United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court upon receipt of correspondence
from the Bureau of Prisons' (“BOP”), dated
May 31, 2018, requesting the court's position on whether
defendant's federal term of imprisonment should run
concurrent or consecutive to her subsequently-imposed state
sentences. Said correspondence is attached to this order as
November 4, 2015, the court sentenced defendant to a term of
52 months imprisonment, upon conviction for making a false,
fictitious, or fraudulent claim for a tax refund.
(See Judgment (DE 35) at 1-2). The court's
judgment does not indicate whether the sentence should run
concurrent or consecutive to any state sentences. The
judgment also allowed defendant to “self report”
to BOP for service of the term of imprisonment. (Id.
to the instant correspondence, defendant was arrested on
“new” state charges on February 8, 2016, before
she self-reported to BOP for service of her federal sentence.
(BOP Correspondence (App. A) at 1). The state charges
included obtaining property by false pretenses (two counts),
forgery of instrument, and identity theft. (Id.) On
March 15, 2016, the state court sentenced defendant to 11 to
23 months imprisonment on the first count of obtaining
property by false pretenses, and ordered that the sentence
run concurrent to defendant's instant federal sentence.
(Id.) On March 16, 2016, the state court sentenced
defendant to a 15-month term of imprisonment on the remaining
charges. (Id.) The state court's March 16, 2016,
judgment did not indicate whether the state court intended
the sentence to run concurrent or consecutive to
defendant's federal sentence. (Id.) Because
defendant was sentenced on the state charges and remanded to
state custody before she self-reported for her federal
sentence, federal authorities lodged a detainer against her.
completed her state sentences on February 8, 2017, and was
transferred to federal custody to serve her federal sentence.
(Id.) According to BOP's calculations, if
defendant's instant federal sentence runs concurrent to
the state sentences summarized above, her anticipated release
date is November 17, 2019. (Id. at 2). If
defendant's federal sentence runs consecutive to the
state sentences, her anticipated release date is November 1,
2020. (Id.) Defendant has formerly requested that
BOP credit her time served in state prison toward her federal
has authority to designate a federal prisoner's placement
of imprisonment, which may be a state prison. 18 U.S.C.
§ 3621(b). Section 3621(b) provides that BOP should
consider the following factors when designating the place of
imprisonment: (1) “the resources of the facility
contemplated”; 2) “the nature and circumstances
of the offense”; 3) “the history and
characteristics of the prisoner”; 4) “any
statement by the court that imposed the sentence - (A)
concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or (B)
recommending a type of penal or correctional facility as
appropriate”; and 5) “any pertinent policy
statement issued by the Sentencing Commission . . . .”
Id. A federal defendant serving a state sentence can
request that BOP retroactively designate the state prison as
her place of imprisonment pursuant to § 3621(b), which
(if granted) effectively credits the time spent in state
custody toward the federal sentence. See Mangum v.
Hallembaek, 824 F.3d 98, 100-01 (4th Cir. 2016).
Pursuant to § 3621(b)(4) and internal BOP policy, BOP
sent the instant correspondence to the court, requesting that
the court provide its “position” on whether the
state and federal sentences should run concurrently or
initial matter, the court has no authority to modify
defendant's judgment or otherwise “order, ”
post-judgment, that the sentences run concurrently or
consecutively. See Dillon v. United States, 560 U.S.
817, 824 (2010) (“‘A judgment of conviction that
includes a sentence of imprisonment constitutes a final
judgment' and may not be modified by a district court
except in limited circumstances.'”) (quoting 18
U.S.C. § 3582(b)).
court also declines to issue a recommendation to BOP
concerning whether the subject sentences should run
concurrently or consecutively. On the record before the
court, there is no indication that the underlying offense
conduct in the federal offense bears any relation to the
underlying offense conduct at issue in the state convictions.
See U.S.S.G. § 5G1.3(c) (“If . . . a
state term of imprisonment is anticipated to result from
another offense that is relevant conduct to the instant
offense of conviction . . . the sentence for the instant
offense shall be imposed to run concurrently to the
anticipated term of imprisonment.”). Accordingly, the
court takes no position on whether the state court sentences
should run concurrently or consecutively to defendant's
federal sentence or whether BOP should retroactively
designate defendant's state prison as her place of
confinement for her federal sentence. The court notes,
however, that the state court recommended that at least one
of the state sentences should run concurrent to the federal
sentence, and “one might reasonably expect the BOP to
exercise its discretion to weigh heavily what the state judge
did say rather than what the federal judge did
not [when making the § 3621(b)
determination].” Mangum, 824 F.3d at 103.
court further notes that BOP's suggestion that
retroactive designation can be made only if the court
“orders, recommends, or otherwise indicates the federal
term is to be concurrent with the state term” (BOP
Correspondence (App. A) at 2), is not correct. See
Mangum, 824 F.3d at 102-03. To be sure, authority to
order a sentence to run consecutive or concurrent to another
sentence rests solely with the district court. Setser v.
United States, 566 U.S. 231, 239 (2012). But BOP retains
authority under § 3621(b) to retroactively designate a
state prison as the place of confinement and thereby
“credit” time served in state prison towards a
federal sentence. See Setser, 566 U.S. at 241
(“If a prisoner like Setser starts in state custody,
serves his state sentence, and then moves to federal custody,
it will always be the Federal Government - whether the
district court or the [BOP] - that decides whether he will
receive credit for the time served in state custody.”).
And that is particularly true where, as here, statutory law
does not require that the sentences be served consecutively
and the district court's judgment is silent on the issue.
See Mangum, 824 F.3d at 100-01 (recognizing, post
Setser, BOP's authority to credit time served on
state sentence as part of federal sentence where district
court judgment is silent on the issue of whether the
sentences should run concurrently or consecutively).
filing, the clerk of court is DIRECTED to transmit a copy of
this order to John O'Brien and Marcus Boudreaux at the
BOP's Designation and Sentence Computation Center.