agency s own web site describing state and federal concurrent and consecutive sentences as probably the single most confusing and least understood sentencing issue in the Federal system. The federal district court in this case, bound by Ninth Circuit law, was troubl[ed by] the fact that the same branch of government that prosecuted petitioner also determined that he should serve his federal sentence consecutively to his state sentences. The accretion of lower court case law, with constitutional issues inadequately considered, has obscured or ignored this Courts simple constitutional jurisprudence that, when applied to the sentencing statutes on a clean slate, provides a rational and easily understood rule for decisions: the federal judge can only impose a sentence consecutively to or concurrently with an existing sentence, and the federal BOP must provide full respect to the later decision of a state court judge that the state crime requires no, or only partial, punishment in addition to that previously imposed by the federal court.

A.

To Formulate The National Rule For Concurrent And Consecutive Sentencing, This Court Must First Resolve The Mature Conflict Among The Circuits Regarding Federal Judicial Authority To Impose A Sentence Concurrently With Or Consecutively To A Non-Existent Sentence.

From the advent of the Sentencing Refonu Act, the Circuits have been in disarray regarding a federal judges power at sentencing to impose a sentence concurrently with or consecutively to a non-existent sentence. The Fifth, Eighth, Tenth, and Eleventh Circuits permit federal judges to impose a sentence consecutively to an unimposed state sentence; the Second, Fourth, Seventh, Sixth, and Ninth Circuits have held that

3584(a) does not

authorize the federal judge to impose a sentence consecutively to some sentence that may or may not be imposed in the future. As the Fifth Circuit recently concluded, the conflicting viewpoints have been exhausted and any reconsideration of the question is best left to the discretion of our Supreme Court. United States v. Setser, 607 F.3d 128, 131 n.2 (5th Cir. 2010). This Court should resolve the statutory construction question in favor of permitting federal judges to impose sentences only in relation to extant sentences. First, the text fully supports this reading. In the first sentence of

3584(a), the statute explicitly refers to the

power to impose a sentence in relation to another term of imprisonment where the sentences are imposed at the same time or if a term of imprisonment is imposed on a defendant who is afready subject to an undischarged term of imprisonment. 18 U.S.C.

3584(a). The

second sentence, referring back to the first clause of the first sentence, creates a default rule of concurrent sentencing where the terms of imprisonment are imposed at the same time. Id. 10

The third sentence, referring back to the second clause of the first sentence, creates a rebuttable presumption of consecutive where the sentence is imposed upon a defendant serving an undischarged term of imprisonment. Id. The statute authorizes no judicial acts relative to potential future terms of imprisonment. See Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993) (Expressio unius est exclusio alterius.). This construction is true to the text and avoids advisory opinions regarding sentences that may never be imposed and disrespect to state courts independent judgments regarding state law questions. The plain language of the statute is also supported by the legislative history, which demonstrates that the drafters were concerned with the imposition of a federal sentence on a defendant already serving either a state sentence or another federal sentence.
United States v. Donoso, 521 F.3d 144, 148-49 (2d Cir. 2008) (citing S. Rep. 98-225, at 126, reprinted in 1984 U.S.C.C.A.N. 3182, 3309). If there were ambiguity in the statute, the

doctrines of constitutional avoidance and the rule of lenity would require the construction favoring the defendant. Skilling v. United States, 130 S. Ct. 2896, 2930-32 (2010); Clark v. Martinez, 543 U.S. 371, 380-84 (2005). Notwithstanding the comity and advisory opinion problems, four Circuits unequivocally read

3584(a) to permit sentencing judges to impose sentence consecutively

or concurrently to non-existent state sentences:

United States v. Setser, 607 F.3d 128, 13 1-32 (5th Cir. 2010) ([T]he district court had the authority to and therefore did not abuse its discretion by imposing a consecutive federal sentence to a yet imposed state sentence.).

11

United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001) ([T]he authority to impose such a federal sentence to be served consecutively to a yet-to-be-imposed state sentence falls within the broad discretion granted to the court.). United States v. Williams, 46 F.3d 57, 59 (10th Cir. 1995) (We find no language in section 35 84(a) prohibiting a district court from ordering that a federal sentence be served consecutively to a state sentence that has not yet been imposed.). United States v. Ballard, 6 F.3d 1502, 1507 (11th Cir. 1993) ([T]he district court ha[s] the authority to impose a federal sentence consecutive to an unrelated, unimposed state sentence on pending charges.) (emphasis in original).

In contrast, five Circuits have held that 35 84(a), read in light of its context, its legislative history, and comity interests, only authorizes sentences consecutive to or concurrent with existing sentences:
United States v. Donoso, 521 F.3d 144, 148 (2d Cir. 2008) (The presumptions established by the last two sentences of 3584(a) must be read in light of th[e] limiting language at the beginning of the section.). United States v. Smith, 472 F.3d 222, 225 (4th Cir. 2006) ([Tjhe statute gives a court power to determine whether a sentence will run concurrently or consecutively only when a defendant is (1) sentenced to multiple terms of imprisonment. at the same time, or (2) already subject to an undischarged term of imprisonment.) (quoting 18
. .

U.S.C. 3584(a)).
Romandine v. United States, 206 F.3d 731, 737 (7th Cir. 2000) (Neither 3584(a) nor any other statute of which we are aware authorizes a federal judge to declare that his sentence must run consecutively to some sentence that may be imposed in the future.). United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998) (We hold that 18 U.S.C. 3584(a) does not authorize district courts to order a sentence to be served consecutively to a not-yet-imposed state sentence.). United States v. Clayton, 927 F.2d 491,492-93 (9th Cir. 1991) ([A] federal court may not direct a federal sentence to be served consecutive to a state sentence not yet imposed.
. .

12

The Sentencing Commission should also be viewed on the side of the split holding that 3584(a) does not apply to non-existent sentences. In U.S.S.G. 5G1.3, the

Commission addressed the application of concurrent and consecutive sentences in terms only of undischarged state or federal sentences, with instructions in the commentary on how to assure the sentence ran fully or partially concurrently with extant sentences or consecutively to such sentences. Similarly, by a 2004 amendment, the Commission recognized that departure may be appropriate for previously discharged state sentences under U.S.S.G.

5K2.23. The Commission provides no guidance for, nor recognition of, the possibility of
a sentence concurrent or consecutive to a future, yet-to-be-imposed sentence. The first step to bringing rationality and fairness to this area of federal sentencing law is for this Court to resolve the conflict in the Circuits by holding that 3584(a)s words, context, legislative history, and constitutional implications compel the reading that Congress did not authorize federal courts to impose judgment regarding hypothetical future state sentences. B. Based On 3584(a)s Limitation To Existing Sentences, The Bureau Of Prisonss Action That, After Imposition Of The Federal Sentence, Creates A De Facto Consecutive Sentence, Violates The Constitutional And Statutory Rights To Finality Of Judgments, Comity For State Judgments, Separation Of Powers, And Due Process.

This Courts task in bringing national uniformity and rationality to this area of federal sentencing law does not stop with resolving the conflicting interpretations of 3584(a). The Circuits that recognize that sentencing judges cannot impose concurrent or consecutive

13

sentences on non-existent terms of imprisonment effectively permit the Executive Branch to exercise retrospectively that precise power, even where the resulting consecutive federal sentence clashes with an express state judgment. As a consequence, federal Executive Branch action

after imposition of the federal judgment

negates the later state judgment

that the state sentence should run concurrently with the previous federal sentence. In the present case, one judge found that construing the third sentence in

35 84(a) to allow such

Executive Branch power is not an implausible construction, describing the post-sentencing procedure as follows: In a situation where a request for a nunc pro tunc designation is made, the subsequent state sentence has already been imposed. At least in a jurisdiction in which the federal judge has no authority to choose between a concurrent and consecutive sentence at the time of sentencing, the BOP sends a letter asking the judge whether he or she now wants the federal sentence to run concurrently or consecutively. This request by the BOP allows the federal sentencing judge in such jurisdictions, after the state sentence has been imposed, to say whether the federal sentence should be concurrent or consecutive... Once the BOP receives a response from the federal sentencing judge, it takes that response into account in deciding whether to grant the nunc pro tunc request.
. .

Reynolds, 603 F.3d at 1158-59 (W. Fletcher, J., concurring) (citations omitted). The Ninth
Circuit, as have other Circuits, expressly upheld this post-sentence Executive Branch procedure: In Reynoldss case, the federal sentencing judge responded to the BOPs letter by stating that he had no comment on whether the federal sentence should be concurrent or consecutive. In its denial of Reynoldss request, the BOP construed the judges silence as an indication that the federal sentence should be served consecutively. The BOP s statement did not cite 3584(a) but tracked both its language and its rule of construction. In 14

implicitly relying on 3584(a) in construing the judges silence, the BOP construed the third sentence of 3584(a) to include not only the judges silence at the time of imposing sentence, but also his later silence when asked whether a nunc pro tunc designation was appropriate. That is, the BOP construed the phrase unless the [federal] court orders that the terms are to run concurrently to apply not only to silence at the time of sentencing but also to silence in response to a letter of inquiry from the BOP. This broad reading of the third sentence of 3584(a) is not an implausible construction. I would therefore conclude that the BOP acted properly in construing the sentencing judges answer to the BOP s letter, in which the judge refused to express a preference, as an indication that a consecutive sentence was appropriate.
Id. at 1159. However, Judge Fletcher explicitly noted that the federal sentencing judges

recommendation is not determinative; the BOP reserves for itself the ultimate decision whether to give effect to the state judgment of concurrency. Id. at 1158-59. The construction of the statute to confer on the Executive Branch retrospective power to overturn a subsequent state sentence violates a number of fundamental federal constitutional rights, both relating to the personal rights of the defendant and the comity interests of the States.
1. Federal Constitutional And Statutory Provisions Regarding Finality

This Court recently emphasized the importance of finality in narrowly construing the authority to modify a sentence under the retroactive crack amendment. Dillon v. United States, 130 S.Ct. 2683, 2690 (2010) ([A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment and may not be modified by a district court except in limited circumstances) (citing 18 U.S .C.

3582(c)). Section 35 82(c)( 1 )(B) limits

modification of the sentence to what is expressly permitted by statute. Given that the federal judges oral pronouncement at a sentencing hearing constitutes the legal sentence,

15

federal constitutional and statutory protections on finality bar federal interference with subsequent state judgements. Fed. R. Crim. P. 35(c); see United States v. Meza, 620 F.3d
505, 507-09 (5th Cir 2010) (federal statutes generally bar sentence modification after

adjournment of the sentencing hearing); United States v. Bergmann, 836 F.2d 1220, 1221-22 (9th Cir. 1988) (oral pronouncement of sentence governs over later writtenjudgment because the constitutional double jeopardy protections and the defendants right to be present at the time of sentencing
. . .

require strict adherence). The narrow statutory circumstances

permitting modification of a federal sentence do not include a subsequent independent evaluation by the BOP as to concurrent or consecutive service of the sentences, even with consideration of what the federal judge would have wanted. Adherence to the requirements of finality also protects against the loss of due process protections that are missing after judgment is entered. Even though the post-judgment BOP actions may mean years of additional imprisonment, the prisoner lacks basic protections such as the right to counsel at sentencing, Mempa v. Rhay, 389 U.s. 128, 137 (1967), the due process rights to notice and opportunity to be heard incorporated in Rule 32, and the safeguards againstunreliable information, United States v. Tucker, 404 U.S. 443,447(1972). Most basically, the defendant has no right to be present when decisions are made that can greatly increase the actual time the defendant must serve in custody for his federal sentence. Fed. R. Crim. P. 43(a).

16

2.

Constitutional Protections Incorporated In Comity And Full Faith And Credit

Our system of dual sovereignty entitles both state and federal governments to execution of their own laws with mutual respect for the decisions of the other. The

interrelating doctrines of dual sovereignty, federalism, comity, and full faith and credit establish that a federal statute cannot constitutionally permit a federal agency to unilaterally supersede the subsequent state sentencing decision of a state judge. The federal government does not have general authority under the Supremacy Clause to second guess state criminal judgments. Rather, the state and federal sovereigns must co-exist and interact with complete mutual respect. Ponzi, 258 U.S. at 259; see Strand v. Schmittroth, 251 F.2d 590, 605 (9th Cir. 1957) (because there is no federal supremacy in the corner of the field which is specifically under consideration, the powers of a particular state and the central government are those of dual sovereignty in the identical territory.). In effect, the system of establishing primary jurisdiction upon which detainers are filed operates in criminal law analogously to commercial liens

once the first jurisdiction acts,

the second is free to act independently and fully based on the previous final disposition. Ponzi, 258 U.S. at 260 (The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purposes.). 17

In the area of general law enforcement outside areas of exclusive federal jurisdiction, this Court in United States v. Lopez noted that under our federal system, the States possess primary authority for defining and enforcing the criminal law. 514 U.S. 549, 561 n.3
(1995). This observation is consistent with the Tenth Amendments reservation of powers

to the States. See St. George Tucker, 1 BLACKSTONE COMMENTARIES, Appendix, at 186-87 (Birch & Small 1803) (the punishment for State [c]rimes and misdemeanors, in all cases not exclusively within federal jurisdiction, belongs to the state jurisprudence); 2 THE FEDERALIST, No. 45 at 82 (J. & A. McLean 1788) (James Madison) (The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order.
. .

of the

State.). Each sovereign has the power to impose as much or as little punishment for the crime as the sovereign desires. The federal governments ability to set punishment was not compromised or constrained where, as in the present case, the federal sentencing judge determined that 71 months incarceration was appropriate. The state sentence subsequently ordered to run concurrently does not impact the federal sentencing authority because the 71 months must be served. The State interest is simply that its conviction and sentence do not require more than the 71 months previously imposed by the federal court. The federal government must give effect to the States concurrent sentence because the subsequent sentencing only asserted the States own power, with no concomitant diminution of federal authority. See

18

Kelly v. Robinson, 479 U.S. 36, 47 (1986) (The right to formulate and enforce penal sanctions is an important aspect of the sovereignty retained by the States.); Younger v. Harris, 401 U.S. 37, 44 (1971) ([T]he National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.). Federal post-judgment action that trumps a subsequent state concurrent sentence raises serious questions under the Full Faith and Credit Clause. From the first days of the Republic, Congress extended the Full Faith and Credit Clause to the federal government by statute. See 28 U.S.C.

1738; Davis v. Davis, 305 U.S. 32, 39-40 (1938). The full faith and credit

obligation requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 (1982). The evils of introducing a general system of re-examination of the judicial proceedings of other states, whose connexions are so intimate, and whose rights are so interwoven with our own, would far outweigh any supposable benefits from an imagined superior justice in a few cases. Motives of this sort, founded upon an enlarged confidence, and reciprocal duties, might well be presumed to have entered into the minds of the framers of the confederation, and the constitution. They intended to give, not only faith and credit to the public acts, records, and judicial proceedings of each of the states, such as belonged to those of all foreign nations and tribunals; but to give to themfull faith and credit; that is, to attribute to them positive and absolute verity, so that they cannot be contradicted, or the truth of them be denied, any more than in the state, where they originated.
Joseph Story,

3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES,

1304, at

187 (1833) (Boston, Hilliard, Gray & Co. 1833) (emphasis in original; footnotes omitted). By disregarding the properly imposed state judgment that the state offense required no more 19

incarceration than had previously been imposed, the BOP violated the integrity the state proceedings and deprived the resulting judgment of the positive and absolute verity required by the Full Faith and Credit Act. The Ninth Circuits rejection of the Full Faith and Credit Act in this context rests on an erroneous premise: We hold that the Act does not apply to an attempt to enforce a state criminal sentence to limit a federal sentence for a federal crime. Taylor v. Sawyer, 284 F.3d 1143, 1153 (9th Cir. 2002) (cited in Reynolds, 603 F.3d at 1150-52). While it is true that the subsequent state sentence cannot limit the federal sentence, it is simply incorrect that respecting the subsequent judgment of concurrency limits the federal punishment. In the present case, the Montana state court merely exercised its sovereign authority to impose punishment for violations of its laws. The previous federal sentence of 71 months remained completely intact and completely served. But by disrespecting the subsequent sentence

failing to give it full faith and credit Mr. Reynolds was initially required to serve over four years of additional prison time that neither the state nor the federal court had ordered. This Court should construe the Full Faith and Credit Act to foreclose federal Executive Branch, post-judgment action that effectively negates the subsequent state court judgment that the state sentence should run concurrently with the federal sentence. 3. Constitutionally Required Separation Of Powers

Whether a sentence runs consecutively or concurrently determines the quantum of punishment

a decision vested solely in the Judiciary. By exercising its policy statements,

20

the BOP makes the foundational decision of whether the separate sentence should be concurrent. Reynolds, 603 F.3d at 1157 (W. Fletcher, J., concurring) (emphasis in original). This exceeds the BOP s power. The B OPs proper role is the administrative task of executing the judicially imposed sentence. See United States v. Wilson, 503 U.S. 329, 335 (1992) (the BOP has the responsibility for administering the sentence.). Because

sentencing decisions properly [belong] to a member of the judicial branch, that determination cannot rest in the Executive Branch. Reynolds, 603 F.3d at 1160 (W. Fletcher, J., concurring). The BOP s interpretation of the sentencing statutes violates the separation of powers doctrine because an Executive agency cannot, by deciding the concurrent or consecutive question, exercise the Judiciarys role of determining the length of punishment upon conviction. The BOP s program statements plainly state that the agency is not bound by the preference of the federal judge when making nunc pro tune determinations. Reynolds, 603 F.3d at 1161 (W. Fletcher, J., concurring). The BOPs purported discretion to ignore the federal judges preference accentuates the underlying impropriety of any federal post judgment exacerbation of the original federal judgment.

4.

Due Process Protections AgainstArbitrary And Capricious Punishment

This Court has stated that the calculation of pretrial credit depending on the timing of sentencing would be arbitrary: We can imagine no reason why Congress would desire the presentence detention credit, which determines how much time an offender spends in

21

prison, to depend on the timing of his sentencing. Wilson, 503 U.S. at 334. Yet that is precisely what happened in the present case. Due to the timing of state and federal

prosecutions, the BOP initially determined that Mr. Reynolds should serve 51 months more than the sentences reflected in his federal and state judgments. Even more capriciously, the actual time served increased or decreased depending on when requests were made for federal post-judgment recommendations: the amount of actual custody depended on whether and how often requests were made. In the present case, Mr. Reynolds may have served months or years less if he had made his second request sooner; he might still be serving the full extra 51 months if he had failed to make such a request. In reliance on Wilson, a district court invalidated a similar BOP rule that made the length of sentence depend on the timing of prosecution, stating: Courts do not construe ambiguous statutory language to make the amount of time an individual spends in prison depend on luck. Lopez v. Terrell, 697 F. Supp. 2d 549, 571 (S.D.N.Y. 2010). The court found it patently arbitrary for bureaucratic and litigation factors, irrelevant to the purposes of sentencing, to extend the length of time a person spends in prison. Id. In a related context, the Ninth Circuit recognized that, where the time in actual custody depended on the vagaries of where the juvenile was arrested, such disparate treatment might well trigger equal protection concerns. Jonah R. v. Carmona, 446 F.3d 1000, 1008 (9th Cir. 2006). By construing the relevant statutes to foreclose the BOP from dishonoring the subsequent state sentence, depending on the luck of prosecutorial timing or prisoner initiative, this Court

22

avoids serious due process and equal protection issues involving the central value of human freedom. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (Freedom from imprisonment from government custody, detention, or other forms of physical restraint of the liberty that [the Due Process] Clause protects.). C. Certiorari Is Appropriate Because The Court Would Be Addressing An Exceptionally Important Question.

lies at the heart

Certiorari should be granted because federal court of appeals judges have called for assistance in resolving the Circuit split as well as the separation of powers problems that only this Court can untangle after years of confusing rulings where basic constitutional issues were not adequately litigated or addressed. As reflected in the Fifth Circuit s recent decision to wait for this Court to resolve the split regarding 3584(a)s meaning, no further percolation is appropriate. Setser, 607 F.3d at 131 n.2. In the present case, the concurring judge joined two other Circuits in calling for Congress to fix the injustice of BOP practices that convert concurrent sentences into de facto consecutive sentences. Reynolds, 603 F.3d at 1160-61 (W. Fletcher, J., concurring) (citing Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 76 (2d Cir. 2005); Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007)). This concern is not new: nearly 20 years ago, a Ninth Circuit judge decried the injustice of a BOP de facto consecutive sentence that resulted in a prisoner spending approximately 8 years and seven months in prison, although neither the federal nor the state sentencing court anticipated that he would spend more than five years in prison. Del Guzzi v. United States, 980 F.2d 1269, 1271 (9th Cir. 1992) (Norris, J., concurring). 23

Despite these judicial calls for reform, nothing has changed. Prosecutors, defense counsel, and judges routinely have extreme difficulty achieving the sentencing result anticipated by all in the frequently arising situation where a defendant is subject to both state and federal prosecution. Federal and state prosecutions that go wrong involve the most serious constitutional principles. At a time when federal prisons are at 137% of capacity, the time involved in sentencing errors is great: the original BOP decision would have added over four years to Mr. Reynoldss imprisonment. The courts have expressed repeated concern regarding the obvious separation of powers issue when the same branch of government that prosecutes the federal prisoner determines concurrency instead of the sentencing judge from either sovereign. The case also involves federalism and comity concerns where the federal BOP countermands the state courts determination that the state sentence should run concurrently. And the case implicates core due process concerns if the Executive Branch is allowed unilaterally to upset the finality of the federal and state sentencing. The Circuit decisions inadequately consider the full context of the federal sentencing statutes, the practical implications of the conflicting rules, and the doctrine of constitutional avoidance. As a result, judges have been forced to approve unjust results. That status quo need not be tolerated: this Court should apply the rules of construction doctrine of constitutional avoidance system can easily understand.

especially the

to do simple justice in a manner all players in the

24

D.

By Reviewing The Relevant Sentencing Statutes And Constitutional Provisions Afresh, This Court Would Remove The Obstacles To Providing Due Respect For Subsequent State Judgments Of Concurrency.

By granting certiorari, this Court can properly construe the relevant statutes to avoid the serious constitutional questions raised by de facto consecutive sentences, imposed by the Executive Branch, that nullify subsequent legitimate state judgments that the state sentence should run concurrently with the previously imposed federal sentence. Such constructions would prevent the federal statutes from being unconstitutional as applied. This Court should grant certiorari to construe the relevant federal sentencing statutes following the rule requiring avoidance of serious constitutional issues. Skilling, 130 S. Ct. at 2929-30; Martinez, 543 U.S. at 380-81. This principle of construction applies to each of three statutes: 1)

3584(a) should be construed to

bar post-judgment federal action that

extends the period of actual incarceration by rendering a subsequent state concurrent sentence in fact consecutive; 2)

3621(b) should be construed to bar exercise of designation 3585(b)

authority that thwarts a subsequently imposed state concurrent sentence; and 3)

should be construed to permit sentence calculations that respect subsequent concurrent state sentences. To avoid the constitutional problems of Executive indefinite detention, this Court construed a six-month limit into an immigration detention statute with no time limit. Zadvydas, 533 U.S. at 689. With human liberty also at issue, the present statutes are easily susceptible to interpretations that avoid constitutional problems, especially in the context of the overarching statutory instruction to assure that a defendant receives a sentence no

25

greater than necessary to achieve the purposes of sentencing under 18 U.S.C.

3553(a).

Spears v. United States, 129 S. Ct. 840, 843 (2009) (quoting Kimbrough v. United States, 552 U.S. 85, 111 (2007)); see also United States v. R.L.C., 503 U.S. 291, 305 (1992) (the rule of lenity applies to the severity of sentencing under the Sentencing Reform Act). The simplest answer to the interaction of state and federal sentences is to resolve the Circuit conflict by construing

3584(a) to bar federal judgments regarding unimposed

sentences. Implementing constitutional interests in comity and separation of powers, as well as the contextual meaning of the relevant statutory language, this Court should hold that neither the federal judge nor the BOP has the authority to direct that a federal sentence be served consecutively to a state sentence not yet imposed, either before or after entry of the federal judgment. Both

3584(a)s statutory language limiting the subsection to persons

already subject to an undischarged term of imprisonment, as well as fundamental constitutional principles, prohibit federal actors from interfering with the States rights to apply and to enforce its own laws as it sees fit. The Ninth Circuits recognition in this case that, under

3584(a), federal courts cannot order a sentence to run either concurrently or

consecutively to a non-existent term, Reynolds, 603 F.3d at 1149, should have resolved this case. The statute that barred the sentencing judge from acting during the sentencing hearing also barred federal judicial and executive action, after entry ofjudgment, that retrospectively did the exact same thing.

26

In addition to

3584(a), this Court should construe

3621(b) and

3585 to require

the BOP to respect subsequently imposed state judgments of concurrency. As has been held since Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991), the BOP has authority to make nunc pro tune designations to state institutions under

3621(b).

This authority should be

construed to require such designation where necessary to effectuate a legitimate subsequent state judgment that a sentence run concurrently with a previous federal sentence. The B OPs failure to do so violates the statute as construed to avoid serious constitutional problems. The Court should also construe

3585 to the same effect.

The prohibition on credit

for prior custody is limited to time that has not been credited against another sentence. As Mr. Reynolds stated in reply to the B OPs reliance on this section: Neither does the governments discussion of 3585(b) affect the analysis in this case. There are clearly recognized exceptions to any statutory prohibition on receiving double credit The BOP is not compelled to create a consecutive sentence that neither the federal nor the state judge ordered.
. . . .

Given that each of IVIr. Reynoldss statejudgments expressly referenced the federal judgment in ordering concurrency, the Court should interpret the statute to avoid serious constitutional problems: legitimate and expressly interrelated judgments do not constitute credit against another sentence under

35 85(b). Therefore, the BOP has the power to credit the time

judicially determined to constitute the same sentence state judgment of concurrency.

or not another sentence

by the

27

E.

The Present Case Presents An Ideal Vehicle For Resolving These Issues.

This case provides a perfect fact situation to resolve the state and federal sentencing issues impacting numerous defendants. This case is a prototype of the infinite variety of state and federal interactions: the initial arrest by state authorities and resulting state primary jurisdiction; the formal or informal transfer to federal court for proceedings resulting in the

federal sentence; the return to state custody and eventual imposition of a state sentence ordered to run concurrently with the previous sentence; and the transfer back to federal custody after service of all or part of the state sentence. In federal custody, the BOP then either entirely or partially disregards the state judgment of concurrency.
The statutory questions are especially clear because the BOP articulated the initial refusal to provide any concurrency in almost the precise language of 3584(a): The federal judgment was silent regarding execution of your [sentence]. As such, multiple terms of imprisonment imposed at different times are deemed consecutive unless the court dictates otherwise. Reynolds, 603 F.3d at 1157. The BOP then essentially undertook an executive re-sentencing by evaluating Mr. Reynolds conduct and criminal history to determine whether he should receive the concurrent time through nunc pro tune designation to the state facility. Given the second post-judgment request for input from the federal judge, the present case is especially illustrative of the irrational vagaries of determining time in custody after both state and federal judgments have become final. The separation of powers issues, and all other issues argued here, were clearly raised and briefed before the lower courts.

28

6.

Conclusion
This case involves issues central to this Courts reasons for grating certiorari: the

federal Circuits have exhausted attempts to resolve an almost even split; basic constitutional principles previously elaborated by this Court are not being followed; resolution of the questions can only be accomplished by this Court; the underlying issues frequently recur within the federal criminal justice system; and fundamental comity and liberty interests are at stake. The Court should issue a writ of certiorari. Dated this of

Attorney for Petitioner

29

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES LEE REYNOLDS, Petitioner,

V.

J. E. THOMAS, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

CERTIFICATE OF SERVICE AND MAILING

I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify that pursuant to Rule 29.3, service has been made of the within MOTION FOR LEAVE TO PROCEED INFORMA PAUPERIS and PETITION FOR WRIT OF CERTIORARI on the counsel for the respondent by depositing in the United States Post Office, in Portland, Oregon on November copy thereof addressed to: 2010, first class postage prepaid, a certified true, exact and full

Kelly A. Zusman U.S. Attorney 1000 SW Third, Suite 600 Portland, OR 97204

Neal K. Katyal Acting Solicitor General Room 5614 Department of Justice 950 Pennsylvania Avenue, N. W. Washington, DC 20530-000 1

Further, the original and ten copies were mailed to the Honorable William K. Suter, Clerk of the United States Supreme Court, by depositing them in a United States Post Office Box, addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this of November, 2010, with first-class postage prepaid. Dated this day of November, 0.
-

day

Stephen R. Sady Attorney for Petitioner Subscribed and sworn to before me this day of November, 2010.

PUbliC
NOTARY PUBUC-OREGON COMMISSION NO.442717 MY COMMISSION EXPIRES OCTOBER 28,2013

O6Z

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CHARLES LEE REYNOLDS, Civil No. Petitioner, v. J.E. THOMAS, FINDINGS AND RECOMMENDATION Respondent. Stephen R. Sady Chief Deputy Federal Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Karin J. Immergut United States Attorney Suzanne A. Bratis Assistant United States Attorney 1000 Sw Third Avenue, Suite 600 Portland, Oregon 97204 Attorneys for Respondent 071244ST

///
1 FINDINGS AND RECOMMENDATION

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Id.

Accordingly,

the HOPs

calculation of petitioners

sentence

does not offend constitutional principles. RECOMMENDATION For the reasons identified above, the Petition for Writ of

Habeas Corpus

(docket #1)

should be DENIED,

and Judgment should be

entered DISMISSING this case with prejudice. SCHEDULING ORDER Objections to these Findings and Recommendation, due July 14, 2008. If no objections are filed, will be referred to a if any, are

then the Findings judge and go

and Recommendation

district

under advisement on that date. If objections are days filed, then the response is due within copy of the objections. When 10 the

after being served with a

response is due or filed, and Recommendation under advisement. will

whichever date is earlier, be referred to a district

the Findings judge and go

DATED this 25th day of June,

2008.

/s/

Janice M. Stewart Janice M. Stewart United States Magistrate Judge

16

FINDINGS AND RECOMMENDATION

App. 16

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

CHARLES LEE REYNOLDS, Petitioner,

CV 07-1244-ST

ORDER
V.

I.E. THOMAS, Respondent.

REDDEN, Judge: On June 25, 2008, Magistrate Judge Stewart issued her Findings and Recommendation (doe. 22) that the court deny Charles Lee Reynolds Petition (doe. 1) for Writ of Habeas Corpus, and enter judgment dismissing the case with prejudice. The matter is now before this court pursuant to 28 U.S.C.

636(b)(1)(B) and Federal

Rule of Civil Procedure 72(b). The magistrate judge makes only recommendations to the district Page 1 -ORDER

App. 17

court, and any party may file written objections to those recommendations. When a party timely objects to any portion of the magistrates judges Findings and Recommendation, the district court must conduct a de novo review of the portions of the Findings and Recommendation to which objections are made. 28 U.S.C.

636(b)(1)(C); McDonnell Douglas

Corp. v. Commodore

Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). The district court is not required to review the factual and legal conclusions of the magistrate judge, to which the parties do not object. Thomas v. Am, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The district court, however, retains responsibility for making the final determination and may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. 28 U.S.C.

636(b)(1).

Petitioner timely filed objections to Magistrate Judge Stewarts Findings and Recommendation. I have, therefore, given those portions of the Findings and Recommendation a de novo review. I agree with Magistrate Judge Stewarts analysis and conclusions. Accordingly, I ADOPT the Findings and Recommendation (doc. 22) without modification. The Petition for Writ of Habeas Corpus (doc. 1) is DENIED.
IT IS SO ORDERED.

DATED this 5th day of August, 2008.

Is! James A. Redden James A. Redden United States District Judge

PAGE 2- ORDER

App. 18

Case: 08-35810 05/07/2010 Page: 1 of 32

ID: 7328700 DktEntry: 35-1

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CHARLES LEE REYNOLDS,

Petitioner-Appellant,
V

No.

08-35810

D.C. No. 3:07-CV-01244-ST OPiNION

I. E.

THOMAS,

warden, Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Janice M. Stewart, Magistrate Judge, Presiding Argued and Submitted May 5, 2009Portland, Oregon Filed May 7, 2010 Before: William A. Fletcher, Carlos T. Bea and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta; Concurrence by Judge W. Fletcher

6811

App. 19

Case: 08-35810 05/07/2010 Page: 2 of 32

ID: 7328700 DktEntry: 35-1

REYNOLDS V. THOMAS

6813

COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender, for the appellant.

App. 20

Case: 08-35810 05/07/2010 Page: 3 of 32

ID: 7328700 DktEntry: 35-1

6814

REYNOLDS V. THOIVIAs

Suzanne A. Bratis, Assistant Unitcd States Attorney, for the appellee.

OPiNION IKUTA, Circuit Judge: Charles Lee Reynolds appeals from the denial of his peti tion for a writ of habeas corpus under 28 U.S.C. 2241, con tending that the Federal Bureau of Prisons (BOP) erred by refusing to issue an order under 18 U.S.C. 3621(b) that retroactively (nunc pro tunc) designated the Montana state prison where Reynolds served his state sentence as the place where he began serving his federal sentence. Such an order, in effect, would have deemed that Reynoldss federal sen tence ran concurrently with his state sentence, and thus would have shortened Reynoldss term of federal imprisonment by the amount of time he served in state prison. We affirm the district courts denial of the petition. I On October 3, 2002, Reynolds attempted unsuccessfully to cash a forged cashiers check at a bank in Ennis, Montana. Notified by the bank, state police arrived, and Reynolds fled in his car. Following a high-speed chase, the police captured Reynolds and booked him in the Madison County, Montana, jail in the early hours of October 4. His booking sheet indi cated that his arrest was pursuant to a warrant. Five hours after booking, Reynoldss arresting officer received a copy of a federal warrant issued for Reynolds, which listed offenses relating to identity theft and interstate flight to avoid prosecu tion. On October 29, the county attorney for Madison County charged Reynolds by Information with forgery, identity theft, and violation of the terms of three suspended sentences. The county attorney for Lewis and Clark County, Montana, filed additional charges against Reynolds shortly thereafter.

App. 21

Case: 08-35810 05/0712010 Page: 4 of 32

ID: 7328700 DktEntry: 35-1

REYNOLDS V. THOMAS

6815

Before Reynolds was tried or convicted in state court, the federal district court in Montana issued a writ of habeas cor pus ad prosequendum, which released Reynolds to federal custody to answer federal criminal charges. On May 22, 2003, Reynolds pleaded guilty to identity theft, 18 U.s.c. 1028(a)(7), and bank fraud, 18 U.S.C. 1344. The district court judge, Judge Charles Lovell, sentenced Reynolds to 71 months imprisonment for each count, with the sentences to be served concurrently. That same day, Reynolds was returned to state custody. Reynolds pleaded guilty to charges in Lewis and Clark County on July 24, 2003. The state court sentenced Reynolds to a term of fifteen years in state prison, with five years sus pended. The state judge ordered Reynoldss sentence for cer tain charges to run concurrently with the federal sentence imposed on defendant. Four months later, the state court in Madison County sentenced Reynolds to an additional five years in state prison, and likewise specified that this sentence should be served concurrently with Defendants sentences in Lewis and Clark County, Montana, and U.S. District Court to the extent which they overlap. Reynolds served 51 months in state prison. While in state prison, Reynolds petitioned the BOP to des ignate nunc pro tunc the Montana state prison as the place in which he may serve his federal sentence pursuant to 18 U.S.C. 362 1(b). 1 Reynolds sought a declaration that his fed
Section 3621(b) states, in pertinent part: 1 (b) Place of Imprisonment. The Bureau of Prisons shall desig nate the place of the prisoners imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or other wise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering

App. 22

Case: 08-35810

05/07/2010

Page: 5 of 32

D: 7328700

DktEntry: 35-1

6816

REYNOLDS V. THOMAS

eral sentence began when he was first incarcerated in state prison. In support of his request, Reynolds noted that the Montana courts had ordered that Reynoldss state sentence was to run concurrently with his federal sentence. The BOP determined, however, that the federal court had not ordered that his sentences run concurrently, and confirmed this inter pretation with Judge Lovell. The BOP denied Reynoldss request in December 2004. On December 22, 2006, Reynolds was released from state prison and transferred to federal custody. He thereafter renewed his request for retroactive designation of the state prison as the place where he began serving his federal sen tence. In response, the BOP again asked Judge Lovell to indi cate the Courts position on a retroactive designation in Reynoldss case. In its letter, the BOP explained that if Reyn oldss request were granted, he would have a projected release date of July 17, 2008; otherwise, his projected release date would be February 17, 2012. In a letter dated October 2007, Judge Lovell stated that he had no comment on [the BOP s] consideration of Defendant Reynolds for retroactive designa tion of the state institution for the service of the federal sen tence. The BOP denied Reynoldss request in November 2007 based on the factors listed in 18 U.S.C. 362 1(b), specifically
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28.

App. 23

Case: 08-35810 05/07/2010 Page: 6 of 32

D: 7328700 DktEntry: 35-1

REYNOLDS V. THOMAS

6817

the nature and circumstances of Reynoldss offense, Reyn oldss history and characteristics, and Judge Lovells response. Reynolds appealed this administrative determina tion. The BOP denied the appeal, stating that [t]he federal judgment was silent regarding the execution of your service. As such, multiple terms of imprisonment imposed at different times are deemed consecutive unless the court dictates other wise. Furthermore, the BOP explained, Reynolds did not merit nunc pro tune designation of the state prison under the factors enumerated in 18 U.S.C. 3621(b). Reynoldss actions (as noted by the federal sentencing court) posed a significant danger to the community, Reynoldss flight from state authorities created a substantial risk of death or serious bodily injury to others, and he had attempted to influence a witness. Furthermore, the BOP noted that in light of the career nature of [his] criminal activities, lengthy criminal his tory to include violence, and the characteristics of the instant offense, the likelihood of [his] recidivism is highly probable. Reynolds filed a petition for writ of habeas corpus under 28 U.S.C. 2241. The district court denied the petition, and Reynolds timely appealed. In November 2009, while this appeal was pending, Reynolds renewed his request for a nunc pro tune designation of the Montana state prison where he had been incarcerated as the place where he began service of his federal sentence. The BOP contacted Judge Lovell for a third time; this time, the judge responded that since the objectives of sentencing have apparently been largely met in his case, I have no objections to your suggestion for a retroactive desig nation. On November 18, 2009, the BOP granted Reynoldss request. Based on this ruling, the BOP determined that Reyn olds was entitled to immediate release. His five-year term of supervised release thus began on November 20, 2009. II Before addressing the merits of Reynoldss petition, we must address the governments argument that Reynoldss

App. 24

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ID: 7328700 DktEntry: 35-1

6818

REYNOLDS

v.

THOMAS

challenge to the BOPs November 2007 decision is moot because it was superseded by the BOPs November 2009 decision.
ji] We conclude that Reynoldss petition is not moot. A challenge to a term of imprisonment is not mooted by a peti tioners release where the petitioner remains on supervised release and [t]hcre is a possibility that [petitioner] could receive a reduction in his term of supervised release under 18 U.S.C. 3593(e)(2). Mujahid v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005); accordArrington v. Daniels, 516 F.3d 1106, 1112 n.4 (9th Cir. 2008); United States v. Verdin, 243 F.3d 1174, 1179 (9th Cir. 2001). Reynolds is currently scheduled to remain on supervised release until 2014. In support of his petition challenging the BOPs November 2007 decision, Reynolds claims he is entitled to a recalculation of his release date to July 17, 2008, and asserts that he was overincarcerated for sixteen months: from July 17, 2008 to his actual release date of November 20, 2009. A court could consider this alleged period of over-incarceration under 18 U.s.c. 3583(e) as a factor weighing in favor of reducing the term of supervised release. See United States v. Johnson, 529 U.S. 53, 60 (2000). Furthermore, because the BOPs November 2009 decision did not recalculate Reynoldss release date to July 17, 2008, it did not give Reynolds the relief he requested in his petition for habeas corpus. Accordingly, we reject the governments contention that Reynoldss appeal is moot. III

We turn to the merits of Reynoldss claim that the BOP erred in November 2007 when it denied his request for nunc pro tunc designation of the Montana prison as the facility for service of his federal sentences. We review de novo the denial of a petition filed under 28 U.S.C. 2241, Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000), reviewing underlying factual findings for clear error, McNeedly v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003).

App. 25

Case: 08-35810 05/07/2010 Page: 8 of 32

ID: 7328700 DktEntry: 35-1

REYNOLDS V. THOMAS

6819

12] We begin with a brief overview of the law applicable to federal courts and the BOP s determination of whether sen tences should be served consecutively or concurrently. Under 18 U.S.C. 3584, [m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently. 2 A court has the dis cretion, however, to order that multiple terms of imprison ment run concurrently when the court is imposing multiple terms on a defendant at the same time or is sentencing a defendant already subject to an undischarged term of impris onment. Id. The discretion granted by this provision is limited in two respects. First, concurrent sentences imposed by state judges are nothing more than recommendations to federal officials. Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir. 2002). Accordingly, the court referenced in 3584(a) refers only to federal courts. Second, we have held that even federal courts cannot order a sentence to run either concurrently or consecutively to a non-existent term. Id.; see 18 U.S.C.
Section 3584 provides, in relevant part: 2 (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 concurrent or consecu tive 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 imprison ment is being imposed, the factors set forth in section 3553 (a).

App. 26

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D: 7328700 DktEntry: 35-1

6820

REYNOLDS V.

THOMAS

3584(a). In other words, a federal court cannot order a sen tence to be served concurrently with a sentence, including a state sentence, that has not yet been imposed. id.
During the sentencing process, federal courts must also consider the United States Sentencing Guidelines. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en bane). Section 5G 1.3 of the Guidelines provides that under certain circumstances, if a defendant is already subject to an undis charged term of imprisonment for relevant conduct, the sen tencing court should adjust a defendants sentence for the crime of conviction to take into account the time already served and should order the sentence to run concurrently with the remaining undischarged term of imprisonment. 3 This Guideline also includes the Sentencing Commissions policy
Section 5G1.3(b)-(c) provides: 3 (b) If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsec tions (a)(1), (a)(2), or (a)(3) of lB 1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the fed eral sentence by the Bureau of Prisons; and the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.

(2)

(c)

(Policy Statement) In any other case involving an undis charged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially con currently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.

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statement that where there is an undischarged term of impris onment, the district court should exercise its discretion to achieve a reasonable punishment for the offense. 5G1.3(c). Once the district court has discharged its sentencing func tion, the defendant is committed to the custody of the BOP, which has the authority to calculate the defendants sentences in accordance with the district courts orders, as well as to designate the facility for service of such sentences. By statute, a federal sentence commences on the date the defendant is received in custody at the official detention facility at which the sentence is to be served. 18 U.S.C. 3585(a). The BOP has the authority to designate the place of the prisoners imprisonment. 18 U.S.C. 3621(b). In exercising this desig nation authority, the BOP is directed to consider a range of factors, including the nature and circumstances of the offense, the history and characteristics of the prisoner, any statement by the court that imposed the sentence including any recommendation as to the type of correction facility, and any pertinent policy statement of the Sentenc ing Commission. Id.

131 On its face, 362 1(b) gives the BOP only the adminis trative responsibility to identify the facility in which a federal prisoner will serve out the sentence imposed by the district court. The BOP has interpreted this statute, however, as authorizing it to issue a nunc pro tune order designating a state prison as the facility for service of a federal sentence when it is consistent with the intent of the federal sentencing court or with the goals of the criminal justice system. BOP Program Statement 5160.05 (January 16, 2003). Program Statement 5160.05 explains, [w]hen a federal judge orders or recommends a federal sentence run concurrently with a state sentence already imposed the Bureau implements such order or recommendation, ordinarily by designating the state facility as the place to serve the federal sentence. The BOP will also consider an inmates request for pre-sentence credit toward a federal sentence for time spent in service of a state sentence

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as a request for a nunc pro tunc designation. The Program Statement requires the BOP to consider the inmates request, and sets forth the procedure the BOP must follow in determin ing whether to designate a state prison for (in effect) concur rent service of a federal sentence. Such procedures require the BOP to ask the federal sentencing court if it has any objec tions to such designation. We approved the BOPs approach under this Program Statement in Taylor v. Sawyer, 284 F.3d at 1 148-49. In that case, we considered and rejected the argument that the Pro gram Statements grant of authority to the BOP to issue a nunc pro tunc designation was inconsistent with 3584 and thus invalid. Id. Instead, joining other circuits that had consid ered the issue, we concluded that such a designation by the BOP is plainly and unmistakably within the BOPs discre tion. Id. at 1149; see McCarthy v. Doe, 146 F.3d 118, 123 (2d Cir. 1998) (holding that the BOP has the discretion to grant or deny a request for nunc pro tunc relief); Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990) (same); see also Romandine v. United States, 206 F.3d 731, 738 (7th Cir. 2000) (expressing agreement with McCarthys bottom line on this point). Finally, we rejected the defendants arguments that such a conclusion was contrary to the doctrine of dual sovereignty, principles of comity and federalism, and the Full Faith and Credit Clause. Taylor, 284 F.3d at 1151-53. B Reynolds raises two arguments on appeal. First, notwith standing our decision in Taylor, he asserts that the BOP had an obligation to comply with the state courts determination
The BOP replaced Program Statement 5160.04 (April 19, 2000) ref 4 erenced in Taylor, 284 F.3d at 1143, with the current Program Statement 5160.05 in January 2003 in order to comply with a federal plain lan guage initiative. The two program statements are identical in all material respects.

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that Reynoldss sentences should run concurrently with his federal sentence. Second, he asserts that the BOPs denial of his request for nunc pro tunc designation of the Montana prison was arbitrary and capricious, primarily because the BOP based its denial on the historical accident that Reynolds was sentenced by the federal court before the state court. We address these arguments in turn. 1 Reynolds begins with a two-part argument as to why the BOP erred in ignoring the state courts orders. Reynolds first points to 3584(a), which states that multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently. Because the state court here ordered the state and federal terms to run concurrently, Reynolds argues, the BOP was bound by this ruling. The BOPs decision to the contrary, Reynolds contends, was an improper assumption of judicial authority to determine the length of his sentences, rather than a proper exercise of discretion under 3126(b). Thus, the BOPs actions contravened Congressional intent and the prin ciples of federalism and separation of powers.

141 Reynoldss arguments fail because they are contrary to Taylor, in which we upheld the BOP s authority to decline to make a nunc pro tunc designation of a state prison notwith standing a state courts contrary order. 284 F.3d at 1149. In Taylor, a defendant in state pre-trial custody appeared before a federal court on a writ adprosequendum, and was sentenced to a term of imprisonment on a federal offense. Id. at 1146. Returned to state custody, the defendant was sentenced to a term of state imprisonment to run concurrently with the fed eral sentence. Id. The federal sentencing court denied the defendants request for an order giving him credit for time served in state prison, and also declined to recommend that the BOP issue a nunc pro tunc order designating the state prison as the place to serve his federal sentence. Id. Affirming

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the denial of the defendants petition for habeas corpus, we held that 3584(a) did not impose any obligation on the BOP to implement a states concurrency order. Id. at 1149-50. Fur ther, we held that the BOP had discretion under 362 1(b) and its Program Statement to decline to issue such an order, explaining that we cannot lightly second guess a deliberate and informed determination by the agency charged with administering federal prison policy. Id. at 1149. Reynolds attempts to distinguish Taylor on the ground that the federal sentencing court in that case expressly stated its intent that the federal sentence run consecutively to the state sentence. Reynolds argues that under such circumstances, the state courts intent cannot bind a federal court, and the BOP was required to follow the federal courts order that its sen tence run consecutively. Because the federal court in his case did not make such an order, Reynolds asserts that the state courts order bound the BOP. [5] We disagree. Notwithstanding factual differences, Tay lor forecloses Reynoldss argument. As in this case, the defendant in Taylor argued that the BOP, in administering a federal sentence, should not be allowed to disregard a state courts alleged order of concurrency, and that the BOPs action was invalid because it was preempting what he claims are rights of the state court. Id. at 1151. We rejected those arguments as having no persuasive support in constitutional principle, consistent practice or established case law. Id. Given our ruling in Taylor, we must conclude that the BOP had discretion to reject Reynoldss request for a nunc pro tunc designation notwithstanding the state courts order, and such a determination was not inconsistent with 3584(a). In light of this conclusion, we need not reach Reynoldss argument that the BOP is powerless to designate a state prison nunc pro tune on its own authority in light of contrary Con gressional intent, separation of powers principles, and federal ism concerns. Because the BOP did not order a nunc pro tune

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designation of the state prison in this case, and it is that failure that Reynolds here challenges, any question about the scope of the BOPs authority to do so is not properly before us. In any event, Taylor held that such a designation by the BOP is plainly and unmistakably within the BOPs discretion. Id. at 1149. 2 Although it is not entirely clear, Reynoldss second argu ment appears to be that, but for the historical accident that Reynoldss federal sentence was imposed first, his state and federal sentences would have run concurrently by force of law. Under these circumstances, Reynolds argues, the BOPs denial of Reynoldss requested nunc pro tunc designation was arbitrary, capricious, an abuse of discretion, and contrary to law. Reynolds provides three reasons why his sentences should have been imposed in a different order, and should now be deemed to run concurrently. First, Reynolds claims that his original arrest in October 2002 was under a federal warrant, and the district court erred in holding otherwise. Therefore, Reynolds argues, he was in primary federal jurisdiction at the time the federal district court issued its sentence and he should have served the federal sentence first. If this had occurred, Reynolds would then have received credit for the entire federal sentence because the state court ordered the state sentence to be served concur rently. We need not reach the question whether it would be an abuse of discretion to deny a nunc pro tune designation under these circumstances, because here the district court did not clearly err in determining that Reynolds was under the pri mary jurisdiction of the state at the time of his federal convic tion. Normally, the sovereign which first arrests an individual acquires priority of jurisdiction for purposes of trial, sentencing, and incarceration. United States v. Warren,

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610 F.2d 680, 684-85 (9th Cir. 1980). Although both state and federal arrest warrants were outstanding for Reynolds, his arresting officers did not receive a copy of the federal arrest warrant until 9:00 am. on October 4, five hours after Reyn olds was booked into Madison County jail. Additionally, the federal district court brought Reynolds before it pursuant to a writ of habeas corpus ad prosequendum, a further indication that the state had primary jurisdiction over him. See, e.g., Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991); Gunton v. Squier, 185 F.2d 470, 470-71 (9th Cir. 1950). More over, even were we to assume that a states prosecutorial delay might result in an abdication of primary jurisdiction, see Buggs v. Crabtree, 32 F. Supp. 2d 1215, 1220 (D. Or. 1998), no such delay occurred here. Reynolds was taken into federal custody less than sixty days after his arrest and was sentenced by state court approximately two months after being returned to federal custody. Reynoldss second argument is that the BOP acted arbitrar ily and capriciously in failing to consider that the federal sen tence would have run concurrently with the state sentence under 5G1.3 if the state sentence had been imposed first. Reynolds explains that had the state sentence been pending when he appeared before the district court, 5G1.3 would have led the federal sentencing court to impose a federal sen tence that ran concurrently with the remaining undischarged term of state imprisonment. According to Reynolds, the BOPs failure to take into account this direction constituted an abuse of discretion and violated the Sentencing Commissions policy direction that, where there is an undischarged term of imprisonment, the district court should exercise its discretion to achieve a reasonable punishment for the offense. 5G1.3(c). This argument is unavailing, even assuming the state courts sentence was for relevant conduct and otherwise met the criteria in 5G1.3. The record establishes that the BOP carefully and thoroughly reviewed the factors set forth

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in its Program Statement before denying Reynoldss request. There is no evidence that Reynolds asked the BOP to consider 5G1 .3 in connection with his request for nunc pro tunc des ignation. Even if Reynolds had brought 5G1.3 to the BOPs attention, that Guideline is inapplicable by its own terms, see supra; the BOP s failure to follow an inapplicable Guideline is not an abuse of discretion.

[6] Finally, Reynolds asserts that the BOP acted arbitrarily

and capriciously because it incorrectly interpreted the federal courts silence as intent that Reynoldss state and federal sen tences run consecutively. Had the BOP not made such an error, Reynolds argues, it would have issued a nunc pro tunc designation. However, we see no error on the BOPs part. Section 3584(a) explicitly states that multiple terms of state and federal imprisonment run consecutively absent a court order that the sentences run concurrently. 18 U.S.C. 3584(a). Here there was no federal court order indicating that Reynoldss sentences should run concurrently. By deny ing Reynoldss request, the BOP did no more than enforce the plain terms of 3584(a). Accordingly, the BOP acted within its broad discretion under 3621(b) and the Program State ment to grant or deny a request for nunc pro tunc relief after full and fair consideration. AFFIRMED.

W. FLETCHER, Circuit Judge, concurring: I would also affirm the district courts denial of the writ of habeas corpus. The federal Bureau of Prisons (BOP) acted properly in construing the sentencing judges answer to the BOPs letter, in which the judge refused to express a prefer ence, as an indication that a consecutive sentence was appro priate. I write separately to express my concern that the

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BOP s nunc pro tunc practice raises serious separation of powers questions. I. Calculation of Sentences

In order to understand why the BOPs practice raises sepa ration of powers concerns, it is necessary to discuss at some length the manner in which sentences are determined and cal culated. A federal judge determines the length of a term of imprisonment for a person convicted of a federal crime. See 18 U.S.C. 3551, 3553. Included in that determination is a decision whether terms of imprisonment will be served con currently or consecutively. When choosing between concur rent and consecutive terms, a federal judge must consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in [18 U.S.C.] section 3553(a). 18 U.S.C. 3584(b). The factors set forth in 3553(a) include the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence to reflect the seriousness of the offense, to pro mote respect for the law, and to provide just punishment. to afford adequate deterrence ; to protect the public from further crimes of the defendant; and the need to avoid unwarranted sentence disparities.
. . .

The federal Bureau of Prisons incarcerates persons con victed of federal crimes. See 18 U.S.C. 3621. Among its other responsibilities, the BOP calculates the length of time a person spends in federal prison in fulfilling the sentence imposed by a federal judge. In United States v. Wilson, 503 U.S. 329 (1992), the Supreme Court held that the BOP is responsible for calculating the amount of credit, if any, a fed eral prisoner should receive based on time previously served under another sentence, including a sentence served in state prison. See 18 U.S.C. 3585(b) (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 as a result of any other charge for
. . .

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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.). A rule of construction for determining whether a federal sentence is concurrent or consecutive with another sentence is provided in 18 U.S.C. 3584(a): If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprison ment is imposed on a defendant who is already sub ject to an undischarged term of imprisonment, the terms may run concurrently or consecutively 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 consecu tively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
.

The first sentence of 3584(a) has two clauses that address distinct situations. The first clause refers to multiple terms of imprisonment imposed on a defendant at the same time; this clause applies when a judge sentences a defendant in the same criminal proceeding for multiple violations of federal law. The second sentence of 3584(a) provides that in this situa tion, if the federal judge fails to specify either concurrent or consecutive sentences, the sentences are concurrent. The sec ond clause of the first sentence refers to a term of imprison ment imposed when a defendant has already been sentenced in a separate state or federal proceeding, and when that earlier term has not yet been fully served. The third sentence of 3584(a) governs this situation, providing that if the federal judge fails to specify either a concurrent or consecutive sen tence, the federal sentence is consecutive. The third sentence may be read more broadly to govern, in addition, the situation in which the federal judge imposes a sentence and another

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sentence is imposed afterwards. In these situations, if the fed eral judge fails to specif, the sentences are consecutive. The federal courts of appeals have split on the question of whether a federal sentencing judge has the authority to dictate whether a sentence is to run concurrently or consecutively with respect to a yet-to-be imposed sentence. The Eighth, Tenth and Eleventh Circuits have held that the judge has this authority. See United States v. Mayotte, 249 F.3d 797, 798-99 (8th Cir. 2001) (per curiam); United States v. Williams, 46 F.3d 57, 58-59 (10th Cir. 1995); United States v. Ballard, 6 F.3d 1502, 1510 (11th Cir. 1993). The Second, Fourth, Sixth and Seventh Circuits, as well as our own, have held that the judge does not have this authority. See United States v. Donoso, 521 F.3d 144, 149 (2d Cir. 2008); United States v. Smith, 472 F.3d 222, 225-26 (4th Cir. 2006); Taylor v. Saw yer, 284 F.3d 1143, 1148 (9th Cir. 2002) (citing United States v. Neely, 38 F.3d 458, 460-6 1 (9th Cir. 1994); United States v. Clayton, 927 F.2d 491, 492 (9th Cir. 1991)); Romandine v. United States, 206 F.3d 731, 737-38 (7th Cir. 2000); United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998). The Fifth Circuit has held that the judge has this authority with regard to a yet-to-be imposed state sentence, but not a federal sentence. See United States v. Quintana-Gomez, 521 F.3d 495, 498 (5th Cir. 2008); United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). In circuits where the federal sentencing judge does not have the authority to dictate whether the federal sentence is to run concurrently or consecutively with a yet-to-be imposed sen tence, the default is that the two sentences run consecutively. See Romandine, 206 F.3d at 737-38; see also Taylor, 284 F.3d at 1149. The same default result is achieved in circuits where the judge has the authority, if the judge fails to specify a con current or consecutive sentence. See 18 U.S.C. 3584(a) (third sentence). The default result can frustrate the desire of

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a federal sentencing judge. This is clearly so in circuits wherc the federal sentencing judge would impose a concurrent sen tence with the yet-to-be imposed sentence but has no author ity to do so. This can also be so in circuits where the federal sentencing judge has the authority to impose a concurrent sen tence but at the time of sentencing has insufficient informa tion about the circumstances of the other crime and the yet-tobe imposed sentence for that crime to decide whether a con current sentence is appropriate. If the second sentencing judge is a federal judge, the desire of the initial sentencing judge to impose a concurrent sentence may sometimes be effectuated. In that circumstance, the sec ond judge has the authority to impose a sentence that will run concurrently with the first. The second judge may or may not have the same view of the case, and of the appropriate sen tence, as the first judge. But at least the second judge will be applying the same federal sentencing criteria as the first judge, and may reach the same answer the first judge would have reached. When the second sentencing judge is a state judge, the desire of the initial sentencing judge to impose a concurrent sentence may also be effectuated; but that possibility is more remote than in the case where the second sentencing judge is federal. The problem arises when the state authorities have primary jurisdiction but the federal sentence is imposed first. The federal circuits are unanimous in holding that a state judge has no authority to require that a state sentence of imprisonment be served concurrently with a previously imposed federal sentence. See Taylor, 284 F.3d at 115 1-52 ([T]he BOP does not need to abide by a states express desire to have its sentence run concurrent to a previously imposed federal sentence.); see also Fegens v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007) (It is well-settled that the state courts intent is not binding.); Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 73 (2d Cir. 2005). That is, there is nothing a state court judge can do to require federal authori

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ties to credit time served on a state sentence against a federal sentence. The state judge may take a previously imposed fed eral sentence into account by imposing a shorter state sen tence than the judge otherwise would, thereby achieving a de facto concurrent sentence. But the state judge, for reasons of state law or policy, may be unable to do so even if that judge so desires. So far as I am aware, there are no statistics showing how often a federal sentencing judge desires to impose a sentence that will run concurrently with a yet-to-be-imposed sentence but is unable to achieve that result. Similarly, I am not aware of statistics showing how often, in cases in which the first judge is federal and the second judge is state, both judges desire to impose concurrent sentences but neither judge is able to achieve that result. But even without reliable statistics, it is obvious that under the law, at least as so far described, there is a problem in effectuating the sentencing intention of a federal judge when he or she is the first judge to impose sentence. In 1991, the Third Circuit devised an ingenious solution to the problem posed when the state has primary jurisdiction but the federal sentence is imposed before the state sentence. In Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991), the court interpreted 18 U.S.C. 362 1(b) to permit the federal BOP to issue a nunc pro tunc order designating state prison as the place for service of a federal sentence, thereby achieving a concurrent state and federal sentence beginning on the date specified in the order. Section 3621(b) provides:
Place of imprisonment.The Bureau of Prisons shall designate the place of the prisoners imprison ment. The Bureau may designate any available penal or correctional facility that meets minimum stan dards of health and habitability established by the

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Bureau, whether maintained by the Federal Govern ment or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering (1) the resources of the facility contem plated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to imprisonment was deter mined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.

In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or eco nomic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal correctional facility to another. The Bureau shall make available appropri ate substance abuse treatment for each prisoner the

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Bureau determines has a treatable condition of sub stance addiction or abuse. 18 U.S.C.

3621(b).

On its face, 362 1(b) appears to direct the BOP to deter mine only where a prisoner may be housed. The BOP may designate a non-federal facility, so long as that facility meets minimum standards of health and habitability, and so long as the BOP has determined that the facility is appropriate and suitable. Nowhere does 362 1(b) explicitly authorize the BOP, in designating a non-federal facility, to determine nunc pro tune that time served in a state facility pursuant to a state sentence has been served concurrently with a federal sentence that was imposed earlier. However, the Third Circuit in Barden read 3621(b) to provide that authorization. In Barden, habeas petitioner Barden sought credit against his federal sentence for bank robbery, which he was then serving, for time already served in state prison for robbery, rape and kidnaping. The federal BOP refused, stating that it had no authority to grant such credit. The Third Circuit dis agreed, writing: We agree with Barden that the federal government has the statutory authority [under 18 U.S.C. 3621(b)] to make the nunc pro tune designation Barden desires. We do not pass upon Bardens contention that he is entitled to a favorable exercise of the broad discretion the Federal Bureau of Prisons (Bureau) has in acting on his request. Instead, we hold only that the federal authorities have an obliga tion, on the peculiar facts before us, to look at Bar dens case and exercise the discretion the applicable statute grants the Bureau to decide whether the state prison in which he served his sentence should be designated as a place of federal confinement nunc pro tune.
. . .

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921 F.2d at 478. The BOP responded to Barden by instituting a nunc pro tunc sentencing procedure set forth in its Program Statements 5160.05 and 5880.28.

The Supreme Court has never endorsed the nune pro tune procedure authorized by the Third Circuit in Barden. A year after the Third Circuits decision in Barden, the Court held in United States v. Wilson, 503 U.S. 329 (1992), that the BOP has the authority under 18 U.S.C. 3585(b) to perform the mathematical computation involved in determining the time a federal prisoner should be credited based on time served on another sentence. However, the nunc pro tune procedure authorized in Barden goes well beyond the calculation involved in Wilson. Under the nunc pro tune procedure, the BOP does not merely perform the computation involved in determining how much a federal sentence should be reduced on account of time already served under a separate concurrent sentence. Rather, under the nunc pro tune procedure, the BOP makes the foundational decision of whether the separate sen tence should be concurrent.
II. Reynoldss Arguments on Appeal

As the majority discusses, Reynolds makes two arguments on appeal. One of these arguments is that the BOP erred in denying Reynolds credit against his federal sentence for time served in state custody. The other is that in denying Reynolds credit, the BOP made a sentencing decision reserved to the judicial branch and thereby violated the separation of powers. A. Denial of Credit Against Federal Sentence

In support of his argument that the BOP erred in denying him credit, Reynolds contends that federal authorities had pri mary jurisdiction, that U.S.S.G. 5G1.3 required the nune pro tune designation, and that the BOP wrongly construed the federal judges silence in response to the BOPs letter as an indication that the federal sentence should be served consecu

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tively. I agree with the majority that the district court did not clearly en in determining that the state had primary jurisdic tion over Reynolds, and that U.S.S.G. 5Gl.3 is not applica ble. As to whether the BOP wrongly construed the federal courts silence, I agree with the majority that the BOP did not en in construing the sentencing courts silence as expressing an intent that the terms run consecutively. I write separately, however, to emphasize my concern with the statutory scheme and the consequences of the majoritys holding. In denying Reynoldss request for a nunc pro tunc designa tion, the BOP wrote, The federal judgment was silent regard ing the execution of your service. As such, multiple terms of imprisonment imposed at different times are deemed consecu tive unless the court dictates otherwise. Reynolds argues that the BOP improperly construed the federal sentencing judges silence. He writes in his brief, There is simply no support for the BOP s conclusion that the sentencing courts silence denoted an intent for consecutive terms of imprisonment. The BOP construes a federal judges silence at the time of sentencing to indicate that the judge intends the federal sen tence to be consecutive to a yet-to-be-imposed sentence. As I noted above, the third sentence of 3584(a) provides a rule of construction for a sentence imposed by a federal judge. The third sentence provides, Multiple terms of imprisonment imposed at different times run consecutively unless the [fed eral] court orders that the terms are to run concurrently. As discussed above, a broad but permissible reading of this third sentence is that it includes not only a situation in which the federal term of imprisonment is imposed afler a previously imposed term of imprisonment that is still being served, but also a situation in which the other term of imprisonment is yet to be imposed. In Program Statement 5880.28, the BOP has so interpreted this sentence. Section 3(e) of Program State ment 5880.28 provides, On occasion, a federal court will

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order the federal sentence to run concurrently with or consec utively to a not yet imposed term of imprisonment. If the federal sentence is silent, or ordered to run consecutively to the non-existent term of imprisonment, then the federal sen tence shall not be placed into operation until the U.S. Mar shals Service or the Bureau of Prisons gains exclusive custody of the prisoner.
. . .

In jurisdictions where the federal sentencing judge has the authority to choose between a federal sentence that will run concurrently with or consecutive to a yet-to-be-imposed sen tence, the operation of 3584(a) and Program Statement 5880.28 is quite straightforward. The BOP can look to the sentencing proceeding in federal court, apply the rule of con struction provided by the third sentence of 3584(a) and the Program Statement, and determine the intent of the federal sentencing judge. Those jurisdictions include the Fifth, Eighth, Tenth and Eleventh Circuits. See Mayotte, 249 F.3d at 798-99; Williams, 46 F.3d at 58-59; Ballard, 6 F.3d at 1510; Brown, 920 F.2d at 1217. But in jurisdictions where the federal sentencing judge does not have the authority to choose between a concurrent and consecutive sentence with respect to a yet-to-be-imposed sen tence, the rule of construction cannot be sensibly applied to what the judge says, or does not say, at the time of sentencing. Those jurisdictions include the Second, Fourth, Sixth, Seventh and Ninth Circuits. See Donoso, 521 F.3d at 149; Smith, 472 F.3d at 225-26; Taylor, 284 F.3d at 1148 (citing Neely, 38 F.3d at 460-61; Clayton, 927 F.2d at 492); Romandine, 206 F.3d at 737-38; Quintero, 157 F.3d at 1039-40. In those juris dictions, it makes little sense to rely on the silence of the fed eral sentencing judge at the time of sentencing to determine that judges intent in choosing whether the federal sentence is to be concurrent or consecutive, because the judge in those jurisdictions has no authority to make that choice at the time of sentencing. Thus, there is no reason for the judge to say anything. Even if the judge would like to impose a concurrent

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REYNOLDS V. THOMAS

sentence, a statement to that effect would have no legal conse quence. In a situation where a request for a nunc pro tune designa tion is made, the subsequent state sentence has already been imposed. At least in a jurisdiction in which the federal judge has no authority to choose between a concurrent and consecu tive sentence at the time of sentencing, the BOP sends a letter asking the judge whether he or she now wants the federal sen tence to run concurrently or consecutively. See Program Statement 5160.05 9(b)(4)(c) (In making the determination [whether to grant a request for nunc pro tune designation] the [Regional Inmate Systems Administrator of the BOP] will send a letter to the sentencing court. inquiring whether the court has any objections [to the designation].). This request by the BOP allows the federal sentencing judge in such juris dictions, after the state sentence has been imposed, to say whether the federal sentence should be concurrent or consecu tive. (The record before us is not clear on the point, but it is possible that the BOP asks the federal sentencing judge this question in all jurisdictions, even those jurisdictions in which the judge has the authority, at the time of sentencing, to choose whether the sentence would be concurrent or consecu tive. But see id. 9(b)(4)(e) (No letter need be written if it is determined that a concurrent designation is not appropri ate.).) Once the BOP receives a response from the federal sentencing judge, it takes that response into account in decid ing whether to grant the nunc pro tune request. See id. 9(a) (Concurrent service of federal and non-federal sentences in a non-federal institution occurs when the [BOP] designates a non-federal institution for service of the federal sentence.); 9(b) (Normally, designating a non-federal institution for the inmate is done when it is consistent with the federal sentenc ing courts intent.).
. .

In Reynoldss case, the federal sentencing judge responded to the BOPs letter by stating that he had no comment on whether the federal sentence should be concurrent or consecu

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6839

tive. In its denial of Reynoldss request, the BOP construed the judges silence as an indication that the federal sentence should be served consecutively. The BOPs statement did not cite 3584(a) but tracked both its language and its rule of construction. In implicitly relying on 3584(a) in construing the judges silence, the BOP construed the third sentence of 3584(a) to include not only the judges silence at the time of imposing sentence, but also his later silence when asked whether a nunc pro tune designation was appropriate. That is, the BOP construed the phrase unless the [federal] court orders that the terms are to run concurrently to apply not only to silence at the time of sentencing but also to silence in response to a letter of inquiry from the BOP. This broad read ing of the third sentence of 3584(a) is not an implausible construction. I would therefore conclude that the BOP acted properly in construing the sentencing judges answer to the BOPs letter, in which the judge refused to express a prefer ence, as an indication that a consecutive sentence was appro priate. B. Separation of Powers

Reynolds argues that in denying him credit towards his fed eral sentence for time served on his state sentence, the BOP violated the separation of powers. Reynolds first contends that the BOP could not disregard the express view of the state court judges that his state sentences should be served concur rently with his federal sentence. I agree with the majority that this argumentin reality a federalism rather than separation of powers argumentis foreclosed by our decision in Taylor. We considered the full range of federalism arguments in Tay lor when we held that the federal government is not obliged to give effect to the sentencing intentions of state court judges. See 284 F.3d at 1151-53. Reynolds also contends that in denying a nunc pro tune designation, the BOP arrogated unto itself a sentencing deci sion that properly belongs to the federal judiciary. The major-

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REYNOLDS V.

THOMAS

ity declines to address this argument. It holds that any separation of powers arguments about the BOPs nunc pro tunc authority are not properly before the court because the BOP (initially) declined to grant a nunc pro tune designation in this case, and that the arguments are foreclosed by Taylor in any event. The petitioner in Taylor, however, did not argue that the BOP s practice of granting and denying nunc pro tune designations violated separation of powers, and our decision in his case did not purport to decide that issue. I therefore regard the separation of powers issue as presenting an open question in this circuit.

I agree with the majority that, on the record before us, the separation of powers question is not squarely presented in this case. However, because the majoritys opinion and our deci sion in Taylor may be erroneously read as foreclosing a sepa ration of powers argument, I write separately to discuss the argument, and to join other circuits in requesting that Con gress address the issue through legislation. Two of our sister circuits have addressed the separation of powers argument and have voiced doubts about the constitu tionality of the BOPs practice. In Abdul-Malik v. HawkSawyer, 403 F.3d 72, 76 (2d Cir. 2005), the Second Circuit wrote: A separation of powers issue arises when the same branch of government that prosecutes federal prison ers determines concurrency in lieu of the judge. Fed eralism concerns are implicated because the federal BOP is given the effective authority to enforce (or not) a state courts determination that a state sen tence should run concurrently. Given the divergent readings of the statutory scheme in the various cir cuits, the open questions as to how to treat prisoners sentenced first in the federal and then in the state court, and the phenomenon (in some circuits) that neither the state nor the federal court can run these

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THOMAS

6841

concurrently, we respectfully invite congressional consideration of these statutes. See also Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007) ([W]c agree with the Second Circuit that Con gress should examine the issue because it implicates impor tant federalism and separation of powers concerns (citing Abdul-Malik, 403 F.3d at 76)).
. . .

The separation of powers argument is stated in summary form in the first sentence of the passage just quoted from the Second Circuits decision in Abdul-Malik. In a slightly more expanded form, the argument is as follows: The task of the executive branch of the federal government is to prosecute those accused of federal crimes and incarcerate those who are convicted and sentenced to prison terms. The task of the judi cial branch is to preside over criminal proceedings and impose sentence upon those who are convicted. A decision whether a federal sentence should run concurrently or consec utively is a sentencing decision that should be made by a member of the judicial branch. A decision whether to grant a nunc pro tune designation has the effect of determining whether a federal sentence is served concurrently or consecu tively. Therefore, a decision whether to grant a nunc pro tune request is a sentencing decision that properly belongs to a member of the judicial branch. The BOP is part of the execu tive branch, so a decision whether to grant a nunc pro tune request does not properly belong to the BOP. There is a great deal not to like about the nune pro tune procedure followed by the BOP. It is a jerry-built, ad hoc sys tem imposed upon the BOP by the Third Circuit in Barden, based on a questionable reading of 18 U.S.C. 3621(b). One may easily understand what prompted the Third Circuits decision in Barden: Without Barden or something like it, some federal prisoners would serve consecutive federal and state sentences despite the fact that both the federal and state sentencing judges desired to impose concurrent sentences. But

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REThOLDS V. THOMAS

under Barden, an important sentencing decision may be made by the executive rather than the judicial branch. On the facts of the case before us, I would hold that there has been no separation of powers violation. In this case, the BOP asked the federal sentencing judge whether he wanted Reynoldss sentence to be concurrent with or consecutive to the state sentences. When the federal judge declined to state a preference, the BOP used a permissible rule of construction, based on 3584(a), to conclude that the federal judges silence meant that Reynoldss sentence should be consecutive. (Later, following another nunc pro tune request by Reynolds, the BOP again solicited the federal judges view. The judge expressed that he had no objection, and the BOP granted the request.) In this circumstance, I would conclude that the BOPs earlier denial of Reynoldss request for a nunc pro tune designation was based on a permissible interpretation of what the federal sentencing judge intended, and that its denial thus did not violate separation of powers. However, I note that, in responding to nunc pro tune requests, the BOP may not always abide by the intentions of federal sentencing judges. For example, BOP Program State ment 5160.05 9(b) provides, Normally, designating a nonfederal institution for the inmate is done when it is consistent with the federal sentencing courts intent. (Emphasis added.) The word normally indicates that the BOP will usually, but not always, abide by the preference of the federal sentencing judge. Further, in its letter to Reynoldss federal sentencing judge, the BOP wrote, It is the preference of the Bureau that the Federal Sentencing Court be given an opportunity to state its position with respect to a retroactive designation, which, while not binding, can be helpful in our determination to grant or deny the request. (Emphasis added.) The BOPs use of the phrase while not binding, indicates that the BOP does not believe that it is required to abide by the preference of the sentencing judge. Finally, it is possible that at least in some circumstances the BOP does not solicit the view of the federal

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6843

sentencing judge at all. See Program Statement 5160.05 9(b)(4)(e) (No letter need be written [to the sentencing judge] if it is determined that a concurrent designation is not appropriate.). However, we do not have before us a case in which the BOP has not solicited the view of the sentencing judge or, having done so, has disregarded that view. III. Request to Congress

In view of the questionable interpretation of 362 1(b) on which Barden was based, the ambiguity of 18 U.S.C. 3584(a), and the serious constitutional questions posed by the BOPs nunc pro tunc practice implemented pursuant to Barden, I would join the Second and Eighth Circuits in respectfully requesting Congress to give its careful attention to the issues raised by the imposition of overlapping federal and state sentences.

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FILED
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AUG 172010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CHARLES LEE REYNOLDS, Petitioner Appellant,

-

No. 08-358 10 D.C. No. 3:07-CV-01244-ST District of Oregon, Portland

V.

J. E. THOMAS, warden, ORDER Respondent Appellee.

-

Before:

W. FLETCHER, BEA and IKUTA, Circuit Judges.

Appellants Petition for Rehearing and Petition for Rehearing En Bane are DENIED.

App. 51

 3584

TITLE 18CRIMES AND CRIMINAL PROCEDURE

Page 700

Subsec. (e)(4). Pub. L. 102322, 110505(2)(A), sub stituted defendant for person. Subsecs. (g) to (i). Pub. L. 103322, 110505(3), added subseos. (g) to (i) and struck out former subsec. (g) wbicb read as follows: (g) POsSESsION OF CONTROLLED SUB5TAEcE5.If tbe defendant is found by tbe court to be in tbe possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less tban one-third of the term of supervised release. 1990Subsec. (d)(2). Pub. L. 101047, 3589(1), inserted a comma after 3553(a)(2)(B). Subsec. (e)(2) to (5). Pub. L. 101647, 3589(2)(A)(C), struck out or at end of par. (2), substituted ; or for period at end of par. (3), and redesignated par. (5) as (4). 1988Subsec. (d). Pub. L. 100090, 7303(b)(1), inserted and that the defendant not possess illegal controlled substances before period at end of first sentence. Pub. L. 100690, 7305(b)(1), substituted (b)(20) for (b)(l9) in concluding provisions. Subsec. (d)(1). Pub. L. 100690, 7108(a)G), inserted (a)(2)(C), after (a)(2)(D),. Subsec. (d)(2). Pub. L. 100690, 7108(a)(2), which di rected that (a)(2)(C), be inserted after (a)(2)(B),, was executed by inserting (a)(2)(C), after (a)(2)(B) as the probable intent of Congress, because no comma appeared after (a)(2)(B). Subsec. (e). Pub. L. 100690, 7108(b)(1), inserted (a)(2)(C), after (a)(2)(B), in introductory provi sions. Subsec. (e)(2). Pub. L. 100690, 7l08(b)(2), inserted or after supervision;. Subsec. (e)(3). Pub. L. 100690, 7305(b)(2)(A), which di rected amendment of par. (3) by striking or at the end could not be executed because of the intervening amendment by Pub. L. 100690, 7108(b)(3), (4). See below. Pub. L. 100690, 7108(b)(3), (4), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: treat a violation of a condition of a term of supervised release as contempt of court pursuant to section 401(3) of this title; or. Subsec. (e)(4). Pub. L. 100690, 7305(b)(2)(B), which di rected amendment of par. (4) by striking the period at the end and inserting ; or could not be executed be cause subsec. (e) did not contain a par. (4) after the in tervening amendment by Pub. L. 100690, 7l08(b)(4). See below. Pub. L. 100690, 7108(b)(4), redesignated par. (4) as (3). Subsec. (e)(5). Pub. L. 100690, 7305(b)(2)(C), added par. (5). Subsec. (g). Pub. L. 100690, 7303(b)(2), added subsec. (g). 1987Subsec. (b)(1). Pub. L. 100182, 8(1), substituted five years for three years. Subsec. (b)(2). Pub. L. 100182, 8(2), substituted three years for two years. Subsec. (b)(3). Pub. L. 100182, 8(3), inserted (other than a petty offense) after misdemeanor. Subsec. (c). Pub. L. 100182, 9, inserted (a)(2)(C),. Subsec. (e)(l). Pub. L. 100182, 12(1), inserted pursu ant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation,. Subsec. (e)(2). Pub. L. 100182, 12(2), struck out after a hearing, before extend a term and inserted the provisions of the Federal Rules of Criminal Proce dure relating to the modification of probation and after pursuant to. Subsec. (e)(4). Pub. L. 100182, 25, inserted except that a person whose term is revoked under this para graph may not be required to serve more than 3 years in prison if the offense for which the person was con victed was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony before Commission at end. 1986Subsec. (a). Pub. L. 99570, 1006(a)(1), inserted except that the court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute.
,

Subsec. (b). Pub. L. 99570, 1006(a)(2), substituted Except as otherwise provided, the for The. Subsec. (e). Pub. L. 99570, 1006(a)(3)(A), and Pub. L. 99646, 14(a)(l), amended section catchline identically, substituting conditions or revocation for term or conditions. Subsec. (e)(l). Pub. L. 99646, 14(a)(2), struck out previously ordered before and discharge. Subsec. (e)(4). Pub. L. 99570, 224(a)(3)(B)(D), added par. (4).
EFFEcTIVE DATE OF 1997 AMENDMENT

Amendment by Pub. L. 105119 effective 1 year after Nov. 26, 1997, see section llS(c)(l) of Pub. L. 105119, set out as a note under section 14071 of Title 42, The Public Health and Welfare.
EFFEcTIVE DATE OF

1988 AMENnMENT

Amendment by section 7303(b) of Pub. L. 100690 ap plicable with respect to persons whose probation, su pervised release, or parole begins after Dec. 31, 1988, see section 7303(d) of Pub. L. 100690, set out as a note under section 3563 of this title.
EFFECTIVE DATE OF

1987 AMENDMxNT

Amendment by Pub. L. 100182 applicable with re spect to offenses committed after Dec. 7, 1987, see sec tion 26 of Pub. L. 100182, set out as a note under sec tion 3006A of this title.
EFFECTIVE DATE OF

1986 AMENDMENTS

Section 14(b) of Pub. L. 99646 provided that: The amendments made by this section [amending this sec tion] shall take effect on the date of the taking effect of section 3583 of title 18, United States Code [Nov. 1, 1987]. Section 1006(a)(4) of Pub. L. 99570 provided that: The amendments made by this subsection [amending this section] shall take effect on the date of the taking effect of section 3583 of title 18, United States Code [Nov. 1, 1987].
EFFEcTIvE DATE

Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this sec tion, see section 235(a)(l) of Pub. L. 98473, set out as a note under section 3551 of this title.

3584. Multiple sentences of imprisonment

(a) IMPOSITION OF CONCURRENT CE CONSECUTIVE TERMSIf multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defend ant who is already subject to an undischarged term of imprisonment, the terms may run con currently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objec tiVe of the attempt. Multiple terms of imprison ment imposed at the same time run concur rently unless the court orders or the statute mandates that the terms are to run consecu tiVely. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concur rently. (b) FACTORS TO BE CONSIDERED IN IMPOSING CCNCURRENT OR CONSECUTIVE TERMSThe court,

in determining whether the terms imposed are to be ordered to run concurrently or consecu tively, shall consider, as to each offense for
which a term of imprisonment is being imposed, the factors set forth in section 3553(a). (c) TREATMENT OF MULTIPLE SENTENCE AS AN AGGREGATEMultiple terms of imprisonment

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ssc.

3591

ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment. (Added Pub. L. 98-473, title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2000.)
EFFEcTIvE DATE

3599.

Counsel for financially unable defendants. PRIOR PROW5ION5

Section effective Nov. 1, 1987, and applicable only to

offenses committed after the taking effect of this sec

tion, see section 2ll(a)(l) of Pub. L. 98473, set out as a

note under section 1551 of this title.

A prior chapter 228 ( 1591 to 1599) relating to imposi tion, payment, and ccllection of fines was added by Pub. L. 98473, title II, 118(a), Oct. 11, 1984, 98 Stat. 2834, effective pursuant to section 21l(a)(1) of Pub. L. 98473 the first day of the first calendar month begin ning twenty-four months after Oct. 12, 1984. Pub. L. 98596, 12(a)(1), Oct. 10, 1984, 98 Stat. 3139, repealed

chapter 228 applicable pursuant to section 12(b) of Pub.

L. 98596 on and after the date of enactment of Pub. L. 98471 (Oct. 12, 1984). Section 218(i) of Pub. L. 98473 which repealed section 238 of Pub. L. 98473 on the same date established by section 235(a)(1) of Pub. L. 98473 was repealed by section 12(a)(9) of Pub. L. 98596.
AMENDMENTS

3585. Calculation of a term of imprisonment (a) COMMENcEMENT OF SENTENcEA sentence to a term of imprisonment commences on the date the defendant is received in custody await ing transportation to, or arrives voluntarily to commence service of sentence at, the official de tention facility at which the sentence is to be served. (b) CREDIT FOR PRIOR CusToDyA 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 sen tence 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 commis sion of the offense for which the sentence was imposed; that has not been credited against another sen tence. (Added Pub. L. 98473, title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2001.)
EFFEcTIvE DATE

2006Pub. L. 109177, title II, 222(b), Mar. 9, 2006, 129 Stat. 212, which directed amendment of the table of sections of the bill by adding item 3599 after item 3598, was executed by adding item 3599 to the table of sec tions for this chapter to reflect the probable intent of Congress.

3591. Sentence of death (a) A defendant who has been found guilty of (1) an offense described in section 794 or sec tion 2381; or (2) any other offense for which a sentence of death is provided, if the defendant, as deter mined beyond a reasonable doubt at the hear ing under section 3593 (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the vic tim; (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the of fense, such that participation in the act con stituted a reckless disregard for human life and the victim died as a direct result of the
act,

Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this sec tion, see section 235(a)(1) of Pub. L. 98471, set out as a note under section 1551 of this title.

3586. Implementation of a sentence of imprison ment The implementation of a sentence of imprison ment is governed by the provisions of sub chapter C of chapter 229 and, if the sentence in cludes a term of supervised release, by the provi sions of subchapter A of chapter 229. (Added Pub. L. 98473, title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2001.)
EFFEcTIVE DATE Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this sec tion, see section 215(a)(l) of Pub. L. 98471, set out as a note under section 1551 of this title.

CHAPTER 228DEATH SENTENCE

see.

shall be sentenced to death if, after consider ation of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sen tence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense. (b) A defendant who has been found guilty of
(1) an offense referred to in section 408(c)(1)

3591. 3592. 3591. 3594. 1595. 3596.

3597. 3598.

Sentence cf death.
Mitigating and aggravating factors to be con sidered in determining whether a sentence

of death is justified. Special hearing to determine whether a sen tence of death is justified.
Impcsition cf a sentence of death.

Review of a sentence of death.

Implementation of a sentence of death. Use of State facilities. Special provisions for Indian country.

of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under the conth tions described in subsection (b) of that sec tion which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B); or (2) an offehse referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C.
848(c)(1)), committed as part of a continuing

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TITLE 18CRIMES AND CRIMINAL PROCEDURE

3621

solely on the basis of inability to make pay ments because the defendant is indigent. (Added Pub. L. 98473, title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2006; amended Pub. L. 104132, title II, 207(c)(5), Apr. 24, 1996, 110 Stat. 1240.)
PRIoR PRovIsIoNs For a prior section 1614, applicable to offenses com mitted prior to Nov. 1, 1987, see note set out preceding section 1601 of tbis title. AMENDMENTs 1996Pub. L. 104232, 207(o)(5)(A), inserted or res titution after fine in section catobline. Subsec. (a). Pub. L. 104232, 207(c)(5)(B), inserted or restitution after fine. Subsec. (c). Pub. L. 104232, 297(c)(5)(C), added sub sec. (c). EFFECTIVE DATE OF 1996 AMENPMENT Amendment by Pub. L. 104132 to be effective, to ex tent constitutionally permissible, for sentencing pro ceedings in oases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104132, set out as a note under section 2248 of this title. EFFEcTIvE DATE Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this sec tion, see section 235(a)(1) of Pub. L. 98473, set out as a note under section 3551 of this title.

conditions., was executed by making amendment in item 3626 to reflect the probable intent of Congress. Prior to amendment, item 3626 read as follows: 3626. Appropriate remedies with respect to prison crowding. 1994Pub. L. 103322, title II, 20499(c), title XXXIII, 330010(3), Sept. 13, 1994, 108 Stat. 1828, 2143, transferred analysis of this subchapter to follow heading for this subchapter and added item 3626. 3621. Imprisonment of a convicted person (a) COMMITMENT TO CUsTODY OF BUREAU OF PEI5ONN.A person who has been sentenced to a term of imprisonment pursuant to the provi sions of subchapter D of chapter 227 shall be committed to the custody of the Bureau of Pris ons until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624. (b) PLACE OF IMPRISONMENTThe Bureau of Prisons shall designate the place of the pris oners imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habit ability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the ju dicial district in which the person was con victed, that the Bureau determines to be appro priate and suitable, considering (1) the resources of the facility con templated; (2) the nature and circumstances of the of fense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or cor rectional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to sec tion 994(a)(2) of title 28. In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at
any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau

3615. Criminal default Whoever, having been sentenced to pay a fine, willfully fails to pay the fine, shall be fined not more than twice the amount of the unpaid bal ance of the fine or $10,000, whichever is greater, imprisoned not more than one year, or both. (Added Pub. L. 98473, title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2006.)
PRioR PRovIsIoNs For prior sections 3615 to 3620, applicable to offenses committed prior to Nov. 1, 1987, see note set out preced ing section 3601 of this title.

EFFEcTIVE DATE
Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this sec tion, see section 235(a)(l) of Pub. L. 98473, set out as a note under section 3551 of this title. SUBCHAPTER CIMPRISONMENT SUBCHAPTER CIMPRISONMENT 5w. 3621. 3622. 1623. Imprisonment of a convicted person. Temporary release of a prisoner. Transfer of a prisoner to State authority. Release of a prisoner. Inapplicability of the Administrative Proce dure Act. Appropriate remedies with respect to prison conditions.
AMENDMENTs

3624.
1625.

3626.

1996Pub. L. 104134, title I, 191[(a)] [title VIII, 892(o)], Apr. 26, 1996, 119 Stat. 1321, 132170; renumbered title I, Pub. L. 104140, 1(a), May 2, 1996, 110 Stat. 1327, which directed that table of sections at beginning of subchapter C of this chapter be amended generally to read 3626. Appropriate remedies with respect to prison
so in original. Probably shoold not appear.

shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of sub stance addiction or abuse. (c) DELIVERY OF ORDER OF COMMITMENT. When a prisoner, pursuant to a court order, is placed in the custody of a person in charge of a penal or correctional facility, a copy of the order shall be delivered to such person as evi dence of this authority to hold the prisoner, and the original order, with the return endorsed thereon, shall be returned to the court that is
sued it. (d) DELIVERY OF PRISONER FOR COURT APPEAR

ANCE5.The United States marshal shall, with out charge, bring a prisoner into court or return him to a prison facility on order of a court of the United States or on written request of an at torney for the Government.

App. 54

 3621

TITLE 18CRIMES AND CRIMINAL PROCEDURE

Page 720

(e) SUBSTANCE ABUSE TREATMENT. (1) PHASE-INIn order to carry out the re quirement of the last sentence of subsection

(b) of this section, tbat every prisoner with a substance abuse problem have the opportunity to participate in appropriate substance abuse treatment, the Bureau of Prisons shall, sub ject to the availability of appropriations, pro vide residential substance abuse treatment (and make arrangements for appropriate aftercare) (A) for not less than 50 percent of eligible prisoners by the end of fiscal year 1995, with priority for such treatment accorded based on an eligible prisoners proximity to release date; (B) for not less than 75 percent of eligible prisoners by the end of fiscal year 1996, with priority for such treatment accorded based on an eligible prisoners proximity to release date; and (C) for all eligible prisoners by the end of fiscal year 1997 and thereafter, with priority for such treatment accorded based on an eli gible prisoners proximity to release date.
(2) INcENTIVE FOE PRISONERS SUCCESSFUL COMPLETION OF TREATMENT PROGRAM.

(5) DEFERLTIONS.AS used in this sub section (A) the term residential substance abuse treatment means a course of individual and group activities, lasting between 6 and 12 months, in residential treatment facilities set apart from the general prison popu lation (i) directed at the substance abuse prob lems of the prisoner; (ii) intended to develop the prisoners cognitive, behavioral, social, vocational, and other skills so as to solve the pris oners substance abuse and related prob lems; and (Hi) which may include the use of pharmacoptherapies, if appropriate, that may extend beyond the treatment period; (B) the term eligible prisoner means a prisoner who is (i) determined by the Bureau of Prisons to have a substance abuse problem; and (H) willing to participate in a residential substance abuse treatment program; and (C) the term aftercare means placement, case management and monitoring of the par ticipant in a community-based substance abuse treatment program when the partici pant leaves the custody of the Bureau of Prisons.
(6) COoRDINATIoN OF FEnERAL ASSISTANCE.

(A) GENERALLYAny prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a pro gram of residential substance abuse treat ment provided under paragraph (1) of this subsection, shall remain in the custody of the Bureau under such conditions as the Bu reau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shall periodically test the prisoner for substance abuse and discontinue such conditions on determining that substance abuse has recurred. (B) PERI0n OF cLSTonY.The period a pris oner convicted of a nonviolent offense re mains in custody after successfully complet ing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve. (3) REPORTThe Bureau of Prisons shall transmit to the Committees on the Judiciary of the Senate and the House of Representa tives on January 1, 1995, and on January 1 of each year thereafter, a report. Such report shall contain (A) a detailed quantitative and qualitative description of each substance abuse treat ment program, residential or not, operated by the Bureau; (B) a full explanation of how eligibility for such programs is determined, with complete information on what proportion of prisoners with substance abuse problems are eligible; and (C) a complete statement of to what extent the Bureau has achieved compliance with the requirements of this title. (4) AUTHORIEATION OF APPROPRIATIONS. There are authorized to carry out this sub section such sums as may be necessary for each of fiscal years 2007 through 2011.

The Bureau of Prisons shall consult with the Department of Health and Human Services concerning substance abuse treatment and re lated services and the incorporation of appli cable components of existing comprehensive approaches including relapse prevention and aftercare services. (f) SEX OFFENDER MANAGEMENT. (1) IN GENERALThe Bureau of Prisons shall make available appropriate treatment to sex offenders who are in need of and suitable for treatment, as follows: (A) SEX OFFENDER MANAGEMENT PRO GRAMS.The Bureau of Prisons shall estab lish non-residential sex offender manage ment programs to provide appropriate treat ment, monitoring, and supervision of sex of fenders and to provide aftercare during pre release custody.
(B) RESIDENTIAL SEX OFFENDER TREATMENT

PROGRAMSThe Bureau of Prisons shall es tablish residential sex offender treatment programs to provide treatment to sex offend ers who volunteer for such programs and are deemed by the Bureau of Prisons to be in need of and suitable for residential treat ment. (2) REGIONS.At least 1 sex offender manage ment program under paragraph (1)(A), and at least one residential sex offender treatment program under paragraph (1)(B), shall be es tablished in each region within the Bureau of Prisons. (3) AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated to the Bureau of Prisons for each fiscal year such
So in original. Probably ahould be pharmaootherapieo.

App. 55

Page 721

TITLE 18CRIMES AND CRIMINAL PROCEDURE

3622

sums as may be necessary to carry out this subsection.

(Added Pub. L. 98473, title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2007; amended Pub. L. 101647, title XXIX, 2903, Nov. 29, 1990, 104 Stat. 4913; Pub. L. 103322, title II, 20401, title III, 32001, Sept. 13, 1994, 108 Stat. 1824, 1896; Pub. L. 109162, title XI, 1146, Jan. 5, 2006, 119 Stat. 3112; Pub. L. 109248, title VI, 622, July 27, 2006, 120 Stat. 634.)
Pasoa PROVIsIONs

(b) participate in a training or educational program in the community while continuing in official detention at the prison facility; or (c) work at paid employment in the commu
nity while continuing in official detention at

the penal or correctional facility if (1) the rates of pay and other conditions of
employment will not be less than those paid

or provided for work of a similar nature in the community; and (2) the prisoner agrees to pay to the Bu
reau such costs incident to official detention

For a prior section 3621, applicable to offensss com mitted prior to Nov. 1, 1987, see note set out preceding section 3601 of this title.
AMENDMENTS

as the Bureau finds appropriate and reason

able under all the circumstances, such costs

2006Subsec. (e)(4). Pub. L. 109162, 1146(1), added par. (4) and struck out beading and text of former par.
(4). Text read as follows: There are authorized to be

to be collected by the Bureau and deposited in the Treasury to the credit of the appro priation available for such costs at the time such collections are made.
(Added Pub. L. 98473, title II, 212(a)(2), Oct. 12,

appropriated to carry out this subsection (A) 613,500,000 for fiscal year 1996; (B) $18,900,003 for fiscal year 1997; (C) 625,200,000 for fiscal year 1998; (B) $27,000,000 for fiscal year 1999; and (E) $27,900,000 for fiscal year 2000. Subsec. (e)(5)(A)(iii). Pub. L. 109162, 1146(2), added cl. (iii). Subsec. (I). Pub. L. 109248 added subsec. (f). 1994Subsec. (b). Pub. L. 193322, 32001(1), struck out
to the extent practicable, after The Bureau shall in concluding provisions. Pub. L. 103322, 20401, inserted In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to pris oners of high social or economic status. after subsec. (b)(5). Subsec. (e). Pub. L. t03322, 32001(2), added eubeec. (e).

1984, 98 Stat. 2007.)

PRIOR PROVISIONS For a prior section 3622, applicable to offenses com mitted prior to Nov. 1, 1987, see note set out preceding section 3601 of this title. EFFEcTIVE DATE Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this sec tion, see section 235(a)(t) of Pub. L. 98473. set out as a note under section 3551 of this title.

Ex. ORn. NO, 11755. PRISON LABOR Ex. Ord. No. 11755, Dec. 29, 1973, 39 F.R. 779, as amend ed by Ex. Ord. No. 12608, Sept. 9, 1987, 52 P.R. 34617; Ex. Ord. No. 12943, Dec. 13, 1994, 19 F.R. 64553, provided: The development of the occupational and educational skills of prison inmates is essential to their rehabilita tion and to their ability to make an effective return to free society. Meaningful employment serves to develop those skills. It is also true, however, that care must be exercised to avoid either the exploitation of convict labor or any unfair competition between convict labor and free labor in the production of goods and services. Under sections 3621 and 3622 of title 18. United States Code, the Bureau of Prisons is empowered to authorize

1990Subeec. (b). Pub. L. 101-647 inserted at end The

Bureau shall, to the extent practicable, make available appropriate substance abuse treatment for each pris

oner the Bureau determines has a treatable condition of substance addiction or abuse.
EFFEcTIVE DATE Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of thie sec tion, see section 235(a)(t) of Pub. L. 98473, set out as a note under section 3551 of this title.

3622. Temporary release of a prisoner The Bureau of Prisons may release a prisoner from the place of his imprisonment for a limited period if such release appears to be consistent with the purpose for which the sentence was im posed and any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2), if such release otherwise appears to be consistent with the public interest and if there is reasonable cause to believe that a pris oner will honor the trust to be imposed in him, by authorizing him, under prescribed conditions, to (a) visit a designated place for a period not to exceed thirty days, and then return to the same or another facility, for the purpose of (1) visiting a relative who is dying; (2) attending a funeral of a relative; (3) obtaining medical treatment not other wise available; (4) contacting a prospective employer; (5) establishing or reestablishing family or cummunity ties; or (6) engaging in any other significant activ ity consistent with the public interest;

Federal prisoners to work at paid employment in the community during their terms of imprisonment i.mder
conditions that protect against both the exploitation of convict labor and unfair competition with free labor.

Several states and other iurisdictions have similar laws or regulations under which individuals confined for violations of the laws of those places may be au thorized to work at paid employment in the commu nity.
Executive Order No. 325A, which was originally issued by President Theodore Roosevelt in 1905, prohibits the

employment, in the performance of Federal contracts, of any person who is serving a sentence of imprison ment at hard labor imposed by a court of a State, terri tory, or municipality. I have now determined that Executive Order No. 325A
should be replaced with a new Executive Order which

would permit the employment of non-Federal prison in mates in the performance of Federal contracts imder
terms and conditions that are comparable to those now

applicable to inmates of Federal prisons.

NOW, TEBREFORE, pursuant to the authority veeted in me as President of the United States, it is hereby or dered as follows: SEcTION 1. (a) All contracts involving the use of ap propriated funds which shall hereafter be entered into by any department or agency of the executive, branch for performance in any State, the District of Columbia,

the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the

App. 56

2010 Federal Sentencing Guidelines Manual 5g1.3

-

2010 FEDERAL SENTENCING GUIDELINES MANUAL

CHAPTER FIVE DETERMINING THE SENTENCE
-

PART G IMPLEMENTING THE TOTAL SENTENCE OF IMPRISONMENT

-

5G1.3.

Imposition of a Sentence on a Defendant Subject to an Undischareed Term of Imprisonment (a) 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. (b) If subsection (a) does not apply, and a tenn of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of 1BI.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: the court shall adjust the sentence for any period of imprisonment already served on the undischarged terni of (1) imprisonment if the court detennines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged

tern of imprisonment. (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant (c) offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.

Co,nmentan Application Notes: Consecutive Sentence Subsection (a) Cases. Under subsection (a), the court shall impose a consecutive sentence when the instant offense was committed while the defendant was serving an undischarged term of imprisonment or after sentencing for, but before commencing service of such term of imprisonment.
-

2.

Application ofSubsection (b). (A) In GeneralSubsection (b) applies in cases in which all of the prior offense (z) is relevant conduct to the instant offense under the provisions ofsubsection (a)(1), (a)(2), or (a)(3) of IBl.3 (Relevant Conduct); and (ii) has resulted in an increase in the Chapter Two or Three offense level for the instant offense. Cases in which only part of the prior offense is relevant conduct to the instant offense are covered under subsection (c). (B) Inapplicability ofSubsection (b).Subsection (b) does not apply in cases in which the prior offense increased the Chapter Two or Three offense level for the instant offense but was not relevant conduct to the instant offense under JBJ.3 (a) (1), (a)(2), or (a)(3) (<u>e.g. <In>, the prior offense is an aggravated felony for which the defendant received an increase under 2L1.2 (Unlawfully Entering or Remaining in the United States), or the prior offense was a crime of violence for which the defendant received an increased base offense level under 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition),). (C) Imposition ofSentenceIfsubsection (b) applies, and the court adjusts the sentence for a period oftOne already served, the court should note on the Judgment in a Criminal Case Order (i) the applicable subsection (<u>e.g. </u>, 5Gl.3(b)); (ii) the amount of time by which the sentence is being adjusted; (iii) the undischarged term of imprisonment for which the adjustment is being given; and (iv) that the sentence imposed is a sentence reduction pursuant to ,5G1.3 (b) for aperiod of imprisonment that will not be credited by the Bureau ofPrisons. (D) ExampleThefollowing is an example in which subsection (b) applies and an adjustment to the sentence is appropriate:

The defendant is convicted of a federal offense charging the sale of 40 grams of cocaine. Under ]B].3, the defendant is held accountablefor the sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state offense and has served six months on that sentence at the time of sentencing on the instant federal offense. The guideline range applicable to the defendant is 12-18 months (Chapter Two offense level of level 16 for sale of 55 grams of cocaine; 3 level reduction for acceptance of responsibility;

Page 1 of3 App. 57

2010 Federal Sentencing Guidelines Manual 5g1 .3

-

nai ojjense evei of level I i; criminat 1-lzswry category I). I ne court aetermines mar a Sentence oj I.i mourns proviaes me appropriate total pun ishinent. Because the defendant has already served six months on the related Slate charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run concurrently with the three months remaining on the defendants stale sentence, achieves this result. 3. Application ofSubsection (c). (A) In GeneralUnder subsection (c), the court may impose a sentence concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment. In order to achieve a reasonable incremental punishment for the instant offrnse and avoid unwarranted disparity, the court should consider the following:
((I

thefactors set forth in 18 US.C.

3584 (referencing 18 USC. 3553(a));

(ii)

the type (<u>e.g.</u>, determinate, indeterminate/parolable) and length of the prior undischarged sentence; the time served on the undischarged sentence and the time likely to be served before release;

(iii)

(iv) thefact that the prior undischarged sentence may have been imposed instate court rather than federal court, or at a different time before the same or differentfederal court; and (v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense.

(B) Partially Concurrent SentenceIn some cases under subsection (c), a partially concurrent sentence may achieve most appropriately the desired result. To impose a partially concurrent sentence, the court may provide in the Judgment in a Criminal Case Order that the sentence for the instant offense shall commence on the earlier of (i) when the defendant is released from the prior undischarged sentence; or (ii) on a spec(fled date. This order provides for a fully consecutive sentence ([the defendant is released on the undischarged term ofimprisonment on or before the date spec(fled in the order, and a partially concurrent sentence ([the defendant is not released on the undischarged term of imprisonment by that date. Undischarged Terms ofImprisonment Resulting from Revocations ofProbation, Parole or Supervised ReleaseSubsection (C) (c) applies in cases in which the defendant was on federal or stale pro bation, parole, or supervised release at the time ofthe instant offense and has had such probation, parole, or supervised release revoked. Consistent with the policy set forth in Application Note of,7B1.3 (Revocation of Probation or Supervised Release), the Commission recommends that the sentence for 4 and subsection the instant offense be imposed consecutively to the sentence imposedfor the revocation. (D) Complex SituationsOccasionally, the court may be faced with a complex case in which a defendant may be subject to multiple undischarged terms of imprisonment that seemingly cailfor the application of dfferent rules. In such a case, the court may exercise its discretion in accordance with subsection (c) to fashion a sentence of appropriate length and structure it to run in any appropriate manner to achieve a reasonable punishment for the instant offense. (E) Downward DepartureUnlike subsection (b), subsection (c) does not authorize an adjustment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment. However, in an extraordinary case involving an undischarged term of imprisonment under subsection (c), it may be appropriate fOr the court to downwardly depart. This may occur, for example, in a case in which the defendant has served a very substantial period of imprisonment on an undischarged term of imprisonment that resultedfrom conduct only partially within the relevant conduct for the instant offense. In such a case, a downward departure may be warranted to ensure that the combined punishment is not increased unduly by the fortuity and timing of separate prosecutions and sentencings. Nevertheless, it is intended that a departure pursuant to this application note result in a sentence that ensures a reasonable incremental punishment for the instant offense of conviction. To avoid confusion with the Bureau of Prisons exclusive authority provided under 18 US. C. 3585(b) to grant credit for time served under certain circumstances, the Commission recommends that any downward departure under this application note be clearly stated on the Judgment in a Criminal Case Order as a downward departure pursuant to 5G1.3(c), rather than as a credit for time served. Downward Departure ProvisionIn the case of a discharged term of imprisonment, a downward departure is not prohibited ((the 4. defendant (A) has completed serving a term of imprisonment; and (B) subsection (b) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. 5K2.23 (Discharged Terms of Imprisonment). Background. In a case in which a defendant is subject to an undischarged sentence of imprisonment, the court generally has authority to impose an imprisonment sentence on the current offense to run concurrently with or consecutively to the prior undischarged term. 18 U.S. C. 3584(a). Exercise of that authoritt, however, is predicated on the courte consideration of the factors listed in 18 US. C. 3553 (a), including any applicable guidelines or policy statements issued by the Sentencing Commission.
Historical Note: Effective November t, 1987. Amended effective November I, 1989 (s Appendix C. amendment 289); November I, 1991 (s Appendix C, amendment 385); November 1, 1992 ( Appendix C, amendment 465); November 1, 1993 (s Appendix C, amendment 494); November 1, 1995 Appendix C, amendment 535); November 1, 2002 (see Appendix C, amendment 645): November 1, 2003 (s Appendix C, amendment 660); November 1, 2010 (s Appendix C, amendment 747).

(EFFECTIVE November 1, 2010)

Page 2 of 3 App. 58

2010 Federal Sentencing Guidelines Manual 5g1.3

-

United States Sentencing Commission

Page 3 of 3 App. 59

2010 Federal Sentencing Guidelines Manual 5k2.23

-

2010 FEDERAL SENTENCING GUIDELINES MANUAL

CHAPTER FIVE DETERMINING THE SENTENCE
-

PART K DEPARTURES
-

2.

OTHER GROUNDS FOR DEPARTURE Dischared Terms of Imprisonment (Policy Statement) A downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of 5G 1.3 (Imposition of a Sentence on a Defendant Subject to Undischarged Term of Imprisonment) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense.

5K2.23.

Historical Note: Effective November I, 2003 (see Appendix C, amendment 660). Amended effective November 1,2004 (see Appendix C, amendment 674).

(EFFECTIVE November 1, 2010)

United States Sentencing Co,n,nission

Page 1 of 1 App. 60

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PS 5160.05 1/16/20 03 Page 2 PS 5800.07 PS 5880.28 PS 5880.30 PS 5880.32 PS 7300.09 5. Inmate Systems Management Manual (12/24/91) Sentence Computation ManualCCCA (2/21/92) Sentence Computation Manual (old Law Pre CCCA1984) (7/16/93) District of Columbia Sentence Computation Manual (1/23/01) Community Corrections Manual (7/22/98)

SThNDARDS REFERENCED

American Correctional Association 3rd Edition Standards for a. Adult Correctional Institutions: 34093 and 34094 American Correctional Association 3rd Edition Standards for b. Adult Local Detention Facilities: 3ALDF-1E-02 and 3-ALDF-1E-03 c. American Correctional Association 2nd Edition Standards for Administration of Correctional Agencies: 2-CO1E04 and 2-CO-1E-05
6. MCC/MDC/FDC APPLICATION. This Program Statement applies to pre trial and holdover inmates as indicated in subsequent sections.

7. STATUTORY AUTHORITY. Authority for designating a state institution as the place to serve a federal term of imprisonment is found in 18 U.S.C. 3621(b), which states: The Bureau of Prisons shall designate the place of the prisoners imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable
. . .

a. For inmates who committed the underlying offense before November 1, 1987, a similar provision is found in 18 U.S.C. 4082(b) (repealed). Federal judges have the authority to order a federal term of b. imprisonment to run consecutively to or concurrently with any other sentence. When there is a previously imposed sentence (federal or nonfederal) in existence at the time of federal sentencing, and the federal judge does not state whether multiple

App. 62

PS 5160.05 1/16/2003 Page 3 terms of imprisonment are to run consecutively to or concurrently with one another, the sentences run consecutively (see 18 U.S.C. 3584) (This applies only to federal offenses committed on or after November 1, 1987.)
.

When a federal judge orders or recommends a federal sentence c. run concurrently with a state sentence already imposed, the Bureau implements such order or recommendation, ordinarily by designating the state facility as the place to serve the federal sentence. United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992) For federal offenses that occurred prior to d. November 1, 1987, and there is a previously imposed sentence in existence at the time of federal sentencing and the federal judge is silent as to whether multiple terms run concurrently or consecutively, the RISA will have to research the record and make a determination regarding concurrency. e. No concurrent designation will be considered when statutory language mandates consecutive service or the U.S. Sentencing Guidelines require consecutive service. f. Authority for commencement of a sentence once a facility is designated is found in 18 u.s.C. 3585(a) and 3568 (repealed). 18 u.s.c. 3585(a), states,

A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. 18 U.S.C. 3568, states in part,

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. Just as the federal government has no authority to prescribe g. when a state sentence will commence, the state has no authority to order commencement of a federal sentence (see 18 U.S.C. 3585(a) & 3568 (repealed)).

App. 63

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PS 5160.05 1/16/2003 Page 5 (1) Court Order. The sentencing court orders, on the Judgment Commitment Order or the Judgment in a Criminal Case (J&C), that the federal sentence be served concurrently with a state sentence. The court may make clear its intent by using language similar to:
&

Said sentence to run concurrently with the state sentence the defendant is presently serving. Sentence to run concurrently with sentence imposed under Docket 16888, San Diego County Court, on May 14, 1988. Sentence is hereby ordered to run concurrently with any other sentence presently being served. Sentence to begin immediately.

Court Recommendation of Non-Federal Confinement. (2) The sentencing court recommends a nonfederal institution as the place of confinement on the J&C. Most J&Cs have a preprinted area for recommendations with language similar to: the court makes the following recommendations to the Bureau of Prisons.
.

If the inmate was in primary nonfederal custody, (i.e., produced on writ), and the court uses the preprinted phrase and adds the name of a state institution, this will be accepted as a court recommendation for concurrent service. This wording could also appear in the body of the J&C. Concurrent Service of Sentence After Imposition. (3) The court may, from time to time, order concurrent service of the federal sentence at some time after its imposition. This may occur when primary jurisdiction resided with the state and the court believed mistakenly that the inmate was in federal custody for service of the federal sentence on the date of imposition. (4) Inmate Request. Occasionally, an inmate may request a nunc pro tunc (i.e., occurring now as though it had occurred in the past) designation. As a result of the decision in Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), the Bureau considers an inmates request for presentence credit toward a federal sentence for time spent in service of a state sentence as a request for a nunc pro tunc designation.

App. 65

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PS 5160.05 1/16/2003 Page 10 the letter to the USMS (Attachment A), the J&C Order, the USM129, the PSI, a copy of the Sentence Data Computation Sheet, any other available pertinent information.

and

If a copy of the inmates PSI is not provided in the (3) designation packet, the RISA will request a copy from the U.S. Probation Office. d. Sentence Computation. The RISA is responsible for:

computing the inmates sentence (with the exception of D.C. Code sentences), posting awards of Extra Good Time (EGT), notifying the USMS and the state department of corrections of the inmates release date, and completing all necessary SENTRY transactions.

(1) The RISA has the final approval for state recommendations for EGT. EGT awards for inmates in state institutions must be consistent with the requirements for those in federal institutions (see the sentence computation manual) (2) The maximum amount of Statutory Good Time (SGT) or Good Conduct Time (GCT) an inmate is entitled to receive will be awarded unless documentation provided by state authorities recommends a forfeiture of SGT or disallowance of GCT based on the inmates behavior. After reviewing the documentation provided by the state, the RISA will determine, in consultation with the Regional Discipline Hearing Administrator or Regional Counsel, whether some or all of the SGT or GCT should be forfeited/disallowed. e. Release

(1) Should an inmate be released from the non-federal jurisdiction before the statutory release or parole date of the federal term of imprisonment, the USMS will assume custody. The USMS may request designation from the respective CCM 30 days prior to assuming custody of the inmate. The USMS must provide documentation verifying the completion of the state sentence. The RISA is then to forward all inmate files (Central, Medical, and J&C) to the designated federal institution.

App. 70

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(CN03)

PS 5880.28 February 14, 1997 Page 1 31

Multiple Sentences of Imprisonment. e. The statute that governs the manner in which multiple sentences of imprisonment may be imposed is 18 U.S.C. 3584.
*

(1)

Subsection

(a)

of Section 3584 states,

(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. The Bureau of Prisons interprets the phrase, an undischarged term of imprisonment, as applying to any lawfully imposed federal or state, local or foreign (nonfederal) sentence or revocation of a conditional release term (probation, * supervised release, parole, etc.). The legislative history for this subsection states that, if the court is silent as to whether terms of imprisonment imposed at the same time (emphasis added) are concurrent or consecutive, the terms run concurrently unless a statute requires that they be consecutive. If, on the other hand, multiple terms of imprisonment are imposed at different times (emphasis added) without the judge specifying whether they are to run

App. 74

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