                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2005

Bailey v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4881




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 03-4881
                                   ________________

                                   NOELLE BAILEY,

                                                 Appellant

                                            v.

                                 JOHN NASH, Warden
                                  ________________

                    On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ. No. 03-cv-00226)
                    District Judge: Honorable Christopher C. Conner
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 10, 2005

              Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                  (Filed: May 18, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

      Noelle Bailey appeals an order of the United States District Court for the Middle

District of Pennsylvania denying his 28 U.S.C. § 2241 petition for a writ of habeas

corpus. We will affirm.
                                             I.

       On August 23, 1997, Noelle Bailey was taken into state custody after being

arrested for possessing a firearm and for violating his New Jersey state parole. The state

dismissed the firearms charge in favor of federal prosecution. Nevertheless, Bailey

remained in state custody and on May 20, 1998, the New Jersey State Parole Board

revoked his parole and gave him credit towards his parole violator term for the

approximately nine months he had spent in custody since the date of his arrest.

Meanwhile, Bailey was transferred on various occasions to temporary federal custody

pursuant to writs of habeas corpus ad prosequendum: on May 5, 1998, he pled guilty to

possession of a firearm by a convicted felon and on August 21, 1998, he was sentenced to

a term of imprisonment of “90 months, with credit for time served.” Bailey completed

his state parole violator term on October 2, 1998, and was immediately taken into federal

custody. The Bureau of Prisons (“BOP”) computed Bailey’s firearms sentence to run

consecutively to the New Jersey parole violator term and did not credit his federal

sentence for any time he spent in state custody.

       After properly exhausting his administrative remedies, Bailey filed the present

petition for writ of habeas corpus in the United States District Court for the Middle

District of Pennsylvania. He argued that his federal sentence should be credited for the

approximately twelve months he served from the date he was arrested and taken into

custody (August 23, 1997) through the date he was sentenced on the federal firearms

conviction (August 21, 1998). The District Court denied relief, holding that the BOP

                                             2
properly determined that Bailey’s federal sentence should be served consecutively to his

parole violator term and that federal credit for the time he was in state custody was

appropriately denied under 18 U.S.C. § 3585(b). Bailey appealed.1

                                             II.

       Bailey argues that the sentencing court’s reference in its judgment to “credit for

time served” reflected its intent to adjust his federal sentence under U.S.S.G. § 5G1.3(c)

for the time he was incarcerated before imposition of his federal sentence. The

government contends, however, that the sentencing court did not grant a § 5G1.3(c)

adjustment and that the period Bailey spent in state custody could not be credited against

his federal firearms term under 18 U.S.C. § 3585(b).

       In Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002), we explained that the

sentencing court’s authority under § 5G1.3(c) to “adjust” a sentence is distinct from the

BOP’s authority under 18 U.S.C. § 3585(b) to “credit” a sentence, even though the

benefit to the defendant may be the same. See id. at 131-33. In particular, the

“adjustment” that the sentencing court exclusively can award under § 5G1.3(c) is a

sentence reduction designed to account for time spent in custody on a prior conviction.

On the other hand, the credit that BOP exclusively awards under § 3585(b) accounts for

time served in detention prior to the date the federal sentence commences. Id.; see also

United States v. Dorsey, 166 F.3d 558, 564-65 (3d Cir. 1999) (Stapleton, J., concurring)

  1
     We have jurisdiction pursuant to 28 U.S.C. § 1291 and 2253(a). We exercise plenary
review over the District Court’s legal conclusions and apply a clearly erroneous standard
to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).

                                             3
(noting that much of the confusion could be explained by the different uses of the term

“credit”).

       To determine what type of credit the sentencing court intended to apply in Bailey’s

case, “the appropriate starting point is to ascertain the meaning that we should ascribe to

the sentencing court’s directives.” Rios v. Wiley, 201 F.3d 257, 264 (3d Cir. 2000).

When the oral pronouncement of sentence and written sentence are in conflict, the oral

sentence prevails. See United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991).

However, when there is no conflict, “but rather only ambiguity in either or both [sentence

pronouncements], we have recognized that the controlling oral sentence ‘often [consists

of] spontaneous remarks’ that are ‘addressed primarily to the case at hand and are

unlikely to be a perfect or complete statement of the surrounding law.’” Ruggiano, 307

F.3d at 133 (quoting Rios, 201 F.3d at 268 (citation omitted)). Importantly, “[i]n

interpreting the oral statement, we have recognized that the context in which this

statement is made is essential.” Id. at 134.

       At sentencing, Bailey’s attorney stated that “the issue of credit, time credit to be

given is primarily an issue that the BOP would use. However, I just want to place on the

record [for any review the BOP might undertake] and ask you at the conclusion of the

proceedings simply to include in the order that credit be given for all appropriate time.” 2



  2
   Bailey’s attorney suggested that this “appropriate time” be the period from his arrest
(August 23, 1997) to either the date his parole was revoked (May 20, 1998) or “until
now,” the date of his federal sentencing (August 21, 1998). See Sentencing Transcript, 4-
5.

                                               4
Sentencing Transcript (“Tr.”), 4. Next, the Probation Officer noted that “any time a

defendant has served in custody that has not been credited to another sentence will get

credited towards his federal sentence and the [BOP] makes that determination.” Id. at 5.

The prosecutor indicated that the “defendant should receive jail time credit [from the

BOP] for time served since May 20, 1998 only. This reason that is so is because the

period of time he served in custody from August 23, 1997 through May 20, 1998 was

credited to his parole violation sentence, was credited to the sentence that he has served

based upon his separate violation of the terms and conditions of his parole.” Id. at 9-10.

At the conclusion of the proceedings, the sentencing court stated Bailey “is hereby

committed to the custody of the [BOP] to be imprisoned for a term of 90 months with

credible time served.” Id. at 33-34. Bailey’s attorney then asked “to be included in the

order that [the BOP] apply all appropriate credit for time served.” Id. at 36. The

sentencing court responded, “I don’t need to add anything additional to the judgment for

that to be understood.” Id. As noted above, the written judgment states that Bailey is “to

be imprisoned for a term of 90 months, with credit for time served.”

       In light of these facts, we conclude that the sentencing court’s reference to “credit

for time served” was a non-binding recommendation for the BOP to award credit – if

appropriate – under § 3585(b), rather than a mandatory direction that Bailey’s sentence be

adjusted pursuant to § 5G1.3(c). We recognize that the sentencing court can apply

§ 5G1.3(c) where, as here, no explicit reference is made to that section. See Rios, 201

F.3d at 268. Importantly, however, in cases where we have found that the sentencing

                                             5
court intended to impose an adjusted sentence, the sentencing court had clearly indicated

its intent to have the federal and state sentences run concurrently in order to achieve a

reasonable penalty. See Rios, 201 F.3d at 267-69; Ruggiano, 307 F.3d at 124, 132-33.

Here, by contrast, no information before the sentencing court suggests that it was

applying § 5G1.3(c). No mention was made of concurrent sentences or the

reasonableness of running Bailey’s sentences concurrently. Most importantly, however,

the sentencing court and both parties proceeded as though any credit due Bailey would be

calculated by the BOP, which of course does not have authority to impose an adjusted

sentence pursuant to § 5G1.3(c).

       Because the “sentencing court [did] not appl[y] section 5G1.3(c) . . . in

pronouncing [Bailey’s] sentence[,] . . . the issue presented on appeal [is] in fact a

crediting matter governed by section 3585(b).” Rios, 201 F.3d at 276. We conclude that

the BOP properly determined that Bailey was not entitled to federal-sentence credit for

the period he was in state custody. A federal prisoner is statutorily entitled to credit for

time spent in official detention prior to the date his federal sentence commences if the

detention resulted from the same offense for which the sentence was imposed and if that

time has not been credited against another sentence. See § 3585(b). Bailey’s federal

sentence commenced on October 2, 1998, when he was released by the state and taken

into federal custody. See § 3585(a); Wilson, 503 U.S. at 333-34. Because the entire

period between Bailey’s arrest and the date his federal sentence commenced was spent in

service of his state parole violator term, the BOP could not credit Bailey’s federal

                                              6
sentence with any of that time.3 See Dorsey, 166 F.3d at 560 (recognizing that period

between state sentencing and federal sentencing could not be credited to federal sentence

“because it represented time that the appellant was already serving on his state

sentence.”); see also Rios, 201 F.3d at 272 (holding that 22 months spent serving state

sentence (in federal detention) prior to imposition of federal sentence could not be

credited under § 3585(b)). Moreover, the sentencing court did not specify that the federal

and state sentences were to run concurrently. See § 3584(a) (providing that where a term

of imprisonment is imposed on a defendant who is already subject to an undischarged

term of imprisonment, the terms run consecutively unless otherwise ordered); see also

Weekes v. Fleming, 301 F.3d 1175, 1179 (10th Cir. 2002) (“[t]here is a presumption that

a federal sentence imposed after a prior state sentence will be served consecutively to the

state sentence.”). Accordingly, Bailey has shown no error in the District Court’s denial of

his habeas petition.4

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.


  3
    The prosecutor’s suggestion at sentencing that Bailey would be entitled to credit for
the period he served in state custody since the date his state parole was revoked, see Tr.,
9-10, was mistaken. Cf. Dorsey, 166 F.3d at 563 (rejecting theory under which “credit
for time served before imposition of the federal sentence will depend on when the state
sentence was imposed” because “[a]ctual time of imprisonment should not turn on the
happenstance of the scheduling of sentencing dates”).
  4
    To the extent Bailey seeks credit for the period he spent in federal custody pursuant to
writs of habeas corpus ad prosequendum, his claim is without merit. See Ruggiano, 307
F.3d at 125 n.1 (“time spent in federal custody pursuant to a writ ad prosequendum is
credited toward his state sentence, not his federal sentence.”).

                                             7
