FEDERAL DEFENDERS OF NEW YORK & SECOND CIRCUIT JUDICIAL COUNCIL PRESENT

DEMVSTIFVING THE B.O.P.: TIME COMPUTATIONS, DESIGNA T~ PROGRAMS, AND ADVO CV

A FREE CLE PROGRAM

Friday, December 7, 2012 New Yort< Law School, 185 West Broadway, , New Yori:<, NY 10013

PROGRAM MATERIALS

DEMYSTIFVING THE B. O.P.: TIME COMPUTATIONS, DESIGNATION, PROGRAMS, AND ADVOCACY

Friday, December 7, 2012

Tahle of Contents

Agenda ............................................................................................................................................................... 1

Michael D. Tafelsl:?i, Esq. Materials ............................................................................................................ 2

Designation and Programs ........................................................................................................... 2

FAQ1s ................................................................................................................................................... 10

Interaction of Federal and State Sentences ............................................................................ 17

Sester v. United States, 132 S.Ct. 1463 (2012) ........................................................................... 23

John L. Badalamenti, Esq., Materials ....................................................................................................... 40

Note-T al:?er Friendly Powerpoint Excerpts .............................................................................. 41

SpeaRer Biographies ...................................................................................................................................... 51

DEMVSTIFVING THE 8.0.P.: nME COMPUTATIONS, DESIGNA T/ON, PROGRAMS, AND ADVOCACY

Friday, December 7, 2012

AGENDA

10:00 Opening RemarRs: David Patton, Executive Director, Federal Defenders of New Yori<

10:15 Information from the Source Michael T afe!sl<i, Esq., Regional Counsel, Federal Bureau of Prisons, Northeast Region

11:30 Getting the Best Results John L. Badalmenti, Esq. Assistant Federal Defender, Appellate Division, Middle District of Florida

12:45 Closing Remarl:?s: David Patton

Co-sponsored by:

The Federal Defenders of New Yori< The Second Circuit Judicial Council

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FEDERAL BUREAU OF PRISONS ISSUES presented to the

Fall Training Seminar for CJA Panel Attorneys Southern District.of New York

MICHAEL D. TAFELSICT, REGIONAL COUNSEL NORTHEAST REGION

DECEMBER 2012

DESIGNATION AND SENTENCE COMPUTATION AUTHORITY

Most designation and transfer functions have been shifted to the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas. Designation teams are grouped by judicial districts: Eastern and Southern NY are handled by Delta Team. Correspondence can be sent via email to GRA-DSC/PolicyCorrespondence&AdminRemedies@bop.gov. In addition, responsibility for sentence computations has also been assumed by DSCC. Judicial recommendations concerning designation or programs are best placed on the Judgement and Commitment order.

Medical designation decisions (and transfers) are made by the Office of Medical Designations and Transfers. The Bureau has adopted a level of medical care approach to assist in designating medical needy inmates to institutions where medical care is more readily available. Four care levels are used: care level 1 is the least in need of medical care, and level 4 is the most in need of care. Costs' will be saved by minimizing extended medical trips. For example, FCI McKean; PA and FCI Ray Brook, 1\TY will only house care level 1 inmates. The Bureau is also experiencing population pressures at the Federal Medical Centers (also known as medical referral centers (MRCs). The.level of care approach is designed to help in freeing bed space for inmates who require designation to a medical center. A similar Care Level system has been implemented for Mental Health issues. To assist in overall bed space pressures, the Bureau has been entering into contracts with private correctional companies (including the Northeast Ohio Co1Tectional Center, Youngstown, Ohio and Moshannon Valley, Phillipsburg, PA). These contract institutions house low security federal inmates who a.re either District of Columbia offenders or depmiable aliens.

DESIGNATION CONSIDERATIONS

There are five levels of federalinstitutions: minimum, low, medium, high, administrative (pretrial, medical). Pretrial inmates, while the responsibility of the U.S.M.S., are routinely housed in a BOP administrative detention facility if one is located in the vicinity.. The factors considered in assessing security level include: offense severity, type of detainers, expected length of incarceration, criminal history, history of escape or violence, voluntary surrender, The Presentence Investigation Report is the key document and provides most of the factual basis. The criminal history category found by the Sentencing Court is used to score part of the Bureau classification. As a general rule, the Bureau tries to designate to an appropriate security level

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within 500 miles of residence. In addition to security level, there are a host of other items considered in reaching a designation decision. These include judicial recommendations, medical concerns, mental health, atypical nature of offender (former law enforcement officer, high publicity, unusually vulnerable, cooperator), atypical nature of offense (terrorist, sex offender), separation needs: and deportable alien. Inmates are not permitted to keep a copy of their owri ·Presentence Report (except prior to sentencing), but inmates are permitted access to the Report. (Program Statement No. 1351. Release of Information, Page 15).

During the criminal proceedings, the District Court can commit the defendant to the Bureau for a study to address both mental issues and physical medical conditions. With regard to "psych studies" (under 18 U.S.C. § 4241 et. seq.), the Bureau prih1arily uses certified forensic psychologists employed at various locations throughout the Bureau (not just at MR Cs). Thus, it is requested the Court order NOT specifically limit the study as a "psychiatric evaluation to be ·done at a Bureau MRC". With regard to "medical issues", the Bureau can properly manage most, if not all, medical issues. Prior to sentencing, Courts can commit a Defendant if it "desires more information" on the medical condition ifthere is a compelling reason for the study to be done by the Bureau. (18 U.S.C. § 3552) (not common).

If the court makes findings regarding controve1ted matters contained in the Presentence Investigation Report that may affect the defendant's classification, the court should record these findings in the "Statement of Reasons" attachment to the Judgement and Commitment Order. See Fed. R. Crim. P. 32(c)(1),

Most Bureau of Prisons Program Statements may be found at www.bop.gov. Program Statement 5100.08, Security Designation and Custody Classification, (131 pages) may be found there. The public web site has considerable information about individual institutions (visiting, directions) and an Inmate Locator. Defendants (and defense counsel) who are granted voluntary surrender will be directed to the USMS to learn designation.

JUDICIAL-RECOMMENDATIONS

· The Bureau considers recommendations.from sentencing judges and follo\vs over 70% of jud·icial recommendations. The Bureau receives judicial recommendation in about half the cases: Instead ofrecommending a specific ir:tstitution, it is more helpful for the court to recommend the purpose; i.e., close to family, receiving drug treatment, etc. When only a specific institution is noted, bed space or separatjon.concerns may prohibit placement to that specific institution. Knowing the undyrlying purpose affords the Bureau more flexibility. As a general rule, the Bureau attempts to designate an inmate within 5 00 miles of his or her residence. There are situations which ·can cause the designation to be outside the usual 50.0 mile radius,

e.g., former law enforcernent,officer, high publicity, vulnerable or cooperating inmate, lack of bed space. Unless the Court requests a reply from .the Bureau, Bureau ·practice is not to send a response to the court even if the recommendation cannot be followed.

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WHAT THE SENTENCING COURT CAN'NOT ORDER (LEGALLY):

The Sentencing Court has jurisdiction and authority to order many things concerning a . federal sentence. The following is a list of what the court.cannot order (at least legally):

· ·Place of incarceration - 18 U.'S.C. § 3621 Earlier Commencement offederal sentence - 18 U.S.C. § 3585(a)* Credit towards sentence for presentence custody - 18 U.S.C. § 3585(b )* Referral into RRC or home detention - 18 U.S.C. §§ 362l(b), 3622, 3624(c) Temporary release on furlough - 18 U.S.C. § 3622 Participation in a specific program - 18 U.S.C. § 4042 Participation in Residential Drug Abuse Program - 18 U.S.C. § 362l(e)

The Sentencing Cornt can recommend any of the above and the Bureau will consider / unless the recommendation violates a statute. The Sentencing Comt has jurisdic.tion to order

participation in specific programs or placement in community custody as a special condition of ,either probation or supervised release. In addition, the Court can only grant a Compassionate Release or Reduction in Sentence "upon motion of the Directo!· of the Bureau of Prisons"(l 8 .U.S.C. § 3582 ( c). (P.S. No. 5050.46)

*Recommendations in sentence calculations are moi·e complicated. A judicial recommendation (or order) for credit for time served is unnecessary: the Bureau is required to grant such credit when appropriate,under 18 U.S.C. § 3585(b). When there are multiple sentences already imposed or expected to be imposed, options will turn ontbe specific facts. It would be best to contact Regional Counsel's office to discuss the specific situation ..

WORK, EDUCATION and RECREATION

All sentenced federal inmates are required to work with the exception of those who, for security, educational, or medical reasons, are unable to do so. An inmate does not have any right to a particular job as~ignment. Most iri.rnates are assigned to an institution job such as food service worker, orderly, plumber, painter, warehouse worker; or.groundskeeper. These work assignments pay from 12 cents to 40 cents per hour. Federal Prison IndustJ:ies (UNICOR) is one of the Bureau's most important and cost effective con-ectiona! programs. UNICOR's. goal is to employ and provide job skills training to the greatest practicable number of inmates confined within the Bureau. UNICOR work assignments pay inmates from 23 cents to $1.15 per hour. Demand among the inmates for a UNICOR work assigri.ment is high. UNICOR contributes significantly to the safety and security of federal c01Tectional institution by keeping inmates· constructively occupied.·· In addition to the job skills, inmates who pa1ticipate in work programs and vocational training are less likely to engage in institutional misconduct, thereby enhancing the safety of staff and .other inmates,

Education programs play an ·irnportant role in providing inmates with opportunities to gain skills needed for successful reentry to the community, within a secure environment. Each

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federal institution maintains a:n Education Department responsible for providing .inmates with literacy classes and other related educational pi·ograms. Every institution provides both leisure and law library sei'Vices. The Bureau how utilizes an Electronic Law 'Library (ELL) at all of the institutions enabling' inmates more timely access to legal research materials. With regard to acc~ss to "legal materia.ls, most Bu.reau pre-trial facilities provide inmates some form of access to

·. electronic discovery materials ...

By statute, 18 U.S.C.-§ 3624(£); each federal institution is required to have an education program for those federal prisoners who are not functionally literate. Non-English speaking inmates are required to participate in an English as a Second Language program until able to function in the English language at the eighth grade level. With few exceptions, inmates lacking either a high school diploma, or a General Educational Development credential (GED), are required to enroll in an a:dult literacy program for a minimum of 240 hours and make

, "satisfactory progress" to earn full good conduct time credits (18 U.S.C. § 3624(b),.

A variety of programs for self-improvement, including nutritional education, physical ,fitness, weight control, stress reduction, anger management, parenting skills, and interpersonal :skills development are. offered. College and vocational training courses are available at many ..institutions. Most institutions offer vocational training in a variety of fields, such as culinary arts, building trades, dent.al assistant, and dog training. Recreation programs encourage inmates to make constructive use o.fleisuretime and offer group and individual activities. Physical fitness and wellness programs are provided to promote positive lifestyle ehanges. Hobbycraft programs vary .from institution to. institution, including activities such as painting, leathercra'fts, artwork, and ceramics. , Completed projeots are mailed home, as inmates are not permitted to retain completed projects in their possession. ·

SUBSTANCE ABUSE PROGRAMS

The Bureau has c·ommitted considerable resources and staff to the treatment of inmates with substance abuse problems, including abuse of drugs and alcohol. The Bureau has over 600 treatment positions, including each institution being staffed with one or more Psychologists, a Drug Abuse P-rogram Coordinator, .and a minimum of one Drug Abuse Treatment Specialist, to provide non-residential .drug abuse treatment and drug abuse education to its inmates. Upon admission to a BOP facility, a staff psychologist reviews the inmate's case fo1' any history of drug use. Drug education and non-residential drug abuse programs are available to all inmates, and a variet'j of programming is available. The must intensive drug abuse program offered is the Residential Drug Abuse Treatment Program (RDAP). Inmates who successfully complete the RDAP program may be ·granted an early release of up to 12 months. Eligibility decisions for programming are done at the institution, eligibility" decisions .for the possible time 0ff are done at the DSCC and the amount of possible reduction is dependent on the length of sentence. For an inmate to ·be el.ig.ible for placement in the RDAP, psychology staff must fmd evidence the inmate had a substance abuse problem in the last 12 months prior to arrest.

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RDAP is offered at about 63 federal institutions, 'including a United States Penitei1tiary. Inmates are'admitted into RDAP based on proximity to their release date, to ensure that every inmate who volunteers and iS eligible for RDAP receives· the full .course of treatment prior to comm unity release., Inmates in the residential program are housed together, tci create a treatment community. ·Treatment is provided for a minimum of 500 hours, over a 9 toi2 month period. Required RDAP components also include·a transitional drug program, when the inmate is returned to general population, and routinely six months participation in community-based drug treatment, when the inmate is released to a Residential Reentry Center (halfway house). An inmate must have at least 24 months remaining to be served on the sentence in order to complete all aspects of the RDAP which suggests the inmate cannot be serving a sentence of less than 28 months in order to accomplish all components. In Tapia v. United States, 131 S. Ct. 2382 (2011 ), the Supreme Court held the sentencing court cannot increase a sentence to have the

. inmate be eligible for the RDAP (or other rehabilitative programs).

When the Court recommends dmg treatment, the drug education program is mandatory and the inmate cannot refuse to attend, RDAP and the non-residential drug abuse programs are voluntary programs which the inmate can refuse, regardless of the Couit's recommendation.

SEX OFFEI\TDER PROGRAMS

The Bureau.maintains two types of programs addressing the treatment and the management of.inmates with a history of sex offenses; The focus of the Sex Offender Treatment Prngram (SOTP) is treatment; the focus of the Sex·Offender ManagementProgram (S·OMP) is con-ectional management

The SOTP is a voluntary program for inmates within 12 .to 24 months of release. Inmates, meeting certain criteria, are referred tothe SOTP where they will be provided with the tools needed to gain control of their sexual deviancy and develop methods which will help prevent relapse. The SOMP is a mandatory program assignment for.inmates who have been assessed a Public Safety Factor of sex offender, and who require additional correctional supervision. SOMP is comprised of four essential components: assessment, m~magement, treatment and release planning. Based on individual evaluation, a Correctional Management Plan (CMP) is developed for each inmate. Inmates are held accountable for adherence to the CMP. Community release planning is a major part of the program. Prior to release from either the SOTP or the SOMP, staff prepare a comprehensive discharge packet for the United States Probation Officer; with specific recommendations regarding expected intensity of community supervision apd monitoring:

The Adam Walsh Act, enacted on July27,'2006, has a number of imp01tant provisions, two of which directly effect the Bureau of Prisons: (1) expansion of the n:vo types of sex offender programs and (2) -a certification procedure to request the court to consider certain sex offenders for possible civil commitment. The Act added 18 U.S.C. § 3621(f)1-vhich requires the Bureau of Prisons to establish, in· each of its six regions, a Sex Offender Management Program (SOMP) and a Sex Offender Treatment Program (SOTP). The Bureau presently has

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f~ur SOMPs and_ one SOTP operational and is in the process of establishing additional SOTPs and·soMPs.

The Act alsci created 18 U.S.C. § 4248, which authodzes the Bureau to certify to federal district courts thatcertaiti inillates ifre "sexually dangerous persons" for whom civil commitment is n~quiied. ·Certification stays the release of the' inmate and initiates distr1ct court proceedings pursuant to 18 U.S.C. § 4248(b),(c), and (d) .. The Act amended 18 U.S.C. § 4247 to define "sexually dangerous person" as "a person who' bas engaged or attempted to engage in sexually violent conduct or child molestation and who is ~exually dangerous to others." Certifications are presented to the district court where the offender is incarcerated. When filed, the court will conduct a civil commitment hearing. In United .States v. Comstock, 130 S. Ct. 1949 (2010), the Supreme Court decided the natrow issue that the.statute did not exceed Congress' authority, the other constitutional issues remain unresolved. The Bureau houses any individual committed at the FMC Butner, NC.

INMATE FINANCL.\.L RESPONSIBILITY PROGRAM

·The Bureau of Prisons developed the Inmate Financial Responsibility Program (FRP) to foster in :inmates the concept of beir1g responsible for financial obligations. The regulations implementing the program are found at28 C.F.R. §§ 545.10 and 545.11. Court ordered obligations are required to be _paid in the following priority: (1) special assessments, (2) . restitution,.(3) fines and costs. The FRP is voluntary: the inmate must agree to have money sent to. the comt from his or her trust fund account Bureau staff assess outside assets and commissary balances (from whatever source) is assessing appropriate suggested payments. Inmates are expected to participate in the FRP. · The failure to·_show financial responsibility is considered by the Bureau in assessing .classification to work assignments and housing assignments. Ari .inmate wiili a court-ordered financial obligation is given preference for assignment tq UNICOR, and such an assignment requires that 50% of the inmate's earnings are applied to payment of that obligation. . ·

Some Courts of Appeals have held th.e Sentencing Judge cannot delegate the cou1t' s. authority to set a payment schedule to the Bureau of Prisons. If the Sentencing Judge wants the defendant to participate in the FR.P, the Jhdge should order the payment of the fine and restitution due immediately. Conversely, if the Sentencing Judge wants the defendant not to paiticipate in the FR.P, the Judge should order payment of the fine and restitution due at a future time, i.e., time of commencement of supervised release. ·The Sentencing Court could also state in the order: "The defendant is encouraged (or recommended) to participate in the Bureau of Prisons Financial Responsibility Program to pay the financial obligations imposed iri the judgment" . Since the defendant ·is not.ordered to be su_bjectto.the Bureau of Prisons FRP, the encouragement or recommendation should not be an imperrhissible delegation.· The position of the Bureau is, if the court obligations are due immediately, the Bureau can independently assess the ininate' s ability to pay under the FRP.

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.. RRC .and the SECOND CHANCE.ACT

The Bureau has changed the title for contract cor~munity corrections centers (CCC). In recognition of their pri[nary rnle in assisting inmates to reintegrate into the community, the centers are now .calied Residential Reentry Centers (RRC). The Seconcl°Chance Act of 2007 focu~es on effective retµrn ofprisoners to tl-\e community .• The Act revised 18 U.S.C. § 3624(c) to provide the Bureau "shall, tci the extent" practicable, ensure that a prisoner serving a term of imprisonme1it spends a portion of the final months of that term (not to exceed 12 months) under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare_ for the reentry of that prisoner into the community. Such condition may include a community correctional facility." The prior version of the statute had referenced "a reasonable part, not to exceed six months, ofthe last 10 per centum of the term to be served .... " The Second Chance Act retains the 10% or six months, whichever is shorter, limit to the authority of the Bureau to

· place a prisoner in home detention. The most significant change in Bureau procedure is that inmates will be reviewed, to the extent possible, for community confinement when there are 17

. to 19 months remaining to be served.

SPLIT SENTENCES UNDER U.S.S.G. § SCl.1

Proper wording for split sentences imposed under U.S.S.G. § 5Cl.l is a recurring problem. Community confinement (RRC placement or home detention) may be substituted for imprisonment but the community confinement portion must be ordered as a special condition of supervised release or probation. The most common split sentence situation is in Zone C cases. Section SC 1. 1 permits the sentencing court to substitute community confinement for~ imprisonment of up to one half of the minimum term under the guidelines. The key is 5Cl .1 requires the community .confinement segment (either RRC or home detention) to be imposed as a special conditfon of supervised release or probation: If there is no special conditiqn, the Bureau will .treat a reference to community confinement•as a-recommendation.

Example: Defendant is facing a sentencing guideline range of 10-16 months and the court wishes to impose a 10 month sentence, but.also to substitute one half in·community confinement under 5C 1.1. The court can impose a sentence of 5 months imprisonment to tbe Federal Bureau of Prisons and a supervised release term of appropriate length." If the custodial part of the sentence is only 5 months, the court must order a special condition of supervised release to require the defendant to spend 5 months of supervised release in community confinement (either RRC or home detention as selected by the court).

Suggested wording on Judgement and Commitment order: "The defendant is hereby cominitted to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of five months. In addition, under 5Cl. l, the defendant is required, as a.condition of supervised release, to spend the first five months in a Community Corrections Center [or home detention]. " NOTE: There needs to be a corresponding special condition o-f supervised release reqttiring cmrununity confinement· in the Conditions section of the Judgement and Commitrriei:lt order.

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SPECIAL CONDITION OF SUPERVISION-: INTERMITTENT CONFINEMENT

Congre.ss authorized intermittent or weekend confinement only as a condition of probation under 18 U.S.C. § 3563(b )(10) or, under limited circumstances, as a condition of supervised release under 18 U.S.C. § 358}(d). Besides limiting btermittent confinement to a c~ndition of supervision, Congress imposed other limitations: e.g., It could .be .imposed only .during the first year of supervision and its duration and suitability were tied to the offense and sentencing factors under § 3553(a). Because Congress spelled out in explicit detail the limited circumstances when intem1ittent confinement could be imposed by a sentencing court, the Bureau's interpretation is any expansion of that authority is contrary to the statutes. The Sentencing Commission similarly limits intermittent or weekend confinement as a condition of supervision. U.S.S.G. §§ 5B1.3(e)(6), 5D1.3(e)(1).

The Bureau's authority for imprisonment extends from 18 U.S.C.§ 3621. When a couit imposes a sentence of imprisonment, that sentence is governed by 18 U.S.C. §3621 (a), which states that the person "shall be committed to the custody of the Bureau of Prisons until the

.~expiration of the term imposed." Reading this statute literally, intermittent confinement is inconsistent with the above-quoted language, as it requires that a person be committed, released, ;r.ecop:imitted, etc. The Community Corrections Office for the Bureau works with the U.S. J'robation Office to implement a special condition for intermittent confinement. The Bureau preference is to use, as the place for intermittent confinement, a halfway house, where the inmates typically leave during the day for Work, or looking for work .. There is a security concern with permitting an inmate to come and go regularly from a more secure institution. The Bureau encourages specific times to report and to )eave as part of the special condition, e.g .. , report at 5:00 pm on Friday arid leave at 8:00 am on Monday. A condition merely ordering weekend confinement can be construed in too many ways.

FEDERAL BUREAU OF PRISONS NORTHEAST REGIONAL OFFICE:

:Michael Tafelski, Regional Counsel (mtafelskila1bop..gov) Joyce Horikawa, Deputy Regional Counsel Jean Wright, Region:il Correctional Programs Administrator

. 215-521-7375 215-521-7378 215-521-7439

DESIGNATION AND SENTENCE COMPUTATION CENTER (DSCC)

Send correspondence on designations t-0: Designation and Sentence Computation Center U.S. Armed Forces Reserve Complex, 346 Marine Forces Drive; Grand Prairie, TX 75051 DSCC email: GRA-DSC/PolicvCorrespondence&AdminRemedieslalbop.gov General DSCC.telephone number: (972) 352-4400

PUBLIC WEBSITE: ·www.bop.gov

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Bureau of Prisons Issues Presentation at the

Annual National Federal Sentencing Guidelines Seminar

FREQUENTLY ASKED QUESTIONS

***************************************************************** DISCLAIMER: The subject matter areas of Sentence Computation, Primary Jurisdiction, Designations, and Early Release Eligibility based on successful completion of the Residential Drug Abuse Treatment Program (RDAP) are complex and fraught with exceptions to the general concepts outlined below. Accordingly, the following is only intended as a general guide and starting point.

In all cases, Bureau of Prisons (BOP) policy, federal regulations, federal statutes and relevant case law control the decision making process on particular fact situations and must be consulted. Relevant BOP Program Statements include, but are not limited to, PS 5880.28, Sentence Computation Manual (CCCA of 1984), PS 5880.30, Sentence Computation Manual {Old Law/Pre-CCCA of 1984) 1 PS 5160.05 1 Designation of State Institution for Service of Federal Sentence, PS. 5884. 03, Good Conduct Time under the Prison Litigation Reform Act, PS 5100.08, Inmate. Security Designation and Custody Classification, PS 5331.02, Early Release Procedures under 18 U.S.C. §3621(e), PS 5330.11, Psychology Treatment Programs, and PS 5162.05, Categorization of Offenses. Another useful tool is the legal article of "Interaction of Federal and ·state Sentences" found under the Publications section.

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SENTENCE COMPUTATION AND PRIMARY JURISDICTION FAQ'S

Question: When will the BOP calculate my client's federal sentence?

Answer: Ordinarily, the BOP's Designation and Sentence Computation Center (DSCC) will c;,_lculate a federal sentence within 60 days after the date of designation. Your client's Unit Team will notify him of the projected release date shortly after he arrives. at his designated institution.

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Question: How will my client's release date be calculated?

Answer: BOP staff will determine when your client's federal sentence began and how many days of prior custody credit ("jail credit") should be awarded to the federal sentence. They will also subtract the number of good conduct time days 'your client is projected to earn, which depends on the sentencing scheme under which your client was sentenced.

Question: When will my client's federal sentence begin?

Answer: Federal statute provides that your client's federal sentence will begin when she is received in custody awaiting transportation to, or voluntarily surrenders to, the official detention facility at which her sentence is to be served. See 18 U.S.C. § 3585 (a).

Question: What is the earliest date my client's federal sentence will begin?

Answer: The earliest date a federal sentence will begin is the date it was imposed.

Question: If my client's federal sentence was ordered to run concurrently to a previously imposed state sentence, when will it begin· to run?

Answer: Your client's federal sentence will run from the date it was imposed. This will be after your client's state sentence was imposed. Your client's federal sentence will not run from the date the state sentence was ·i~posed.

Question: My client was in state custody serving a state sentence, and he appeared before a federal judge pursuant to a writ. The federal sentence was imposed to run consecutively to the state ~entence. When will my client's federal sentence begin?

Answer: Your client's federal sentence will begin when he completes or paroles .from his state sentence.

Question: If my client appeared before a federal judge and was ordered to voluntarily surrender at a later date, when will her federal sentence begin?

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Artsw~r: If your client is released following sentencing and ordered to voluntarily surrender, her federal sentence begins on the date she voluntarily surrenders' into federal custody .

.. Question: My client has received both a state and a federal sentence. What determines the order i:n which he will serve these sentences?

Answer: Primary jurisdiction generally determines the order in which the sentences are served. ·.If your client is determined to be in primary state custody, he will ordinarily serve his state sentence first in a state facility, even if the state sentence was imposed after the federal sentence.

-Question: What is primary jurisdiction?

Answer: Primary jurisdiction is a legal concept which determines the order in which sentences are served, based on which sovereign has. primary jurisdiction.

·Question: How is primary jurisdiction .decided?

Answer: The ~overeign which first arrested your· client has· primary jurisdiction over her~ T~is s6~erei~ri"ha~ the authority to dispose of all proceedings against her first, e.g., by determining whether her charges. will be disrniss.ed, or whether she will be convicted and be sentenced to serve a term of imprisonment, etc.

Question: How can primary jurisdiction be transferred?

Answer~ Primary juri~diction can be transferred by bail release, dismissal of the state charges~ parole release, expiration of state sentence 1 or an agreement between the sovereign authorities.

Question: Does a writ.transfer primary jurisdiction?

Answer: A writ does . not· ordinarily- transfer primary jurisdiction.

Question: My client is in state custody· serving a state sentence. My client has also received a federal sentence which she has not yet begun serving. How can I req'ilest my client's federal sentence begin?

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Answer: You canwrite the Designation and Sentence Computation Center (DSCC) at 346 Marine Forces Drive, Grand Prairie, TX 75051. You should enclose a copy of your client's federal s~ntenoe and request that it begin.· You shofild also enclose an original exe~uted copy of a DOJ Form 361 Certificate of Identity. This form is located at www. bop .-gov under· Inmate Matters, Sel'ltence Computations, and then the hyperlink to the au:thorization·form.

Alternatively; your client can write the DSCC directly at the address above and enclose a copy of his federal judgment. In either case, the DSCC will conduct a review and reply to the sender with a written decision of its determination.

/Question: My client was originally arrested by state authorities . . ~she was writted into USMS custody to face federal charges. She

received a federal sentence. Will she receive prior custody ·.credit on her federal sentence for time she spent in USMS

·.custody?

Answer: Pursuant to federal statute, she will only receive credit for time spent on federal writ if the.state did not credit that. time to her state sentenc~. If the state never imposed a sentence, the Bureau will credit all time spent in custody on the federal writ as .long as it was aft~r the date· she committed.her federal offense. See 18 U '. S .. C. § 3585 (b) ..

Question: Will the Bureau award my client prior custody credit on his current' federal sentence for time that was credited to a state sentence?

Answer·: No. Pursuant to federal statute, 'your client will only receive credit towards his federal sentence if that time w~s not cr~dited towards ariother sentenbe, and other statutory requirements are met. See 18 U.S.C. § 3585(b).

Question: How much.Good Conduct Time (GCT) will·my client earn?

Answer: This answer depends on the sentencing scheme under which your client was sentenced. rf she committed her federal offense on or after November 1, 1987, she wili earn 54 days of GCT for each year she serves on her term of imprisonment. If she does not have a high school diploma or general equivalency diploma (GED) and is not successfully working towards a.GED, she will earn 42 days of GCT per each ·year served. .She' will not earn GCT

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on sentences of 12 months or less. See 18 o.s .. c. § 3624 (b)"

DESIGNATION FAQS

Question: How soon after ser:ltencing wili my client know where he is.designated?

An~wer: When the BOP receives the r~quest for design~ti6n from the U.S. Marsh~ls.Servic~ (OSMS)., it ~ill take approximately seven days to process the request and notify the USMS. The USMS will then notify your client of his designated facility. If extenuating circumstances exist, such as serious medical issues or incomplete documentation, the designation process may take longer. ·

Question: The court ordered my client to be designated to a certain facility. Why was she not. designated there?

Answer: Under 18 U.S.C. § 362l(b), the BOP is the final designating authority. The BOP is required to consider the following when designating offenders to facilities: the resources of the facility contemplated, the nature. and circumstances of the offense, the offender's history and characteristics, any statement by the court that ·imposed· the sentence recommending a type of facility as appropriate, and any pertinent policy statement issued by the Sentencing Com,mission. The BOP makes every attempt to designate an offender to 'the facility recommended by the sentencing court. However, if the court recommends. a fa_cility which does not meet your client's security level, medical or programming needs,· or the BOP; s ne.ed to manage its population, ·the BOP will designate your client to· ari appropriate in~~itbtion which ~eets these needs.

Question: When will my client.be considered for a transfer closer to home?

Answer: Conside,rc;i.tion will be given for a nearer release tr~nsfer after an inmate has main£ained clear condu6t for eighteen months at his designated 'institution. ,

EARLY RELEASE E~IGIBILITY FAQs

Question:. What drug abuse trea.tment _Pr.ograms does the BOP offer?

Page 5 of 7

P14

Answer: The BOP.offers several.drug abuse treatment programs, including ·the Non-Residential Drug !iliuse Treatment Program, the Residential Drug Abuse Treatment Program (RDAP), and the Commun-ity Transition Drug Abuse Treatment Program. The BOP also offers a Drug Abuse Education course at ev.ery fa:c:ility ..

Question: Do any of these programs offer inmates the incentive of early release?

Answer: Yes. RDAP offers an early· release incentive. If an inmate successfully completes all 3 phases of RDAP, he or she may be released up to one year early from the term the inmate must otherwise serve. See 18 U.S.C. §3621 (e) (2) (B).

:.::·Question: How does my client participate in RDAP?

·-Answer: If she wants to participate in RDAP, she should submit a written request to her ins ti tut ion Drug A..buse Program

:coordinator (DAPC). The DAPC will interview her to determine if .she has a documented substance abuse disorder, and is otherwise qualified to participate in RDAP.

Question: ·If the DAPC finds my client is qualified to participate in RDAP, how does he find out if he is eligible for early release?

Answer: The DAPC will submit a BP-942 Form, Request for Offense Review, to the Designation and Sentence Computation-Center (DSCC) Legal Department.

Question: What is the scope of the DSCC Legal Department's Review?

Answer: The DSCC Legal Department only reviews your client's current and prior conviction? to determine if they preclude him fr6m early reiease. Ple~se not~ th~t'e~en.if 'ihe DSCC Legal Department concludes that these convictions do not preclude him from early- release, he still may not be eligible for early release based on other reasons outlined in PS 5331.02, Early Release Procedures Under 18 u.s.c: §362l(e) 1 such as the placement of a detainer, subsequent disciplinary· infractions, etc.

Question: What does the .. oscc Legal Department use·- to review my client'.s current· conviction and offense conduct? ·

Page 6 of. 7

P15

Ans~er: The DSCC Legal Department refers to PS 5162.05, Categorization of Offenses,.-and·the .regulations contained in PS 5331.02, Early Release Pr6cedures Under 18 U.S.C; §3621(e) to review your client's current conviction and offense'conduct.

Question; What does the DSCC Legal Department use to review my client~s prior convictions?

Ariswer: The DSCC Legal DeFa'rtmerit · refers to the regulations contained in PS 5331.02, Early Release Procedures Under 18 U.S.C.

'§3621(e) to review your client's prior conviction and offense conduct .

.. "Question: How does my client learn the DSCC Legal Department's determination?

:· fl~nswer: The DSCC Legal Department will return a completed review form to your client's DAPC. Institution staff will then meet

~with your client to discuss the determination made by the DSCC Legal Department.

~ONTACT INFORMATION Sonya Cole Assistant General Counsel DSCC ( 972) 352-4425

Jennifer Dannels Assistant General Counsel

·DSCC

(972) 595-3188

Tiffany Phillips Assistant General Counsel ( 972) 352-4 616

Alicia Vasquez Assistant General Counsel (972) 352-4626

Page 7 of 7

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INTERACTION OF FEDERAL AND STATE SENTENCES WHEN THE FEDERAL DEFENDANT IS UNDER STATE PRIMARY JURISDICTION

Henry J. Sadowski, Regional Counsel Northeast Region, Federal Bureau of Prisons ·

This memorandum details how the Federal Bureau of Prisons computes federal sentences imposed when the defendant is under the primary custodial jurisdiction of state authorities. This is probably the single niost confusing and least understood federal sentencing issue. To place this discussion into context, basic sentencing principles will be discussed and then applied to state and federal sentencing interaction. The policy of the Bureau of Prisons concerning where the federal sentence is served will also be addressed. ·

BASIC FEDERAL SENTENCE COMPUTATION DECISIONS

In any computation of a federal sentence, two separate decisions must be made: when the federal sentence commences and to what extent the defendant can receive credit for time spent in custody prior to commencement of sentence. 1 For offenses committed prior to November 1, 1987, each of these decisions is governed by repealed 18 U.S.C. § 3568. Section 3568 specifies that the Attorney General is responsible for sentence computation decisions. For offenses committed on or after November 1, 1987, commencement of federal sentence is governed by 18 U.S.C. § 3585(a), and prior custody credit is governed by 18 U.S.C. § 3585(b). The provisions of§ 3585 were designed to maintain the same basic authority for sentence computation in the Attorney General as under its predecessor. United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351 (1992). Wilson held that, although new§ 3585 omits the language of old § 3568 specifying that the Attorney General is responsible for sentence computation, Congress did'not intend to change this well settled authority. JQ. The authority of the Attorney General to compute sentences has been delegated to the Federal Bureau of Prisons by 28 C.F.R. § 0.96 (2010). 2

. · . .

COMMENCEMENT OF FEDERAL SENTENCE

The underlying principle of both repealed § 3568 and present§ 3585(a) is that a federal sentence commences when the defendarit is received by the Attorney General of the United States for service of his federal sentence. 3 When a federal sentence is

1 Chambers v. Holland, 920 F .Supp. 618, 621 (M.D .Pa.), aff' d, J 00 F .3d 946 (3 d Cir. 1996); United States v. Smith. 812 F.Supp. 368, 370 (E.D.N.Y. 1993).

2 See United States v. Pineyro. 112 F.3d 43 (2d Cir. 1997).

3 Pinaud v. James, 851 F.2d 27 (2d Cir. 1988); Sailey v. United States. 786 F.2d 546 (2d Cir. 1986); Chambers v. Holland, 920 F.Supp: at 621.

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imposed on a defendant in state custody, the federal sentence may commence when the Attorney General agrees to designate the state facility for service of the federal sentence. 4 The designation authority of the Attorney General under repealed 18 U.S.C. § 4082 had been delegated to the Federal Bureau of Prisons. 28 C.F.R. § 0.96(c). Present 18 U.S.C. § 3621 expiicit!y vests the designation authority in the Bureau.of Prisons, The earliest date a federal sentence can commence is the date it is imposed. Thus, a concurrent sentence commences on the date of its imposition; not on the date of commencement of prior sentence, or some earlier date. 5 A sentence cannot be ordered to commence at a date prior to its imposition. 6

A federal sentence does not begin to run when a federal defendant is produced for prosecution by a federal writ of habeas corpus ad prosequendum from state custody. 7 The state authorities retain primary jurisdiction over the prisoner; federal custody does not commence until state authorities rellnquish the prisoner on satisfaction of the state obligation. 8 The sovereign which first arrested the offender has primary jurisdiction over the offender, unless that sovereign relinquishes it to another

.. sovereign by, for example, bail release, dismissal of the state charges, parole release, or expiration of state sentence. 9 When a prisoner is borrowed from the primary

·custodian via a writ of habeas corpus ad prosequendum, principles of comity require ·. the return of the prisoner to the primary custodian when the prosecution has been ~ completed. 10 This concept of primary jurisdiction controls many of the decisions in this

4 Taylor v. Say,yer, 284 F.3d 1143 (9th Cif. 2001), cert. denied; 123 S.Ct. 889 (2003); Romandine v. United States, 206 F .3d 73 J (7th Cir. 2000); RoQ:ers v. United States, 180 F .3d 349 (1st 1999), ce1t. denied, 528 U.S. 1126 (2000); McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998); Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990); United. States v. Pungitore, 910 F.2d 1084, 1118-1119 (3d Cir. 1990), cert. derued, 111 S.Ct. 2009-2011 (1991).

5 Coloma v. Holder, 445 F.3d 1282 (1 lth Cir. 2006); Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C.Cir. 1983); United States v. Flores, 616 F.2d 840, 841 (5th Cir. 1~80) ..

6 United States v. Gonzalez, 192 F.3d 350 (2d Cir 1999); United States v. Labeille-Soto, 163 FJd 93 (2d Cir. 1998). But see United States ex rel. Del Genia v. United States Bureau of Prisons, 644 F.2d 585, 5 89 (7th Cir. 1980), cert. denied, 449 U.S. l 084 (1981-) (implying in dfota sentencing judge eould order prior commencement).

7 United States v. Cole, 416 F.3d 894 (8th Cir. 2005); United States v.. Evans, 159 F.3d908 (4th Cir. 1998); Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992); Thomas v. Brewer, 923 F.2d 1361 (9th Cir. 1991); Barden geohane, 921 F .2d 4 76 (3d Cir. 1990); Salley v. United States, supra; Hernandez v. United States Attorney General, 689 F .2d 915 (10th Cir. 1982); Roche v. Sizer,· 675 F.2d 507 ~(2d Cir. 1982); Chambers v. Holland, 920 F.Supp. at 622.

8 Rios v. Wiley, 201F.3d257, 274 (3d Cir. 2000); Jakev. Herschberger.173 F.Jd.1059 (7th Cir. 1999); Del Guzzi v. United States. 980 F.2d 1269 (9th Cir. 1992); Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992); · Hernandez v. United States Attorney GeneraL supra; Roche v. Sizer, supra; Crawford v. Jackson, 589 F.2d .693 (D:C.Cir. 1978); cert. denied. 441 U.S. 934 (1979); Cobb v. United States, 583 F .2d 695 (4th Cir. 1978); Chambers '"Holland, supra; Shumate v. united States, 893 F.Supp. 137 (N.D.N.Y. 1995); Miller v. United States, 826 F.Supp. 636 (N.D.N.Y. 1993). See also Bowman v. United States, 672 F.2d 1145, 1153-154 (3d Cir. 1982).

9 United States v. Cole, 416 F.3d 894 (8th Cir_. 2005); Rios v. Wiley, 201 F.3d at 274; Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998); United States v. Warren, 610 F.2d 680 (9th Cir.1980); Charribers v. Holland, 920 F.Supp. at 622; United States v. Smith. 812 F.Supp. 368 (E.D.N.Y. 1993).

10 Delima v. United States,41 F.Supp. 2d 359 (E.D.N.Y. 1999), affd, 213 F.3d 625 (2d Cir. 2000).

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area.

PRIOR CUSTODY CREDIT

·Under the old § 3568, a federal prisoner was not entitled to prior cu~tody time credit towards a federal sentence for the period spent in state custody especially when

· the state provided credit for the same period towards a state sentence. 11 Time in custody of the United States Marshal pursuantto a federal writ of habeas corpus ad prosequendum from state custody is not federal custody in connection with the federal offense. 12 For new !aw cases, the Supreme Court noted that under new§ 3585(b), "Congress made clear that a defendant could not receive double credit for .his detention time." United States v. Wilson, 112 S.Ct. at 1356. Under§ 3585(b), prior custody credit cannot be granted if the prisoner has received credit towards another sentence. 13

There are some llmited exceptions, 14 but the general rule is no credit is afforded ·towards a federal sentence if credit has been given for the same period of custody towards a state sentence.

· :~ .. CONCURRENT VERSUS CONSECUTIVE SERVICE OF FEDERAL SENTENCE WITH STATE SENTENCE

As in the commencement decision, the order in which sentences are served is governed by the concept of primary jurisdiction. If state and federal sentences are .

·.·imposed on. an offender., the general rule is that the sentence imposed by the sovereign with primary jurisdiction is served first. GeneraHy, decisions concerning concurrent or consecutive service of a federal sentence with a state sentence are not dependent on the order of sentence imposition. _If the fec:ieraljudgment and commitment order is silent and .if the state authorities ha:ve primary jurisdiction over the defendant, the default by the Bureau of Prisons is to compute the federal sentence as consecutive to the state sentence regardless of which sentence was imposed first 1 ~. ·Under 18 U,S,C. § 3584, the federal sentendng judge may specifically order the federal sentence to run

11 Del Guzzi v. United States. 980 F.2d 1269 (9th Cir. 1992); United States v. Blanken~hlp, 733 F.2d 433 (6th Cir. 1984);_ United States v. Grimes; 641F2d96 (3d Cir. l981);Siegal v. Dnited States. 436 F.2d 92, 95 (2d Cir. 1970). . .

· .12 E.e.., United States v. Mills, 501 F.3d.9'(lst Cir. 2007); Rios V.. Wilev, 201.F.3d at 271-74; Thomas v.

Whalen, supra; Chambers v. Holland, 920 F .Supp. at 622; Miller v. United States, supra; Unitea States v. Smith. 812 F.Supp. 368 (E.D.N.Y. 1993). But see Brown v. Pen-ill, 28 F.3d 1073 '(10th Cir. 1994).

i3 Rios v. Wilev. 201 F.3d at 272; Tisdale v. Menifee, 166 F.Supp~ 2d 789 (S.D.N.Y.2001).

14 See Kayfez v.·Gasele, 993 F.2d 1288 (7th Cir. 1993). .

15 Thi~ rebuttable default is dr~wn from 18 U.S.C. § 3s84(a) which generally requires consecutiv~ servi~ of sentence imposed at different tii.Des unless the court specifies concurrent service. ·

P19

consecuttvelywith a state sentence. 16 The Bureau.of Prisons interprets§ 3584 .to also permit the federal judge to order concurrent servic~ with an existing state sentence. 17

There is a split in the circuits on whether the federal judge can order concurrent or consecutive servi.ce with a state sentence yetto be imposed. 18

. This ·tssue may be resolved soon: certiorari has been granted in Setser v. United States, 607 F.3d 128 (5th Cir. 2010), cert. granted, (June 13, 2011) (No.10-7387), The position of the United States is that.§ 3584 does not authorize a federal sentencing court to order concurrent or consecutive service with a sentence yet to'be imposed. The sentencing court could re6om1nend concurrent or consecutive service with a yet to be imposed state sentence. The Bureau would -consider strongly any such recommendation from the federal sentencing court. 19 To allow the federal sentence to commence, the Bureau of Prisons designates the state correctional institution (the primary custodian) for service of the federal sentence. Since the earliest date. a federal sentence can commence is the date it is imposed, this designation may be made nunc pro tune no earlier than the date of 'federal sentencing. A sentence may not be ordered to run .concurrently with a sentence which has been served. 20

Under old law, 18 U.S.C. § 3568, when the state had primary jurisdiction, an mder by the federal sentencing judge to run the federal sentence concurrently with a ·state sentence (even one yet to be imposed) was treated by the Bureau of Prisons as a recommendation since the federal sentencing court had no power to order a federal · sentence to run concurrently with a state sentence. 21 Since the Bureau usually follows a concurrentrecommendation from the sentencing judge, the issue of the authority of a federal judge to order concurrent service has been rarely tested. to give effect to the federal sentencing court1s recommendation and allow the federal sentence to co'.flmen~e, the Bureau designates the state facility for service of the federal.

i6 United States v. William5, 46 F.3d 57 (10th Cfr. ), cert. denied. 116 S.Ct. 92 (1995); United States v.

Ballard, 6 F.3d 1502 (11th Cir. 1993); United Statesv. Hardesty, 958 F.2d 910 (9th Cir. 1992); Pinaud v. James, 851 F.2d 27 (2d Cr~. 1988); Salley v. United States, 786 F.2d 546 (2d Cir. 1986). · ·

t7 United States v. Fuentes, 107 F.3d 1515, 1519 n.6 (llth·Cir. 1997).

18 Contrast United .States v. Andrews, 33-0 F.3d 1305 (1 Hh Cir. 2003 ); United States\!. Mayotte. 249 F .3d 797 (8th Cir. 2001); United States v. Williams, supra; United States v. Ballard, supra;. Salley v. United States, supra; with Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72 (2d Cir. 2005); Romandine v. Uruted States, 206 F.3d n I (7th Cir. 2000); United States v. Quintero, 157 F.3d 1038 (6th Cir. 1998); McCarthy v. Doe, 146 F.3d 118 (2d Cir. J 998); United States v~ Clayton, 927 F.2d 491 (9th Cir. 1991). See also United States v. Smith, 472 F .3d 222 (4tb Cir. 2006) (federal sentence cannot be ordered to nm consecutive with future federal sentence).

" 19 Federal sentencing orders have a sectkm for r\:commendations to the Bureau of Prisons. A judicial

recommendation 'contemporaneous with the date of sentencing would obviate the need to return to the sentencing judge, perhaps years later, to ascertain the intent of the judge .. · ·

20 United States v. Labeille"Soto, supra.

21 Barden v. Keohane, 921F.2d476 (3d Cir. 1990); United States v. Camoh;i, 622 F.2d 697 (3d Cir. 1980); Gomori v. Arnold, 533 F.2d 871 (3d Cir.), cert. denied, 429 U.S. 851 (1976); United States v. Huss. 520 F.2d 598 c2d cii-. 1975). ·

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se~tence: 22

PLACE OF INCARCERATION

. . The primary custodian is responsible, for the custody of the defendant, until primary jurisdiction is relinquished. If a defendant has been arrested by state authorities .and the state never relinquished custody (by bail, dismissal of charges, parole, etc.), the defendant must serve his state sentence in state custody. Production of the defendant vja a federal writ of habeas corpus ad grosequendum does not shift the. primary jurisdiction of custody to federnl Buthorities. 3 After the writ is satisfied, the United States Marshal must return the "loaned" defendant back to the state, the primary custodian. -Primary jurisdiction is not affected by the order of imposition of federal and state sentence.

The jurisdiction which is the primary custodian is responsible for the cost of incarceration. When the federal authorities are the primary custodian of the prisoner, the United States bears the cost of incarceration. When the state authority is primary custodian; the state bears the cost of incarceration. When the state has primary jurisdiction over a defendant, the federal sentencing judge may not order· the delivery of the defendant for service of sentence in a federal institution. This order is tantamount to a transfer of custody beyond the jurisdiction of the federal court. 24 Similarly, when the state has primary jurisdiction, the state sentencing judge cannot order that the state prisoner be transported to a federal institution to serve his state sentence. 25 A state

· court has no authority to order how a federal sentence is to be computed or served. 26

There are several ways the Federal Bureau of Prisons may accept a prisoner in primary state custody. First, under a contract pursuant to 18 U.S.C. § 5003, the state authority could request transfer of the prisoner to federal authorities with the understanding that the cost of incarceration are reimbursed to the Uh.ited States. A request to transfer under a contract is usually initiate.ct by the correctional authority of the state with primai-Y jurisdiction. The existence of a contract between the state in question and the Bureau must be determined. Secondly, the \Jnited States Attorney's omce may sponsor the placement of a state prisoner in the witness protection program under 18 U.S.C. § 3521. Finally, the Federal Bureau of Prisons will accept a state defendant when the state authorities relinquish primary jurisdiction by parole, bail,

22 See footnote 4.

23 See footnote 11.

24 United States v. Warren, 610 F.2.d 680 (9.th Cir. 1980); Moore v, Schuetzle, 48fr F.Supp.2.d 969 (D.N.D. 2007); Fisher v. Goard, 981 F .Supp. J 40, 176 (W .D.N. Y. 1997); United States v. Smith, 812 F.Supp. 368 (E.D.N.Y. 1993).

25 Leal v. Tombone. 341 F.3d 427 (5th Cir. 2003); Tavlor v. Sawyer, 284F.3d'i143 (9th Cir. 2001), cert denied, 123 S.Ct. 889 (2003); Del Guzzi v. United States, 980 F.2.d 1269 (9th Cir. 1992).

26 Fee:ans v. United States, 506 F .3d 1001, 104 (8th ~ir. 2007); Leal v. Tombone, supra; Tayl~r v. Sawver, supra; Jake v. Herschber!!er, 173 F.3d at 1065; United States v. Yates, 58 F .3d 542, 550 (10th Cir. 1995); Pinaud v. James, 85.l F.2d 27, 32 (2d Cir.1988); United States v. Sackin2:er, 704 F.2d 29, 32 (2d Cir. 1983).

P21

dismissa! 1 etc. The act relinquishing primary juri$dictiQn usually requires the U.nited States Marshal to assume custody pursuant to an outstanding. detainer. The Marshal then transfers the prisoner to a federal facility designated by the Federal Bureau of Prisons. If the United States obtains a state inmate under the Interstate Agreement of Detainers Act (instead of through a writ) 1 the same concepts.discussed herein apply: the :production of an inmate under the IAD does not shift primary jurisdiction.

IMPACT OF SENTENCING GUIDELINE 5G1 .3

At sentencing 1 it is important to determine to what extent U.S.S.G. § 5G1 .3 applies to the defendant. In certain circumstances 1 5G 1.3 permits the court to make an adjustment or a downward departure for time spent in detention which would not be awarded towards the federal sentence by the Bureau of Prisons under 18 U.S.C. § 3585(b). Section 5G1 .3 has been modified several times 1 so it is crucial to determine which version applies to the defendant. 27 The present version of 5G 1.3 permits an adjustment (non-departure) if the time in detention is related to the federal offense (5G 1. 3(b )). If the court finds an adjustment is justified based on a discharged sentence, the adjustment is to be via downward departure. If the federal sentencing

·judge invokes 5G1 .3 1 it is cr:ucial for the Judgment and Commitment order to delineate exactly how the court determined the sentence. For example 1 if the court applied an adjustment, a reference to 5G1 .3(b) and the amount of adjustment should be noted on the Judgment and Cornmitment order. This reference qssists the. Bureau in resolving issljes concerning the court1s intent,vvhich issu~s often arise years after the sentence was imposed. ltis important to note the Bureau of Prisons wUI apply the prior custody credit standards of 18 U.S.C. §. 3585(b) to every federal sentence .. Any reference in the Judgment and Commitment order to credit for time served is unnecessary and , thus 1

superfluous. ·

July7) 2011

27 There have been disagreements among circuits concerning different applications of§ 5G 1.3. Research in the .respective ciPcuit case law is also crucial. Precise nuances of the Sentencing Guidelines .are beyond the intention and the scope of this memorandum. This section was included to aiert the reader of this other area of senl.encing law which may be impacte.d when a.ilefendant is subject to state and federal prosecutions ..

P22

vvestlaw Page 1

132 S.Ct. 1463, 182 LEd.2d 455, 80 USLW 4274, 12 Cal. Daily Op. Serv. 3513, 2012 Daily Joumal D.A.R. 4003, 23 Fla L. Weekly Fed. S 231 (Cite as: 132 S.Ct. 1463)

Supreme Court of the United States Monroe Ace SETSER, Petitioner

v. UNITED ST ATES.

No. 10-7387. Argued Nov. 30; 2011.

Decided March 28, 2012.

Background: Defendant was convicted in the United States District Court for the Northern Dis­trict of Texas, Sam R. Cummings, J., of possession with intent to distribute 50 grams or more of methamphetamine. Defendant appealed sentence. 'The United States Court of Appeals for the Fifth Circuit, 607 F.3d 128,Benavides, Circuit Judge, af-firmed. Certiorari ·was granted. .

Holdings; The Supreme Court, Justice Scalia, held that:: (l) a district court has the discretion to order that a federal sentence run consecutively to an anticipated state sentence that has nol yet been imposed, and (2) district court's decision to require defendant to serve sentence consecutive to one anticipated state sentence and concurrent "'.ith another anticipated state sentence was not rendered unreasonable when state court decided to impose its two sentences con­currently.

Affirmed.

Justice Breyer, with whom Justices Kem1edy and Ginsburg joined, filed dissenting opinion.

West Headnotes

[I) Statutes 361 €=243

361 Statutes 361 VI.Construction and Operation .

361Vl(B) Particular Classes of Statutes

36lk242 Statutes Relating to Remedies and Procedure

36lk243 k. In general. Most Cited Cases

The Supreme Court construes statutes govern­ing the jurisdiction of the federal courts in light of the co=on-law background against which the statutes were enacted.

[2) Sentencing and Punishment 35GH (::;.:;;;>548

350H Sentencing and Punishment 350HIII Sentence on Conviction of Different

Charges 350HIIl(B) Consecutive .or Cumulative Sen-

tences 350HIIl(B) 1 ln General

350Hk548 k. Discretion of court. Most Cited Cases

Sentencing and Punishment 35GH (::;.:;;;>631

350H Sentencing and Punishment 350HIII Sentence on Conviction of Different

Charges 350HrII(C) Accommodation to Prior or Sub­

sequent Sentence 350Hk63 J k.. Sentence consecutive to oth­

er sentence. Most Cited Cases

Sentencing and Punishment 350H (::;.:;;;>635

350H Sentencing and Punishme~t 350HIII Sentence on Conviction of' Different

Charges ·

350HIII(C) Accommociation to Prior or Sub­sequent Sentence .

350Hk632 Sentence in Other Jurisdiction 350Hk635 k. State and federal sen­

tences. Most Cited Cases Federal judges have discretion lo select wheth­

er the sentences they impose will run concurrently or consecutively. with respect to other sentences that they impose, or that have been imposed in oth­er proceedings, including state proceedings.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

P23

Page 2 132 S.Ct. 1463, 182 L.Ed.2d 455, 80 USLW 4274, 12 Cal. Daily Op. Serv. 3513, 2012 Daily Journal D.A.R 4003,

23 Fla. L. Weekly Fed. S 231 (Cite as: 132 S.Ct. 1463)

[3] Sentencing and Punishment 350H ~636

350H Sentencing 'and Punishment 350HII1 Sentence on Conviction of Different

Charges 350HIIl(C) Accommodation to Prior or Sub­

sequent Senterice 350Hk636 k. Sentence not yet imposed.

Most Cited Cases A district court has the discretion to order that

a federal sentence run consecutively to an anticip­ated state sentence that has not yet been imposed.

f 4] Statutes 361 ~206

361 Statutes 361 VI Construction and Operation

361 VI(A) General Rules of Construction 36ik204 Statute as a Whole, and Intrinsic

Aids to Construc;tion 361 k206 k. Giving effect to entire stat­

ute. Most Cited Cases The Supreme Court must give .effect to every

clause and word of an act.

[SI States 360 ~18.63

360 States 3601 Political Status and Relations

360l(B) Federal Supremacy; Preemption 360kl8.63 k. Offenses and punishments.

Most. Cited Cases ln the American system of dual sovereignty,

each soyereign, whether the Federal Government or a State, is responsible for the administration of its own criminal justice system.

[6) Sentencing and Punishment 350H €:;;::::>636

350H Sentencing .and Punishment . 350HHI Sentence on Convicifon 'of Different

Charges 350HIII(C) Accommodation to Prior or Sub­

sequent Sentenc'e 350Hk636 k. Sentence not yet imposed.

Most Cited Cases · A district court should intelligently exercise the

power to impose.· a consecutive or concurrent sen­tence that anticipates a state sentence; in some situ­ations, a district court rn.ay hl)ve .inadequate inform­ation and may forbear, but in other situations; that will not be the case: . ·

f71 Controlled Substances 96H ~100(2)

96H Controlled Substances 96HIII Prosecutions

96Hkl00 Sentence and Punishment 96Hkl 00(2) k. Extent of punishment.

Most Cited Cases

Sentencing and Punishment 350H €::;::;>636

350H Sentencing and Punishment 350HllI Seni.ence ·on Conviction of Different

Charges 350HIII(C) Accommodation to Prior or Sub­

s.equent Sentence

350Hk636 k. Sentence not yet imposed. Most Cited Cases

Sentencing and Punishment 350H €:;;::::>637

350H Sentencing and Punishment ·3sOHIII Sentence on Conviction of Different

Charges 350HIII(C) Accommodation .to Prior or Sub­

sequent Sentence . 350Hk637 ~·Offense committed by pris-

oner or while ·under legal restraint. Most Cited Cases

Assuming that reasonableness review under Booker applied· to a district court's decision that a federal. sentence should run concurrently with or .consecutively to another sentence, district court's decision to sentence defendant to 151-month sen­tence for possessing with intent to distribute 50 grams or more of metharophetamine, to be served consecutive to any state sentence to be sub­sequently imposed for probation violation, but con­current with any _state sentence to be subsequently imposed on ·drug charge, was not rendered unreas­onable when state court subsequently decided to

© 2012 Thomson Reuters. No Claim to Orig, US Gov. Works.

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.. . . . . Page 3 132 S,Ct. 1463, 182 L:Eci2d 455, 80 USLW 4274, 12 Cal. Daily Op. Serv. 3513, 2012 Daily Journal D.A.R. 4003, 23 Fla. L. Weekly Fed. S 231 . .

(Cite as~ 132 S.Ct 1463)

make sentence for probation revocation concurrent

with its oth_er sentence; there was nothing unreason­able or impossible· about federal sentence itself,

and, although question of which of district court's

dispositions should pr~vailpresented a pi·obfom, it

was no1. one that showed sentence to be unlawful. Comprehensive Drug Abuse Prevention a11rl Con­

trol Act of 1970, § 401(a)(l), (b)(l)(A)(viii), 21 U.S.C.A. § 84l(a)(l), (b)(l)(A)(viii).

[8] Criminal Law 110 ~1156.2

J l 0 Criminal Law 1 lOXXIV Review

Casr::s

l lOXXIV(N) Discretion of Lower Court

l10k1156.1 Sentencing

11Okl156:2 k. ln general. _Most Cited

The reasonableness standard applied in review­

ing federal sentences asks whether the district court abused its discretion.

FN* *1464 Syllabus

FN* The syllabus constitutes l)O. part of the opinion of the Court but has been prepared by the Reporter ·of Decisions for the con­

venience of the reader. See United States v.

Detroit Timber & Liimber Co., 200 U.S. 321, 33 7, 26 S. Ct. 282, 50 L.Ed. !!'99.

When petitioner Setser was 'fodicted in a Texas

co.urt on drug_ charges, the *1465 State also moved to revoke the'· probation term that he was then

serving.for another drug offense. At about the same time, -Setser pleaded :guilty to federal drug charges.

The Federal District Court imposed. a 151-month sentence to run consecutively to any state sentence imposed for the probatiol) violatiof\, but .concur­rently vvith .any state sentence imposed on the new drng · charge. While Setser's federal appeal was

pending, the .state comi sentenced him to 5 years for the prob.ation violation and 10 years for the drug charge, but ordered the sentences to be served con­currently. The Fifth· Circuit affirmed the federal

sentence, holding that the District Court had author-

ity to order a sentence consecutive to an anticipated

state sentence, and that Setser's sentence was reas­

onable, even if the state court's decision made it un­

clear exactly how to administer. it.

. Held:

l. The District Court had discretion ·to order

that Setser's federal sentence !'l.\Il consecutively to his anticipated state sentence for the probation viol­ation. Pp. 1466 - 1472.

(a) Judges have traditionally had broad discre­

tion in selecting whether the sentences they impose

will run concurrently or consecutively with respect to other sentences that they impose, or that have

been imposed in other proceedings, including state

proceedings, see Oregon· v .. Jee, 555 U.S. 160,

168-169, 129 S.Ct. 711, 172 L.Ed.2d 517. The stat­

utory text and structure do not foreclose a district court's exercise of this discretion with respect to an­

ticipated state sentences. The Sentencing Reform

Ac\ of 1.984 addresses . the ccincurrent­vs.-consecutive decision, but not the situation here,

since ~he District Coun did not impose '.'multiple

te.rms of imprisonment .... at the same time," and Setser was not "already subject to" the state sen­

tences at is~l1e, 18 U.S.C. § 3584(~). This does not

mean, as Setser and the Government claim, that the District Court lacked authority to act as it did and

that the Bureau of Prisons is to make the concur­rent-vs.-consecutive 'decision after the federal s·en­

tence has"been imposed. Section 362l(b), from

which the Bureau claims to derive this authority,

says nothing about concurrent cir cqnsecutive sen­tence_s. And it is mqre natural to read § 3584(a)' as

leaving room for the exei·~ise of judicial discretion fo situations ~1ot covered. than it is to read § 362 l (b) as giving the Bureau what amounts to. sentencing authority. Setser's arguments to the contrary are un­persuasive. Pp. 1466. - 1470.

(b) None of the other objections raised by Set­ser and the Govemmerit requires a different result.

Pp. 1470 - 1472.

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23 Fla. L. Weekly Fed. S 231 (Cite as: 132 S.Ct. 1463)

2. The state. court's. subsequent decision to make the state sentences run concurrently does -not esta:Olish that. the Federal District Court imposed an unreasonable. sentence. The difficulty here arises not .. from the federal-court sentence-;--whicb is . to nm concmTently with one state sentence and con­secutively with another-but from the state court's decision. Deciding which of the District Court's dis­positions should prevail under these circumstances is a problem, but. it does not show the District Court's sentence to be unlawful. The.reasonableness

· standard for reviewing federal sentences · asks whether the district court abused its discretion, see . Gall v. UniLed States, 552 U.S. 38, 46, 128 S.Ci. 586, 169 L.Ed.2d 445, but Setser identifies no flaw in the District Court's decisionmaking process, nor

-· an)'.thing available at the time of sentencing*l466 that the court failed to consider. Vl'here late-onset facts make :it difficult, or even impossible, to imple­ment the :;entence, the Bureau of Prisons may de­termine, in the first instance, how long the District Court's sentence authorizes it to continue Setser's confmement, stibject to the potential for judici~l re-view. Pp. 1472 - 1473. .

607 F.3d I 28, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, CJ., and THOMAS, ALITO, SOTOMAYOR, apd KAGAN, JJ., joined. BREY­ER, J., filed . a ·dissenting opini0n,. · in which KENNEDY and GINSBURG, JJ.,joined. · Jason D. Hawkins, for Petitioner.

WUliam M. Jay, for Respondent, supporting the Pe­titioner. .

Evan A. Young, as rui1icus curiae, appo.inted by this comt, suppor~ing the judgm~nt below.

Jasori D. Hawkins, Counsd uf Record, Kevin· J. Page, J. Matthew Wright, Monica Markley, Richard A. Anderson, Office of the Federal Public Defend­er, ·Dailas, TX, for' Petitioner:

Dou-ald B. Verrilli, Jr., Solicitor General, Counsel

of Record, Lanny A: Breuer, Assistant Attorney General, . Michael R. · Dreeben, Deputy Solicitor Gene~al, William M. Jay, Assistant to the Solicitor General, Richard A. Friedman,· Attorney, Depart­ment of Justice, Washington, DC, for United States Supporting Petitioner.

For U.S. Supreme Comi briefa, see:201 l WL 5562516 (Reply.Brie:Q201 l \VL 3678808 (Pet.Supp.Brief)2011 WL 3739471 (Pet.Brief)

Justice SCALIA delivered the opinion of the Court. We consider whether a district court, in senten­

cing a. defendan( for a· federal offense, has authority to order that the federal senbnce be consecutive to an anticipated state sentence -that has not yet been imposed.

When officers of the Lubbock Police Depart­ment arrested petitioner Monroe Setser for possess­ing methamphetamine, he was already serving a 5-year term of probation _imposed by a Texas court for another drug offense. Setser was indicted in state court for po_ssession with intent to. deliver a controlled substance, and the State. also moved to revoke _his. term of probation. As often happens in drug cases, the federal authorities also got involved. A federal grand jury indicted Setser for possessing with ·intent to distribute 50 grams or more cif methamphetarnine, 21 · U.S.C. § 84l(a)(l); (b)(l )(A)(viii), and he pleaded.guilty.

Before the federal sentencing hearing, a proba­. tion officer calcula1.ed the·· applicable Guidelines range to be I2 l to 151 · m·onths'- imprisonment. ·cit­ing precedent from the United 'States Com:t of Ap­peals for the Fifth Circuit, United States v. Brown, 920 F.2d 12 l 2 (1991) (per curiam), he indicated that the District Court had discretion to make Set­ser's sentence either concurrent with ·or consecutive to any sentence anticipated in the_ separate state­court proceedings. Setser objected, arguing that the District Court lacked such authority.-The court nev­ertheless made the sentence' of 151 ·months -that it imposed consecutive to any ·state sentence imposed

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23 Fla. L. Weekly.Fed. S 23 1 (Cite as: 132 S.Ct. 1463)

for probation violatim1; but concurrent with any state sentence imposed on the new drug charge. Setser appealed. ·

'*1467 Vlhile Setser's ·appeal was pending, the stak. court· sentenced hinr to a prison term of 5 years for probation violation and 10 years on the new drug ch~rge. It ordered that these sentences be served concurrently. Setser then made before the Court of Appeals, in addition to the argument that the District Court had no authority to order a con­secutive sentence, the argument that his federal sen­tence was unreasonable because it was impossible to implement in light of the concurrent state sen­tences.

The Court of Appeals for the Fifth Circuit af­fi;1n~d; 607 F .3d 128 (2010). Following ·its earlier Brown decision, the court held that the District Court did have ·authority to order a consecutive sen­tence. 607 F.3d, at 131-132. lt also held that Set­ser's sentence was ·reasonable, even if it was " 'partially foiled' ".by the state court's decision. ·fd., at 132'-133. We granted certiorari, 564 U.S.--, 131 S.Ct. 2988, 180 L.Ed.2d 821 (2011), and ap­pointed an amicus curiae to brief and argue this case in· support of the judgment below, 564 U.S. -· -, 131 S.Ct. 2988, 180 L.Ed.2d 821 (2011).

n Before proceeding· further, it is impoJtant to be

clear about what is at issue. Setser does not contend that his federal· sentence must run concurrently with both state sentences imposed after his federal sen­tencing hearing. He acknowledges that someone

must answer "the consecutive versus concurrent question," Brief for Petitioner 27, and decide how the state and federal sentences will fit together. The issue here is who will niake that decision, which fo tum determines when that decision is made~ One possible answer, and the one the fifth Circuit gave, 'is that the decision belongs t~ the Federal District Court at the federal sentencin~ hearing.

The concurrent7vs.-consecutive· decision has been addressed by § 212(a)· of the Sentencing Re-

form Act of 19.84, · 18 U.S.C. § 3584, reproduced ip

full as Appendix A, infra. The first subse.ct.ion c;f

thai provision, which says when concur.rent and consecutive sentences may l?e imposed, and spe­cifies which of those dispositjpps will be assumed in absence of indtcation by the sentencing judge, does not cover the situation here. Jt addresses only "multiple tem1s of imprisonment .. , . imposed ... at the same time" and "a term of imprisonment ... im-posed on a defendant who is already subject to an undischarged term of ·imprisonment." § 3584(a). Here the state sentence 'is not imposed at the same time as the federal senteuce, and the defendant was not already s11bject to that state sentence.

Setser, supported by. the Government, argues that, because § 3.584(8) does not cover ~his situ­ation, fhe District Court lacked authority to act as it did; and that the concurrent-vs.-consecutive de­cision is therefore to be made by the Bureau of Prisons at any time after the federal sentence has been imposed. The Bureau. of Prisons is said to de­rive this authority from 18 U.S.C. § 362'1(b) (2006 ed. and Supp. IV); reproduced in full as Appendi:x B, infra.

On· its. face, this provision says nothing about concurrent crr consecutive sentences, but the Gov­ernment explains its position as follows: Section 362l(b) gives .the Bureau the authority to order that a prisoner serve his federal sentence in any .suitable· prison faci:lity "whether rnail1tained by the Federal Government or otherNise:" The Bureau may there­fore .order that a prisoner serve his federal sentence in a slate prison. Thus, when. a person subject to a federal sentence is ·serving a state sentence, the Bureau may designate the state prison as the place of imprisonment for the *1468 federal' sen­tence~ffectively making· the two sentences cori­current....:....Or decline fo do so--effectively making

. FNJ · . . · them consecutrve. Based on §§· 3584(a) and 362l(b); Setser and the Government argue that the concurrerit-vs.-consecutive decision, under 'the cir­cumstances presented here, is committed exclus: ively to the Bureau of Prisons.

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23 Fla. L. Weekly Fed. S 231

(Cite as: rn S.Ct. 1463)

FN J, . The Bureau . of Prisons sometimes

makes .this designation .:while the prisoner

is in .state .custoqy. and sometimes makes a

nunc pro tune designation once the prison­

er enter!>' federal custody.

[1][2)[3] It is fundamental that we constrne

statutes governing the jurisdiction of the federal

courts in light of "the common-law background

against which the statutes ... were enacted," New .Orleans Public Service, inc. v. Council of City of New Orleans, 491 U.S. 350, 359, 169 S.Ct. 2506, ·

l 05 L.Ed.2d 298 (1989), and the same approach is

appropriate here, where the issue concerns a matter

of discretion traditionally committed to the Judi­

ciary. Judges have long been understood to have

discretion to select whether the sentences they im­

pose will run concurrently or consecutively with re­

spect to other ?entences that they impose, or that

. have beeri imposed in other proceedings, including

state proceedings. See Oregon v. Ice, 555 U.S. 160,

!68-169, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).

And a large majority of the federal appellate comts

addressing the question have recognized a siri1ilar

authority in the c.ontext here, where idede.ral judge

anticipates a state· sentence that has not yet been

imposed. See Salley v. United States, 786 F.2d 546, 54 7 (C.A.2 J.986); Anderson v. United Stales, 405

F.2d 492, 493 (C.A.)O 1969) (per curiam); United States ex re/ Le;ter v. P;rker, 404 F.2d 40, 41~2 . . . (C.A.3 1968) '(per cw·iam); United States v: Kan-

ton, 362 F.2d 178, 179-180 (C.A.7 1966) {j;er curi~ am); but see United States V, E;si~an, 758 F2d . . . ' ~l . 1315, 1317 (C.A.9 1985) . We find nothing in the Sentencing Reform Act,' or in any othyr prwi­

si~n of law, to show that Congress foreclosed the

exercise of distriCt courts' se~tencing discretion in

these circumstances.

FN~. The dissent is incorrect to say, post,

at 1477 - 1478 (opinion of BREYER, J.),

that only the Second Circuit, in Salley held . to that effect S·o did the Seventh Circuit' in

Kanton and the Tenth Circuit in Anderson. The dissent says that Ai1der·son addressed

only the tjU:esti~n !'~hether ·a federai: sen~ .tence runs froi:n the date of its imposition

or from the date of ~ntry into federal .cus­

tody," post, at 1478. Tha~ is true enough

(and it is true.of Kanton as well); but an­

swering that question in a.manner that up­

held the conseCLltive federal sentence (i.e., it runs from the date of entry into federal

custody) necessarily upheld the sentencing

court's authority to impose the consecutive

federal sentence. ln fact, Anderson con­

fronted and specifically rejected the de­

fendant's argument that " '[n}o court has

the authority to impose a sentence consec­

utive to something that does not exist,' "

405 F.2d, at 493, And, finally, so did the

. Third Circuit in Lester. The dissent says

tha:t Lester addressed only the question

"whether a sentence was insufficiently cer­

tain for purposes of due process," post, at

1478. But that was the defendant's princip­

al reason (as ·it appears also .to be the dis­

sent's. princip3;1 ~eason). for asserting that

the. sentencir:tg court had no authority to

impose a . consecutive sentence. And the

Third Circuit rejected not only that reason

bu.t. "[o}ther arguments ~dvanced by [the

defendant}" attac°bng tlie consecutive' sen-tence, 404 F.2d. at 42. ·

The ·only contrary federal appellate de­

cision . rendered before the Sentencing

· Reform Act took effect relied upon "18

0.S.C. § 4082 (1982 ed.) (the prede­

cessor of§ 3621) and§ 3568 (1982 ed.)

(repealed by 98 · Stat.1987), which

provided .that a federal sentence "shall

commence to run from the date on which

such· person is received" into federal cus­

tody. See lJniied Stales v. Eastman, 758

F.2d 1315, 1317 (C.A.9 1985).

Setser's main contention ·is that § 3584(a) has

this effecl But that provision cannot sustain the

weight that Setser. asks it to bear. In essence, he

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23 Fla. L.Weelcly Fed. S-231 (Cite asr 132 S.Ct.1463)

reads tbe·*H69'first sentence in§ 3584(a) to say that "terms [of imprisonment] may run concurrently or consecutively" only. •i[i]f m~itiple terws of im­prisonment are ·imposed ... at the same time, or if a term of imprisonment is imposed on a defendant who is alread:v .subject to an undischarged term of imprisonmenl." . Since the Distri.ct Court was . not imposing the· state sentence and since it was 'not already imposed, the sentence could not be ordered to run consecutively. But if the text is exclusive-if the addition of only is correct-the provision for­bids not only the imposition of consecutive sen-

. tences, but the imposition of concurrent ones as well. And yet, as Setser acknowledges., it must be one or the other; someone must decide the issue.

Setser's response is that, read in context, the sentence speaks only to district courts. Under the circumstances at issue here, he says, the federal and state se~tences still ~ight run either concurrently or consecutively, but just. not at the discretion of the Di.strict Court. That .is an odd parsing of the text,

'which makes no distinction between the district court and the Bureau of Prisons. The placement of § 3584 does ii1deed suggest that it is directed at dis­

. tric't courts-but that is likely becau&e Congress contemplated that only district courts would have the authority to make the concurrent- ' vs.~consecutive decision, not ·_because Congress meant to .]eave· the Bureau unfettered. Indeed, the Bw·eau already follows the other: directives in § 3584(a). See Brief for United States 35. Fcir ex­ample, if the distnct COUJi imposes muitip]e terms of imprisonment at tbe same time, btit 'fails to ad­dress the conciirreint-v·s.-consecutive ·issue, the teims "run concurrently," § 3'584(a), and the Bur­eau is not free to use its "place of imprisonment" authority to achieve a different result.FN3

FN3. The Gove~erit contends that the Bureau applies 'the default rules in _ § 3584(a) "[a]s a matter of discretion" but is not " 'bound' " by that subsection. Reply Brief for United States 15, n. 5. We think it ·implausible that the effectiveness of those

ruies-of § 3584(a")'s prescription, for ex­ample, that "[m]ultipTe terms of imprison­ment imposed ·at diffefrnt 'times run con­secutively unless the court orders that the terms are _ to run concur!ently'.'-depends upon the "discretion" of the Bureau.

The Latin ·maxim ·on wliich Setser relies-ex­pressio unius est exclusio alterius-might have ap­plication here if the provision in question were a confeLTal of authority on district courts. Giving sen­tencing authority in only specified circumstances could be said to imply that it is withheld in other circumstances. Section 3584, however, is framed not as a conferral of authority but as a limitation of authority that already exists (and a specification of what will be assumed when the exercise of that au­thmity is ambiguous). It reads not "District courts shall have authority to impose multiple terms of im­

prisonment on a defendant at the same time, etc." but rather "If multiple terms of imprisonment are imposed on a defendant at the same time, [etc.]"-,-quite clearly assuming that such authority already exists: The mere acknowledgment of the existence of ce1iain pre"existing authority (and reg­ulation ofthat authority) in no way implies a repeal of other ·pre-existing authonty. And that is espe­cially true when there ls an obvious .1'eason for se­lecting the instances of pre-existing authority that are addressed-to_ wit, that they are the examples of sentencing discretion most frequently encountered.

Moreover, expressio ·untus est· exclusio· alterius is a double-edged sword. Setser thinks it suggests that, because § 3584(a) recognizes judicial discre­tion in scenario A and scenario B; there is no siich discretion in scenario C. But -the same 'ma:Xim shows *1470 much mcire convincingly why § 362l(b) cannot be read fo give the Bureau of Pris­ons exclus'ive authority to make the sort of decision c6=itted to the district court in § 3584(a). V.'lien § 3584(a) specifically addresses decisions about concurrent and consecutive sentences,' and makes no mention of !he Bm'eau's role in 'the process; the itnplicaticm is that ho such role exists: And that

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23 Fla. L. Weekly Fed. S 231·

(Cite as: 132 S.Ct. 1463)

conclusion is rei~forced by application of the sa~e maxim (properly,· ii+ this -instance) to § 362i(b).

-which is a· coriferrnl.of authority on the Bureau· of

Prisons, but does not confer authority. to choose between concu~rent and co~se~utive sente~ces. ·Put

to the choice, we belie~e it is much more natural to

read § 3584(a) as not containing an implied "only,"

leaving room for the exercise of judicial discretion in the situations not covered, than it is to read § 362l(b) as. giving the· Bureau of Prisons what amounts to sentencing authority.

III None of the other objections to this approach

> raised by Setser and the Government require a dif­

forent result.

, [ 4] Our 'decision today follows the interpretive

C• iule they invoke, that we must "give effect ... to

: every clause and word'' of the Acl United States v.

. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99

L.Ed. 615 (1955) (internal quotation marks omit-. ted). The first sentence in § 3584(a) addresses ·the

most common· situations .in which the decisjon

between concurrent and consecutive sentences musf be made: where two sentences are imposed at the

same time, and where a sentence is imposed sub­

sequent to a. prior sentence that has not yet been fully served. It says that the district court has dis­

cretion whether to make the sentences concur.rent or

consecutive; except' that it may not make consecut­ive a sentence for "an ·attempt" and a sentence for

an "'offense that was the sole ·objective of the at­tempt." And the last two sentences of§ 3584(a) say what will be assumed in ·those rwo common situ­ations if'the court does not specify that the s·entence

is concurrent or consecutive. Giving those disposi­tions full effect does not demand that we regard them as eliminating sentencing discretion in other situations.

· Setser and the Gove~ent both ~gge~t ·that~ beca,use ·§ 3584(b) directs courts to consider· the seritenc'ing factors in.§ 3553(a) in making these de­cisions, and because some of those· factors will be difficult to 'apply wiili respect to anticipated sen-

tences, the Act caru1ot be read to allow judicial ilis­

c~eticin ·in these circumstances. One . cannot .be S\lfe

that the serit~nce ilnposed is "sufficient, hut not

greater thari necessary," § 3553(a), the argument

goes, if one does not kriow how long it wiil actually be.' But the. district judge faces the same uncertainty

if the concun·ent-vs.-consecutive decision is left for

later resolution by the Bureau of P.risons; he does not know, for example, whether the 5-year sen­

lence he imposes will be an actual· five years or will be simply swallowed within another sentence. To

be sure, the Bureau of Prisons, if it waits to decide the matter until after the state court has imposed its

sentence, will know for sure what sentences it is

dealing with. But the Bureau is not charged with applying § 3553(a). The factors that guide the

.agency\s "place _of imprisonment" decision do in­

clude "the nature and circumstances of the offense"

and "the history and characteristics of the prisoner,"

§ 362l(b)(2), (b)(3) (2006 ed.)-factors that are, to be sure, relevant to sentencing but also relevant to

selection of the place of confinement; but they also include factors_ that make ltttle, .if any, sense-in the

sentencing context, such as. "i:he ,resources· of the fa­

cility contemplated"*l471 an.ct Whether the state fa­

cility "meets rninimuni standards of health arid hab­itability," § 3621 (b ), (b )(l ). (These factors confirm

our view that § 3621 is not a sentencing provision but a place-of-confinement provision.) H is much

more natural for a judge to apply the § 3553(a) factors in making all ('.ODCUlTent-\'.S.-COnsecutive de­cisions, than it· is for some ·such. decisions to be

made by a judge applying § 3553(a) faQtors and

pthers by. the Bureau of Prisons applyi,ng § 3621 (b) factors.

· [5] The final objection is that principles of fed­

ei·alism and good policy do riot allow a district court to make Lhe concurrent"Vs.-conse·cutive de­cision when it does not ·hav·e before it all :of the in­

formation about the anficipated state sentence. As fo~ principles of federnlism, it. seems to us 'they cut in precisely the opposite direction. In our American system of dual sovereignty, each' sover­elgn-\vhether the Federal Government or a

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(Cite as: 132. S.Ct. 1463)

. . . . . . State-:-is .responsible for "the administration of [its

own] criminal justice syste[rn]." Jee, 555 U:S., at

170, 129 S.Ct. 711. Ifa prisoner like Setser starts in state ·custody, ·serves his state S'entence, ·and then

moves to federal custody, it. will' always be the Fed­

eral· Govemment--':-whether the district court Ol' the Bureau of Prisons-that decides whether he will re­

ceive credit for the time served in state custody.

And if he serves his federal sentence first, the State

will decide whether to give him credit against his

state sentences without . being bound by what the district court or the Bureau.said on the matter.· Giv-.

en this framework, it is always more respectful of the State's sovereignty for the district court to make

its decision up front rather than for the Bureau of Prisons to make the decision after the state court

has acted. That way, the state comt has all·of the in-. .r . ' b " . . h . FN4 Th G .. , iormat10n .. e1ore it w en ·It acts. e overn-

ment's position does not promote the States' in­

terest-just the interests of the Bureau of Prisons.

FN4. Setser notes that the text of§ 3584(a)

does not distinguish between state and fed-. era\ sentences. lf a district court·can 'enter

a consecutive sentencing order in advance

of an anticipated state 'sentence, he asks, what is to stop it from issuing such an or­der In advance of .an anticipated federal

sentence? Ji cbuld be argued that§ 3584(a) 'impliedly prohibits such an order because

it ·gives that decision to the federal court

that sentences the defendant when the oth­'er senteiJce ·is · "aiready" impose~and

does not speak (of coU:rse) to What a state

coUrt must do Vihen a· sentence has already been imposed. It suffices' to say, howe\rer,

· that this question is· not before us.

[6] As for good policy: The basic cfaim of Set­

ser, the Government, and the dissent is .that when it comes to.sentencing, later is always better .because the decisionmaker ·has more information. See, e.g.,

post, at 1477 ("[A] sentencing judge typically needs detailed infonn:atio.n when constructing a multiple­count or multiple-conviction Guideline Sentence").

That is undoubtedly th1e; bi.it '".hen that desi,derat­

um is applied to the· statutory .structure before us

here it is overwhelmea by text, by our tradition of judicial sentencing,FNS and by. the. accompanying

*1472 desiderafum that sentencing no.t be left. to

employees of the same D%Nrtment of Justice that conducts the 'prosecution.

6 Moreover, when the

district court's failure to "anticipat[e] developments

that take place after the first sentencing," Brief for

United States 29, produces unfairness to the de­

fendant, the Act provides a mechanism for relief.

Section 35 82( c )(!)(A) provides that a district court;

FNS. To support its vi.ew that Congress at1-

thorized the Bureau lo make concurrent­vs.-consecutive decisions, the dissent relies

. on the fact. that the Executive long had wnat is effectively sentencing authority in its ability to grant or deny parole. That is a

· particularly curious power for the dissent

to rely upon, inasmuch as most of the dis­sent discusses (in great detail) the Senten­

. ·cing Ref01m Act, , :whose principal object­

. Ive was to elim~ndte the Executive's pai·ole

power. Curiouser stiiJ· is the dissent's in-

vocation of the Guidelines system, which "tell[s] the sentencing.judge how, through

the use of partially .concurrent' and partiall);

consecutive se1itences, to build a total sen­

tence that ·meets the Guidelines' regui!·e­menls." Post, at · 1476. These

"instructions," · ibid., do not cover yet­

to-be-imposed ·sentences, the dis~enf says,

because· "the sentencing judge normally

does not yet know enoll.gh about the beha­vior that underlies (or will underlie)" such

a sentence. Post,. at 1476. That ex.plains, perhaps, why the Guidelines' "instructions''. to judges do not cover them._ But why d~ not the Guidelines "instruct." the Bureau of Prisons how to conduct its concurrent/ con­secutive senlencing? lf fue reas;n is (as we susp~ct) ·that the Sente~cing .:Co~i~sicin d.oes not have, ·or 'does not believe it has, authority to "instruct'.'. the· Bureau of Pris-

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23 Fla. L. Weekly Fed. S·23 l

(Cite as: 132 S.Ct .. 1463) .

o~s, >the dis~ent's · entire ~rgurrient based

upon what it calls "the purposes and the m·echanics of the SRA's se~tencing i;ys­

terfi.," 'post, at 1477, falls apart. Yet­

to-be~irupo.sed sentences are riot withinthe system at an; and we are sirnply left with

the question whether judges or the Bureau of Prisons is responsible for them. For the

reasons we have given, we think it. is judges.

FN6. Of course, a district court should ex­

ercise the power to impose anticipatory

consecutive (or concurrent) sentences in­

telligently. In some situations, a district

court may hsve inadequate information and

. may forbear, but in other situations, that ·will not be the case.

:"i.ipon motion of the Director of the Bureau of

Prisons, may reduce the term of imprisonment ... after considering the factors set forth in section

3553(a) to the extent that they are applicable, if it

finds that ... extraordinary and compelling reas­

ons warrant such a reduction [or that .the defend­ant meets other criteria for relief].":.

IV [7] Setser argues that, even if the Distrjct

Court's consecutive order . was consistent with § 3584(a), it i;nade his sentence impossible lo imple­ment and therefore unreasonable under the Act, see

United States v. Booker, 543 U.S. 22~261-262, 125 S.ct. 738, 160 L.Ed.2d 621 (2005), 7 in light

of the State's decision to make bis sentences con­current. We think not. There is nothing unreason­able-let alone 'inherently ·impossible-about the

sentence itself. Setser · is · ordered · to serve· a

151-month term in federal· custody; and that sen­tence should run c6ncurrwtly with one state sen­tence and consecutively with another.

FN7. We have never had occasion to de­cide whether reasonableness review urider

Booker. applies to a court's decision that a

federal sentence should run concmTently

with or conseclitive]y. to another sentence.

1'he Courts of Appeals, however, :generally

seem to agree that such review applies.

See, e.g., United. States v. Padilfa, 618 F.3d 643, 647 (C.A.7 2010). (per rnriam);

United State.~· v. Matera, 489 F.3d 115,

123-124 (C.A.2 2007). For purpose ~f the

present case we assume, without deciding, that it does.

[8] The difficulty arises not from the sentence, but from the state court's decision to make both

state sentences concurrent. \Vhich · of the District

Court's dispositions should prevail.: that his federal

sentence run consecutively to the sta.te sentence on

the parole revocation charge, or that his federal sen­

tence run concmTently with the state sentence on

the ~ew drug charge? lf the fed~~] sentence is ad­

ded to the stale sentence it will not be concurrent with the new drug charge, and if it is merged in the

state sentence it will not be consecutive to the pa­role revocation charge. This is :indeed a problem,

but not, we .think, one that shows the District Court's sentence to be unlawful. The reasonableness standard we apply in reviewiilg f~dera] senten.ces

asks whether the district court abused its discretion. See Gatl 1;. U1;ited.States,' ssi U.S. 38, 46, 128

S.Ct. 586,_ 169 L.Ed.2d 445 (2007). Setser identifies no flaw 1n the District Court's· *1473 decisionmak­

ing process, nor anything available at the time of

senten.cing that the District Court failed to consider.

That a sentence is thwarted .does not mean that it was ·.unreasonable. If a ·district court ordered, as a

term of supervised release, that' a defendant main­tain a steady job, but a ~ubsequent disability rendered gainful_ employment infeasible, we doubt that one would call the original "sentence an abuse

of dis~retion. There wiil often be late-onset fads that n;aterially alt~r a. prisoner's position a.nd that

make it difficult, or even impossible, to implement his sent_ence. ·

This is where the Bureau· of Prisons comes in-which ultimately has to delermine how long 'the

Distri'ct Court's sentence authorizes it ·to continue

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2~ Fla. L. Weekly Fed. S 231 . ·

(Cite as: 132 S.Ct.:1463)

Setser's confinement. Setser is free to urge the Bur­

eau to credit his time served in state court based cin

the District Court's jUdgrrient that the federal sen­

tence run concurrently with the st~te sentence' for the new drug· charges. If the Bureau initially de­

clines to do so,' he may raise his claim through0

the Bureau's Administrative Remedy Program. See 28

CPR§ 542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus, See 28

U.S.C. § 2241. We express no view on whether

those proceedings ~1ould be successful.

* * *

Because it was within the District Court's dis­

cretion to order that Setser's sentence run consecut­

... ively to his anticipated state sentence in the proba­,,. tion revocation proceeding; and because the state

court's subsequent decision to make that sentence

concuiTent with its other sentence does not estab­. lish that tlie District Court abused its discretion by

imposing an unreasonable sentence; we affirm the

judgment of the Court of Appeals.

Jr is so ordered.

APPENDIXES

A 18 u:s.c. § 3584

. "Multiple sentences of imprisonment

"(a) IMPOSITION OF CONCURRENT OR CONSECUTIVE TERMS.-If multiple . terms. of

Imprisonment are imposed on a defendant at .the same time, or if a term of imprisonment is imposed

on a defendant who is already subject to an undis­

charged term of imprisonment, the tenns may run concurrently or consecutively,.except that the terms

may not run consecutively for. _an attempt and for

another offense tha( .was the sole objective .of the attempt. Multiple terms_ of imprisonment imposed

at the .same time run concurrently unless the court orcJ,ers or the statute mandates that the terms are tQ

run consecutively. Multiple terms of imprisonment imp9sed at different ti.mes run consecutively unless the court orders that the terms are to run concur-

rently.

"(b) F.A.C':f,'OR$ TO BE CONSIDERED IN Ilvi­

POSING CONCURRENT OR CONSECUTIVE TERMS.:--The qourt,' in determining .whether the

terms imposed are to be ordered to run concurrently

or consecutively, shall consider, as to .each offense

for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).

"(c) TREATMENT OF MULTIPLE SEN­TENCE _AS AN AGGREGATE.-Multiple terms

of imprisonment ord_ered to run consecutively or

concurrently shall be treated for administrative pur­poses as a single, aggregate term of imprisonment."

B · 18 U.S.C .. § 362l(b) (2006 ed. and Supp. IV)

"PLACE OF IMPRlSONMENT.-The Bureau of Prisons shall designate the place of the *1474

prisoner's imprisonment. The Bureau may designate

any available pena·] 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

w.ithin or wifhout the judicial. district in which the

person. was eonvicted, that the Bure11u determines to be appropriate and suitable, considering-

"(1) the resources of the facility contemplated;

"(2) · the nature and circumstances of the of­

fense;

.''(3) the hi.story a~d characteristics of the pris~ oner;

"(4) any statement by the collii that imposed the sentence-

"(A) concerning the purposes for which the

sentence to imprisonment was determined to be warranted; or

"(B) reco=ending a type of penal or cor­rectional .facility as appropriate; and

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((it" as: 132 S.Ct 1463)

"(~) any per4nent policy statement issu.ed by

th.e. Sentencing Commission pursuant to sec.ti~n

994(a)(2) of litle 28. ·

. "In designating the place of imprisonme~t 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, hav­

ing regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility

to another. The Bureau shall make available. appro­priate substance abuse. treatment for each prisoner the Bureau determines has a trealable condition of substance addiction or abuse. Any order, recom­

mendation, or request by a sentencing court that a convicted person serve a ierm of imprisonment in a

community corrections facility sf;all qave no bin.d­

ing effect on the authority of the Bureau under this sechon to deteIT11ine or change the place of impris­

omrient ofthatpei:son."

Justice BREYER, with ~born Justice KENNEDY and Justice·GI;NSBURG join, dissenting.

The Sentencing Reform Act of 1984 seeks to

reform. federal sentencing practices by creating a federal Sentencing Commission instructed to devel­op . and to prbmu1gate federal Sentencing

Guideli~es: Tlie provision of the Act here at issue

concerns "multiple sentences."· See 18 U.s:c. § 3 584. It brings into focus a· difficult Guldelines-re­

lated problem: How should a federal judge sentence

an offender where the offender has been convicted of having violated se\1eral different statutes? The convictions rriay have takeh place all at the. same tilne. Or, some· convictions might have taken place at an earlier time, .the offender may already have

been sentenced to prison, arid indeed the offender may still be serving thar sentence .. The ·federal

judge must decide the extent to which a sentence at­tached to one conviction sh.ould. be served concur­

rently or consecutively with sentences attached to other convictions.

An understanding of the nature of this general

problem and the Sentencing Commission's statutor­ily foreseen solutions will· help the reader under'~

stand why, in my view, the better legal answer to

the question befcire us is that a federal sentenci~g judge does not have the po\ver to . order that. a "federal sentence be consecutive to an anticipated

state sentence. that has not yet be.en imposed." Ante, at 1466.

The Sentencing Refo1m Act (SRA) has two

o,;erall objectives. See Barber v. Thomas, 560 U.S. --,·--., 130 S.ct. 2499, 2505, 177L.Ed.2d1

(201 O); see also United States Sentencing Commis­sion, Guidelines Manual § 1A3, p. i .2 (Nov. 1987) *1475 (USSG) (addressing statutory objectives).

First, it seeks greater honesty in sentencing. Instead of a parole commission and a judge trying to

second-guess each other about the time an offonder -~rill actually serve in prison, the SRA tries to c.reate

a sentencing system that will require the offender actually to serve most of the sentence the judge im­

poses. See Mistretta v. United States, 488 U.S. 361,

367, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ("[The SRA] makes all sentences basically determinate"). Second,. the Act seeks greater fairness in sentencing

throt1gh the creation of Guidel.ines that ·wm increase

the· likelihood that twci offenders who engage. in roµghly similar. criminal behavior will r~ceive roughly similar sentence;:s. See Barber, supra, at

--, 130 S.Ct., at 2505 (noting that Congress

sought to. achieve, in part, "increased· sentencing . uniformity").

To ·implementthese reforri:ls; the SRA instructs

the Commission to write Guidelines thatinevii:ably move in the direction of increased "rear offense" sentencing. See USSG § 1A2, p. 1.1. (describing how statute, e.g., by insisting upon categories of of­

fense behavior and offender characteristics, leads fo this . result). In principle, real offense sehtenCi'ng would impose' the same sentence upon different of­

fenders who engage in the same real conduct irre­spective of the statutes . under ·which they .are

charged. Real offense sentencing, for example, would mean that .two i~dividuals, both of whom rob

a bank and injure a teller, would receive the same

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23 Fla. L. Wee!py Fed. S 231 · - -

(Cite as: 132 S.Ct. 1463)

sentence even _if_ the _Go_vernment charges one of

them un9er a _bank robbery statute and the other. un­

der an assault. statute. See, e.g., USSG App. A

(Listing federal statutory offenses, while keying them to specific individual Guidelines that determ­

ine sentence based-upon likely actmrl behavior). in the event,. the Guidelines move the sentencing sysc

tern in this direction while simultaneously recogniz­ing that other factors require considerable modifica­

tion of the real offense principle. See USSG § 1A4(a) ("real offense vs. charge -offense senten­cing").

Nonetheless the "real offense" goal influenced the Act's, and the Commission's, objectives in re­

spect to the sentencing of an offender with multiple

convictions. Insofar as several convictions arise out of- the same COUrSe of_ behavior, the sentenCing judge should treat the crimes underlying the convic·

-_ tions as if they were 'ail part of a single crime and

sentence accordingly. But, insofar as the crimes un­derlying the convictions arise out of different

courses of behavior, the sentencing judge should

treat' the crimes underlying the convictions as if they were not part of a single crime and should see

that the ultimate sentence reflects that fact.

To achieve these objectives is easier said than done. For one thing, it requires a definition of what

counts as the - same course of beh'.avior. The

Guidelines set forth that definit!on in § lBl.3, p.

1.1-7 ("Relevant" Conduct"). For another thing," stat­

utes and Guidelines that set. forth related instruc­tions must take into account tbe fact that senten­cing-related circumstances can prove highly com­plex. To take a fairiy simple example, suppose that

a defendant is convicted of both robbery and imper­sonating a federal official; that he has engaged in a single course of·behavior, but that neither the robe

bery nor the impersonation Guidelines take account of the other.· Instructions' about concurrent/ consec~ utive sentences must give' -the judge an idea about

~hat to do in-such a-caSe. They must also take ac­count of the fact that a maximum penaltY contained

.in a stati.ite wiU trump a greater penalty contained

in a Guideiine .. And they must tell the.judge.(faced

with mul~iple convictions) what to do where that is so.

*1476 Reflecting these, anct .othe;, complexit­

ies, the Guidelines contain complex inst!Llctions

about how to sentence where the offender is con~ victed of "Multiple Counts," see USSG § 3D, or

has previously been convicted of a crime for which

he is "subject to an Undischarged Term of Impris­onment," see § SGl.3. The Guidelines also tell the

sentencing judge how, through the use of partially "concurrent and partially consecutive sentences, to

build a total sentence that meets th.e Guidelines' re­

quirements. See § § 5G 1.2( d), 5G 1.3.

With this background it becomes easier to un­derstarid fue statutory provisions before us: They

reflect the fact that Congress expected sentencing

judges; when faced with a defendant convicted of

multiple crimes, to construct a sentence that would, at least to a degree, reflect the defendant's real un­

derlying behavior. Where two convictions .reflect in whole or in partthe same behavior, the overall sen­

tences should reflect that fact, say by running con­currently.

Accordingly, the statute says that "[rn)ultiple terms ·of imprisonment imposed at· the same time run concurrently unle-ss ·the court- orders or the stat­

ute -mandates_ that the tem1s are to run consecut­

ivel-y." 18 U.S.C. § 3584(a). And that statement re­

flects the fact that often (but not alw.ays) multiple convictions after a single trial will reflect ·a single

course ·of behavior"( different .aspects .of which viol­ate ·different criminal statutes). The statute also says

that "[rn)ultiple terms of -imprisonment imposed at cliff~rent times .run consecutively unless the court orders that tl:ie ten:Ils are to run concurrently." Ibid. This statement reflects the fact that severar'convic­

tions imposed after different trials are more likely to reflect unrelated behaviors. In the first insta~ce that the statute addi-esses, concurrent sentences are more likely to be appropriate; in the second, con­

secutive sentences are morelikely to be appropri­ate. But that is not always so. Thus the statutory

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pfo\iisions ass~r:e sentendn~ judges that they retairi

the power to reach a different ~~nclusion. . · .

At this p;int; I would a'sk the question that this

case poses. Why does the·statute ·say nothing about

· a sentencing judge imposing a sentence that might run consecutively with a· sentence that a (ty'pically

different) judge, has not yet irnposed ? The ansV.'er

is this: Because the sentencing judge normally does

not yet know enough about the behavior that under­lies (or will underlie) a sentence that has not yet been imposed. Normally the sentencing judge does

not know, for example, (a) what that sentence will

be, (b) whether the behavior underlying that later

sentence constitutes part of the same course of be­havior that underlies the ·present sentence or, in­

stead, is totally separate from the behavior underly­ing the present sentence, or (c) is partly the same

·"' and partly. different. Even if the judge has an. idea

about what will happen, he does not know precisely

what will happen; .and precision in this matter is

important.

In a word, the i;entencing judge normally does

not yet know enough about what will happen in the senterici~g-pmceeding-yet-to-come to be able to

construct a sente~ce that meets the Guidelines' in­sfructions and 'which, iri doing so, helps to assure

that different individuals who engage in the same criminal ·behavior will typically receive roughly

coinparable sentences.

Of course; the Court is colTect when it says that eventually the sentences will run (either wholly in or in part) ·eoncunently or consecutively. And

someone inust decide how they will .run. Ante, ·at 1466 ~ 1467. Butthe Court is not ·colTect when it

says . that this someone. should be the first federal

sentencing judge. Rather, the Executive and Judi­c,ial Branches have devised *1477 a system that can

dr11w upon the intentions of that first federal judge, while applying' them in light .of actual knowledge about what .later happened .. The· Bureau· of Prisons

(BOP) in effect makes the consecutive/concurrent decision after considering, among other things,

"any statement by the court that imposed the sen-

tence," including statements "concerning .the pur­

poses for which the sentence to imprisonment was

determined to be warranted." 18 U.S.C. §

362 J (h)( 4)(A). And its program statement provides that it will r~~iew the "intent_ of the.federal senten­cing' co1~rt" when. deciding whether in effect to

make an earlier federal, and later state, sentence

c~ncurrent or consecutiye .. Dept Qf Justice, BOP, Program Statement 5160.05: Designation of Staie

Institution for Service of Federal Sentence 4 (Jan,

16, 2003). The Bureau exercises this authority by designating (or refusing to designate) the state pris­

on where an offender is or will be incarcerated pur­

~uant to his state sentence as the place v>ihere he

will serve his federal sentence. 18 U.S.C. § 362l(b)

This exercise' of authority ·by the Executive

Branch is not constitutionally surprising. After all,

"federal sentencing" has "never ... been thought to

be assigned by the Constitution to the exclusive jur­

isdiction of any one of the three Branches of Gov­ernment.;, Mistretta; 488 U.S., at 364, 109 S.Ct.

647. And,' until ·fairly recently the federal BOP de­

cided (via parole) the far more glob~] question of just how long (within broad limits) each imprisoned ~ffender ·\vould serve. See id., at 367, 109 S.Ct.

647. Thus, the present Bureau invoivement repres­

ents a further practical accomiriodation to a fact about the world, namely that th.e initial s'entencing

judge typically lacks important sentencing-reiatecl

information about a second sentence that has .not yet been imposed.

II Given the purposes and the mechanics of the

SRA's sentencing system, just described, the better

reading of the "multiple sentences" provision is a

reading that denies a sentencing judge the authority to "order that the federal sentence· be qonseculive to a·ri anticipated state sentence that ·has' not yet been imposed." Ante, at .1466. For one thing, nothing in

the statute explicitly grants the judge that authority. The text refers to othet· circumstances, those that

earlier or contemporaneous

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23 Fla. L. Weekly Fed. S 231

(Cite as: 132 S.Ct. 1463)

(multiple-count) convictions., while it does not refer

to later imposed sentences:'.

For another, exercise of any such . authority

would more likely hinder. than advance the basic

objectives of the SRA. As I have explained,. supra,

at 1474 - 1477, a sentencing judge typically needs detailed information when constructing a multiple­

count or multiple-conviction Guideline sentence.

The fa~l that the future sentence has not yet been imposed means that information will often be Jack­ing, and that in turn means that the exercise of such

authority would tisk confusion and errnr. A senten­cing judge who believes, for example, that the fu­

ture conviction will be based upon different relev­

ant conduct (and consequently orders a consecutive

sentence) could discover that the second ~onviction

~es ts upon the. same relevant conduct' (warranting a conc_uITent_.sentence). Mistakes of this kind increase

the i-isk of sentencing disparity and, insofar as the

first judge . guesses wrong, they can mean a less honest sentencing process as well.

· Further, I can find no significant tradition

.(pre~Guideline or post-Guideline) of federal judges imposing a "sentence that rui1s consecutively with ca sente~ce not y;;t imposed: The Court refers to four Comis of Appeals cases for the proposition that

"tr~ditionally" a· judge possessed this authorrty. Ante, at 1468·. The opinions in *1478 three of the

cases are each about a 'page long ahd do not discuss the matter here at issue:" (They assume, without "sig­nlfica11t discussion, the existence. of the relevant

sentencing authority.)" See Ander.~on v. United States, 405 F .2d 492, 493 (C.A.10 J 969) (per cw·i­

am)- (addressin'g the question whether a federal sen­

tence runs from the date of its imposition or from the date of enfry into federal 'custody); United

States v. Kanton, 362 F.2d 178, 179-180 (C.A.7

i966)' (per curiam) (same); United States ex rel.

Lesterv.Parkei·,A04F.2d40-,41 (C.A:31968) (per

curiam) (addressing frie question whether a ·sen­

tence was insufficiently certain for purposes of due process). The fourth case, Safley v. United States,

786 F.2d 546, 548 (C.A.2 1986), discusses the issue

directly and takes.the Court's position. But, like the

other three cases, it was decide_d before the

Guidelines took effect (i.e., when the reasons for

denying the: authority were less_ strong): And, one

judge on the panel disagreed in a separate opinion, and in my view has the better of the argument. See

id., at 548-550 (Newman, J., concurring in result);

see also United States v. Eastman, 758 F.2d l315, 1317 (C.A.9 1985) (holding that a judge lacks the

here-relevant sentencing power). In any event, these · instances are too few to consti_tute a

"tradition."

In fact the Senate Committee Report accompa­

nying the SRA provides strong evidence that there

was no such tradition. S.Rep. No. 98-225 (1983).

That Report thoroughly surveyed prior law. It says

that the SRA is a "comprehensive statement of the Federal Jaw of sentencing," that it "describes in de­

tail the kinds of sentences that may be imposed,"

and that § 3584 "provides the rules for determining

the length of a term of imprisonment for a person convicted of more than one ·offense."· Id., at 50,

125...:.126. It further states that "[e]xisting law per­

mits the imposition of either concurrent or 'consec­ufrl1e sentences," which prndice it· then describes

as limited to two scenarios: "[t]erms of l.mprison­ment imposed at the same time," and those "imposed o~- a person already serving a prison

term." Id, at 126. fr says the same when des~ribing how § 3584 is supposed to work: In neither place

does it refer to a practice of, or any authority for, imposing a prison term that .runs consecutively with a future term not yet imposed.

In addition, a· grant of 'such. ~ui:h:ority nsks at

least occasional incoherence. For example, the stat­

ute, after setting forth the court's authority' to iii:1-

pose a sentence of imprisonment tha't runs either

concurrently or consecutively with ~ther terms im­

posed in the same or in earlier proceedings, creates an exception that sa.ys: "except_ that the teriris may

not run consecutively for an attempt and for another offense thal was· the so1e objective of the attempt."

18 U.S:C. § 3584(a). Now suppose the Courfwere

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(Cite as: 132 S.Ct. l463)

right, and a sentencing judge had the autbority' to

run a present term consecutively 'with a not­

y~t-imposed future term. Would it not be important

to apply this. sa.me "attempt''. exception in such in­

stances as we)!? lnd~ed, tb~ ex.ception is phrased i~ categoric~) terms, and tbe legislative history _in no

way indicates that the exception applies only occa­sionally. See · S.Rep. No .. 98-225,. at 126 · ("[

C]onsecutive terms of imprisonment may not, con­

trary to current law, be imposed for [attempt) and

for an offense that was the sole objective of the at­

tempt" (emphasis added)). Yet it is difficult, if not

impossible, to read the statute's language as broad­

ening the exception beyond the statutorily listed

·scenarios.

.,, , Or, consider, for example, an offender tried for

arguably' related' ~rimes in hvo· different federa.l

courls at t\vo dtf'.fen:nt times. The Court's reading

would not only *1479 allow the second judge to or­

der concurrent service with the first sentence if

warranted, as the statute explicitly permits, but it

would also allow the ·first judge to make an analog­

i:rn's but anticipatory order based upon the sentence

he expected the second judge would impose. But

wbere complex forms of criminal behavior are at is­

sue; these different judges may' reach different. con­

dusions.: The resultniay well be conflict and confu­

sion.·

'Finally, as I said above,·wpra, at 1476"" 1477,

a more pracLical solution · to potential problems

presented by a future sentencing proceeding ·lies

closer at hand,. The BOP has the statutory authority

to effec:t concurrent service of federal and state sen­

tences and is well situated to take into account both

the intent of the- first sentencing judge and the spe­

cific facts developed in the second sentencing. The

relevant statute provides ·that "[t]he Bureau ~my desi"gnate any available penai' or correctional facil~ ity .... , whether maintained by the Federal Govern­

ment or othern,ise .... " 18 u.s.C. § 362l(b). And in

reliance on tbis autbority, the Bureau has conduded

that it has the po"'er to "designat[e] ... a state msti­

tution for concurrent service of a federal sentence."

Program Statement 5160.05, at .1.. The Program

s·t(ltement -further p~ovides .that exercise of this

po;~r will b~ guided by, i~ pfUi:, "the intent of the

federal sentencing. court;, i~ addit.ion to "any other

perti~entiilforma;tion regarding the inmat~." Id., at 4.

The Court's· only criticism of this system is that

it is _less "natural" to read the statute ."as giving the

Bureau o'f Prisons what amounts to sentencing au­

thority." Ante, at 1465. But what is unnatural about

giving the Bureau that authority? The sentencing

process has long involved cooperation among the

. three branches of Government. Mistretta, 488 U.S.,

at 364, 109 S.Ct. 647. And until the Guidelines the

BOP itself decided, within broad limits, precisely

how much prison time every typical offender would ·serv~. Even today, it -~till d.ecides that: q~estion within ce.1tain limits. 18 U.S.C. § 3624 (2006 ed.

and Supp. IV) (delegating to the BOP authority to

calculate "good time credit," which in effect re­

duces a prisoner's tenn of incarceration); see also

Barber; 560' U.S., at-· -, 130 S.Ct., ai 2502. Al­

though Congress limited the Bureau's authority in

this 'respect, there is nothing uimatural ·about 'leav­

ing the Bureau with a small portion of that author­

ity'-particularly where doing so helps significantly

to alleviate a small, but important, technical prob­

lem in the application of th~ ~RA's sentencing sys­

tem.

Because the CoUJt does ·not· ask ·why the

'.'multiple sentencing" provision leaves out.th.e au­

thority ·at issue--conceming· the not-yet~imposed

sentence-it reaches what I believe is the wrong

result.· Consequently, with respect, I dissent.

u.s.,2012.

Setser v. U.S.

132 S.Ct. 1463, 182 L.Ed.2d 455, 80 USLW 4274,

12 CaL Dally Op. Serv. 3513, 2012 Dally Journal

DAR. 40.03, 23 Fla. L. Weekly Fed. S 231

© 2012 Thomson Reuters. No Claim tb Orig. US Gov. Works.

P38

. ,. . Page 17 132 S.Ct. 1_463, 18Z L.Ed.~d 455, 80 US):.,W 4274, 12 Cal.Daily Op. Serv. 3513, 2012.DailyJournal D.A.R. 4003,

23. Fla. L Weekly Fed. S 231

(Cite as.: 132 S.Ct. 1463) .

F,.ND OF DOCUMENT

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

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FEDERAL BUREAU OF PRISONS: FROM SENTENCING TO RELEASE

POWERPOINT PRESENTATION SOUTIIERNDISTRICT OF NEW YORK

DECE:MBER 7, 2012

· · This Powerpoint Presentation will provide an overview of the structure and operation of the Federal Bureau of Prisons (BOP), including its Central and Regional Offices,. and a comprehensive review of the BOP's Designation and Sentence Computation Center. It will provide an overview of the BOP's various institutional security levels (i.e., minimum, camp, low, medium, high, and administrative), and a detailed explanation of the BOP'sAdministrative Remedy Program. The presentation will take and in-depth look into the institution designation process the BOP undertakes after a criminal judgment and commitment order is entered against a criminal defendant by the district court. The presentation \Vill discuss the impact of

. the inmate's (1) current offense(s), (2) detainer(s), (3) medical needs, (4) prior · criminal history, (5) alcohol and drug treatment needs, ( 6) educational needs, and ( 6) · geographic location, on the BOP's designation of that inmate to a particular BOP

institution.

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FEDERAL BUREAU OF PRISONS: From Sentencing to Release

(MATERIALS) . John L. Badalamenti

Dec. 7, Z012-SouthemDistrlctofNewYork

Unfted States Penitentiary -Atlanta, Georgia

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10

SPEAKER BIOGRAPHIES

John L. Badalamenti - is an Assistant Federal Defender in the Middle District of Florida. He has served as a law clerk to both U.S. Circuit Judges Frank M. Hull and Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit. He attended the University of Florida, earning a Bachelor of Arts with highest honors, Juris Doctor with honors, and a Master of Arts with a specialization in Criminology and Correctional Law. After prosecuting misdemeanor cases for the State Attorney's Office for the Eighth Judicial Circuit of Florida, he entered the United States Attorney General's Honors Program, serving as an Attorney-Advisor with the Federal Bureau of Prisons in Atlanta. Subsequent to his one-year assignment with the Department of Justice, he joined Carlton Fields, P.A., practicing in the areas of securities, insurance, and regulatory litigation. He was born in Brooklyn, New York, and currently resides in Tampa, Florida.

Steven M. Statsinger, Esq., is Senior Trial Counsel and Training Director at Federal Defenders of New York, Inc. He received a B.S. in psychology from Brown in 1984, and a J.D. from Columbia Law School in 1987, and has been a pubiic defender in both the state and federal courts ever since. Until 1993, he was a staff attorney at The Legal Aid Society's Criminal Appeals Bureau, representing indigent criminal defendants on appeal in all of New York's appellate courts - the Appellate Term, Appellate Division, and the New York Court of Appeals, in which he has briefed and argued eight cases. Since 1995, he has been primarily a trial la\vyer, working as an Assistant Federal Public Defender at Federal Defenders of New York, Inc., in the Southern District of New York. He is the author or co-author of several treatises in the field of federal criminal practice, most notably Aspen Publishers' Practice Under the Federal Sentencing Guidelines, and is a frequent speaker on criminal justice issues. His well regarded habeas corpus treatise is available on amazon.com. Steve is also an adjunct faculty member at Columbia Law School and New York University's School of Continuing and Professional Studies.

Michael D. Tafelski, Esq. - is currently the Regional Counsel, for the Northeast Region of the Federal Bureau of Prisons. Mr. Tafelski was promoted to his cbrrent position effective January 2012, after serving as Deputy Regional Counsel since 1997. Hired through the Department of Justice Honors Program, he has been with the Federal Bureau of Prisons since 1991, including five years as the Staff Attorney for the United States Penitentiary, in Lewisburg, PA. Mr. Tafelski received his J.D. from Villanova University School of Law and his undergraduate degree from the University of Notre Dame. Wbile with the BOP, Mr. Tafelski has received numerous co~endations and honors, including the Bureau's Assistant Director's Award. He has been a presenter at numerous Bureau training courses on a wide range of topics. He has also represented the BOP as a panelist or presenter at The National Advocacy Center, U.S. District Court, U.S. Attorneys Offices, and Federal Public Defenders and criminal defense lawyer gatherings.

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