                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2594
                         ___________________________

                                  Charles Lee Elwell

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              Scott P. Fisher, Warden,
                                   FCI Sandstone

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: February 12, 2013
                                Filed: June 6, 2013
                                  ____________

Before SMITH, MELLOY, and BENTON, Circuit Judges.

                                    ____________

MELLOY, Circuit Judge.

       Federal prisoner Charles Lee Elwell appeals the denial of his 28 U.S.C. § 2241
petition for habeas relief. In his petition, Elwell challenged a Bureau of Prisons
("BOP") denial of a request for a nunc pro tunc designation in relation to, and denial
of federal credit for, time he spent in physical custody prior to completion of a state
term of imprisonment. We affirm the denial of relief.

                                          I.

       In 2006, Elwell was arrested on Iowa charges for possessing marijuana with
intent to deliver and being a felon in possession of a firearm. These state charges
were eventually dismissed. Later in 2006, Elwell was arrested on state charges of
felony operating while intoxicated (third offense) and eluding officers. He posted
bond but was later arrested on state charges for marijuana possession. He again
posted bond, and the amount of his bond following the marijuana-possession arrest
was $91,700. Then, in March 2007, he was arrested by state officials for public
intoxication and bond violations. At that point, a state court substantially raised his
bond amount to $500,000. He did not post the increased bond, and he remained in
custody.

      A few days later, still in March 2007, the federal government filed an
indictment against Elwell alleging participation in a marijuana-distribution
conspiracy based upon Elwell's activities in 2006. The government obtained a writ
of habeas corpus ad prosequendum and obtained control over Elwell's physical
custody from Iowa. Elwell pleaded guilty to the federal charges during his initial
appearance in federal court. The state-court judge handling Elwell's Iowa cases
issued an order and memorandum continuing proceedings on the state charges until
resolution of federal proceedings. The state court instructed counsel to provide notice
upon the completion of Elwell's federal proceedings.

       In November 2007, the United States District Court for the Southern District
of Iowa sentenced Elwell to sixty-six months' imprisonment. The district court was
silent as to whether it wished the federal sentence to be concurrent with or
consecutive to any yet-to-be-imposed state sentence. Then, still in November 2007,

                                         -2-
the federal government returned control over Elwell's physical custody to the state.
Counsel, however, did not follow the state court's order to inform the state court that
Elwell's federal proceedings had concluded.

      In March 2008, the state court discovered that Elwell's federal proceedings had
concluded. The state court ordered a status conference and, in April 2008, sentenced
Elwell to two concurrent five-year sentences on the felony OWI and eluding charges.
The state court also indicated clearly that it desired the state sentences to be
concurrent with the already-imposed federal sentence.

       Between April 2008 and February 2009, Elwell was in the physical custody of
the state except for most of July 2008 when he was taken to a federal holding facility
and then to a federal penitentiary before being returned to the state's physical custody.
In February 2009, the state sentencing court discovered that Elwell was not serving
his state and federal sentences concurrently. On February 6, 2009, to remedy this
departure from the state court's declared intent, the state court resentenced Elwell to
time served as measured from his March 2007 arrest for public intoxication through
the date of his state resentencing. Following this state resentencing, Elwell was no
longer subject to pending state charges or serving a state sentence of incarceration.

       Elwell then sought credit from the BOP for time served. He also sought an 18
U.S.C. § 3621 nunc pro tunc designation of the various facilities where he had been
housed prior to February 6, 2009, as the locations for service of his federal sentence.
The BOP, applying the primary jurisdiction doctrine, determined that the state was
the first sovereign to obtain physical custody over Elwell and held primary
jurisdiction at all times until the February 6, 2009 state resentencing. As a result, the
BOP determined that Elwell did not commence serving his federal sentence until that




                                          -3-
date. Based upon 18 U.S.C. § 3584(a)1 and BOP regulations, the BOP concluded that
the district court's silence at federal sentencing regarding whether the state and
federal sentences should be concurrent or consecutive required consecutive sentences.
In reaching this conclusion, the BOP reached out to the federal sentencing judge for
clarification of intent but received no response. The BOP also determined that,
pursuant to 18 U.S.C. § 3585(b),2 Elwell's receipt of state credit for all time in
custody prior to February 6, 2009, precluded a grant of federal credit for that time.
Finally, the BOP denied Elwell's request for nunc pro tunc designation of the
facilities where he had been housed as the locations for serving his federal sentence.



      1
          In relevant part, 18 U.S.C. § 3584(a) provides:

      Multiple terms of imprisonment imposed at the same time run
      concurrently unless the court orders or the statute mandates that the
      terms are to run consecutively. Multiple terms of imprisonment imposed
      at different times run consecutively unless the court orders that the
      terms are to run concurrently.

(Emphasis added).
      2
          18 U.S.C. § 3585(b) provides:

      A defendant shall be given credit toward the service of a term of
      imprisonment for any time he has spent in official detention prior to the
      date the sentence commences--

      (1) as a result of the offense for which the sentence was imposed; or

      (2) as a result of any other charge for which the defendant was arrested
      after the commission of the offense for which the sentence was imposed;

      that has not been credited against another sentence.

(Emphasis added).

                                           -4-
The end result of these determinations was that Elwell received no credit against his
federal sentence for any time held in custody prior to February 6, 2009.

       Elwell exhausted his administrative remedies through the BOP. He also filed
for relief in the district court for the Southern District of Iowa where he had received
his federal sentence. At the time, he was housed in a federal facility in Minnesota.
As a result, the district court for the Southern District of Iowa denied relief stating
that only the district court in Elwell's district of incarceration had jurisdiction to
entertain a habeas petition. Finally, Elwell filed the present § 2241 petition in the
District of Minnesota.

       A magistrate judge3 entered a report recommending denial of the petition,
Elwell filed objections, and the district court4 overruled his objections, adopting in
full the report and recommendations. Elwell appeals.

                                          II.

      Elwell presents several specific and interrelated arguments on appeal. Before
addressing specific aspects of the arguments that appear to be substantially distinct
from one another, we address the broader doctrine of primary jurisdiction. Elwell
argues generally that the BOP and district court misconstrued or misapplied this
doctrine. This general argument flows throughout all of Elwell's more specific




      3
      The Honorable Leo I. Brisbois, United States Magistrate Judge for the District
of Minnesota.
      4
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                          -5-
arguments, and we reject his general argument that the BOP and district court
misapplied the doctrine.5

                          A. Primary Jurisdiction Doctrine

       Pursuant to the doctrine of primary jurisdiction, service of a federal sentence
generally commences when the United States takes primary jurisdiction and a
prisoner is presented to serve his federal sentence, not when the United States merely
takes physical custody of a prisoner who is subject to another sovereign's primary
jurisdiction. See United States v. Hayes, 535 F.3d 907, 909–10 (8th Cir. 2008); see
also 18 U.S.C. § 3585(a) ("A sentence to a term of imprisonment commences on the
date the defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official detention facility at which
the sentence is to be served."); Binford v. United States, 436 F.3d 1252, 1256 (10th
Cir. 2006) (sentence begins when received into custody for purpose of serving
sentence, not when received into custody at an earlier time on a writ for the purpose
of adjudicating federal claims).

       The first sovereign to take physical custody of a defendant retains "primary
jurisdiction" until releasing that jurisdiction. See United States v. Cole, 416 F.3d 894,
897 (8th Cir. 2005) ("As between the state and federal sovereigns, primary
jurisdiction over a person is generally determined by which one first obtains custody
of, or arrests, the person."). "Generally, a sovereign can only relinquish primary
jurisdiction in one of four ways: 1) release on bail, 2) dismissal of charges, 3) parole,
or 4) expiration of sentence." Id. Iowa was the first sovereign to take physical
custody of Elwell in March 2007 when Elwell was arrested for public intoxication

      5
       Elwell also presents a generalized argument under the heading "separation of
powers" discussing the roles of the BOP and the courts. We do not address this
generalized argument as a stand-alone issue, but we note that his several other
arguments touch upon separation-of-powers concerns, see infra at n.6.

                                          -6-
and bond violations. At that time, the state court increased his bond, Elwell did not
post his increased bond, and Elwell remained in custody under Iowa's primary
jurisdiction.

       When the United States obtained physical custody of Elwell based upon the
writ of habeas corpus ad prosequendum, the transfer of physical control over Elwell's
custody from Iowa to the United States did not terminate Iowa's primary jurisdiction.
See Hayes, 535 F.3d at 910 (federal sentence did not commence during or after the
period of writ of habeas corpus prosequendum, but rather after service of state
sentence). Rather, Elwell remained subject to Iowa's primary jurisdiction and was
merely and temporarily "on loan" to the United States. Id.

       In addition, we have recognized that a state court generally is not empowered
to release a state's primary jurisdiction. See United States v. Dowdle, 217 F.3d 610,
611 (8th Cir. 2000) (per curiam) ("Because the state's jurisdiction was relinquished
by a state judge, rather than the prosecutor or a representative of the state executive
branch, the relinquishment was ineffective and Dowdle's status as a state prisoner was
unchanged."). And, it is "well-settled that the state court's intent [regarding
concurrent or consecutive sentences] is not binding [on the federal courts or the
BOP]." Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007). The non-
binding nature of the state court's intentions are, understandably, frustrating to
criminal defendants because the "state court's action raises the defendant's
expectations but does not resolve the issue." Id. This frustration is, no doubt,
compounded when a prisoner is moved about between federal and state facilities for
the various tasks attendant to prisoner classification and processing, as appears to
have happened in this case.

        To the extent any of Elwell's arguments amount to a general attack upon the
primary jurisdiction doctrine, a general challenge to the application of that doctrine
in his case, or a challenge to the BOP's failure to honor the state court's intentions, we

                                           -7-
reject his arguments. Iowa obtained primary jurisdiction in March 2007 and did not
release that jurisdiction until the state resentencing in February 2009.

     Against this general backdrop, we interpret Elwell's remaining arguments as
encompassing three separate positions, which we address below.

            B. District Court Silence Regarding Concurrent Sentences

       Elwell argues that the BOP erred in interpreting the federal sentencing court's
silence as triggering a default status of consecutive sentences and also erred in
denying him federal credit for time served prior to February 6, 2009. There are no
factual disputes surrounding this argument, and we review de novo the legal
interpretation of the consequences of the federal sentencing court's silence. See, e.g.,
United States v. Alvarez-Manzo, 570 F.3d 1070, 1075 (8th Cir. 2009) (applying de
novo review to an issue that "involves a pure question of law").

       Pursuant to 18 U.S.C. § 3584(a), "Multiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently." Elwell's state and federal sentences were, in fact, imposed at different
times, and the federal sentencing court in this case did not "order[] that the terms are
to run concurrently." Id. Accordingly, based only upon the plain language of
§ 3584(a), it would appear that Elwell's federal sentence must run consecutive to his
state sentence.

       Elwell counters that § 3584(a) does not pronounce a binding rule applicable to
the present situation involving the imposition of a federal sentence in anticipation of
a yet-to-be-imposed state sentence. He bases his argument upon the absence of
express identification of this scenario in § 3584(a). He also relies upon cases that
have recognized uncertainty regarding district courts' authority to declare federal
sentences as concurrent with, or consecutive to, anticipated state sentences.

                                          -8-
       Prior to 2012, circuits were split as to whether district courts enjoyed such
authority when imposing a federal sentence in light of a yet-to-be-imposed state term
of imprisonment. See Fegans, 506 F.3d at 1103 (stating that § 3584(a) "did not
expressly address whether federal courts may decide to order a federal sentence to be
served concurrent to or consecutive with a state prison sentence that has not yet been
imposed"); United States v. Mayotte, 249 F.3d 797, 798–99 (8th Cir. 2001) (per
curiam) (describing and listing the circuit split).6 Our court, however, held in
Mayotte and reaffirmed in Fegans that federal sentencing courts do hold such
authority and could make such designations in circumstances involving yet-to-be-
imposed state sentences. See Fegans, 506 F.3d at 1104 (applying Mayotte and noting
that the district court's intent may not always be clear); Mayotte, 249 F.3d at 799
(holding that a district court may impose a sentence to be served consecutively to a


      6
         In general, the circuit split and uncertainty regarding district courts' authority
in this context existed because of separation-of-power concerns between the judiciary
and the Department of Justice (specifically the BOP) and also because of comity
concerns surrounding state courts' authority. See, e.g., Mayotte, 249 F.3d at 799.
Regarding the separation-of-powers concerns, it was not clear whether the BOP or
district courts held the authority to designate federal sentences to run consecutive
with or concurrent to anticipated state sentences. This uncertainty stemmed, in part,
from 18 U.S.C. § 3621, which authorizes the BOP to designate a facility (state,
federal, or otherwise) as the place for service of a federal sentence. The BOP may
make this designation prospectively, or retrospectively through a nunc pro tunc order.
Like most courts, we had recognized that the practical effect of the BOP's power to
designate a state facility as a federal prisoner's place of confinement was, essentially,
de facto authorization for the BOP to make a federal sentence run concurrently with
a state sentence. See Fegans, 506 F.3d at 1103 ("[The] BOP has the practical power
to 'make the federal sentence run concurrently by designating the state prison as a
place of federal confinement, so that the clock would start to tick on the federal
sentence.'" (quoting Romandine v. United States, 206 F.3d 731, 738 (7th Cir. 2000))).
In Mayotte, we held simply that, given the broad sentencing authority otherwise
vested in federal district court judges, the absence of an express prohibition meant
federal judges could designate federal sentences to be consecutive to anticipated state
court sentences. See, 249 F.3d at 799.

                                           -9-
yet-to-be-imposed state sentence). Accordingly, at the time of Elwell's sentencing,
district courts in our circuit possessed the authority to designate federal sentences as
consecutive or concurrent to anticipated state sentences.

        Then, in Setser v. United States, the U.S. Supreme Court resolved the circuit
split, agreeing with the position adopted in our circuit and holding that federal district
courts possess the authority to order federal sentences to run concurrent with or
consecutive to yet-to-be-imposed state sentences. 132 S. Ct. 1463, 1468 (2012). In
so holding, the Court recognized that the BOP possessed discretionary authority to
designate a state facility as a place for federal confinement pursuant to 18 U.S.C.
§ 3621, but rejected characterization of that BOP authority as de facto "sentencing
authority."7 Id. at 1470. Importantly for our resolution of Elwell's case, the Court
also rejected an argument that the BOP possessed discretion relating to the
application of § 3584(a).8 The Court, however, was not called upon to delineate the




      7
        The Court recognized that § 3621 "is a conferral of authority on the [BOP],"
but stated that § 3621 should not "be read to give the [BOP] exclusive authority."
Setser, 132 S. Ct. at 1470. The Court also concluded that, "[p]ut to the choice, . . . it
is much more natural to read § 3584(a) as . . . leaving room for the exercise of judicial
discretion in the situations not covered, than it is to read § 3621(b) as giving the
Bureau of Prisons what amounts to sentencing authority." Id.
      8
          The Court stated:

      We think it implausible that the effectiveness of those rules—of
      § 3584(a)'s prescription, for example, that “[m]ultiple terms of
      imprisonment imposed at different times run consecutively unless the
      court orders that the terms are to run concurrently”—depends upon the
      “discretion” of the Bureau.

Setser, 132 S. Ct. at 1469 n.3.


                                          -10-
precise contours of the relationship between the BOP's § 3621 discretion and district
courts' sentencing determinations, and it did not do so.

       Given this state of affairs, the BOP in the present case correctly interpreted the
district court's silence as requiring consecutive sentences pursuant to § 3584(a). We
interpret Setser as treating the extent and exercise of the BOP's discretion pursuant
to § 3621 as an issue separate and distinct from the application of § 3584. Because
the district court could have, but did not, order concurrent sentences and because
§ 3584 is not a source of authority or discretion for the BOP, the BOP correctly
applied the default rule of § 3584 for sentences imposed at different times and
concluded the federal sentence was to be consecutive to the state sentence.

       Further, to the extent Elwell separately challenges the BOP's denial of federal
credit for time that the state court already credited to Elwell at resentencing, we reject
the challenge as inconsistent with the express bar on double credit found in 18 U.S.C.
§ 3585(b), supra n.2. Through the Sentencing Reform Act of 1984, Congress
reorganized several U.S. Code sections governing sentencing and introduced the
express prohibition on double credit. See Castro v. Sniezek, 437 F. App'x 70, 72–73
(3d Cir. 2011) (per curiam) ("[section] 3568, which did not explicitly preclude double
credit, has been superceded by the Sentencing Reform Act of 1984 and recodified at
§ 3585(b), which clearly prohibits double credit"). As with § 3584(a), we believe
§ 3585(b) is not a source of discretion for the BOP. Elwell received credit from the
state court for the time he was held in custody between March 2007 and his state
resentencing, and as such, that time was not eligible for federal credit pursuant to
§ 3585(b).

                                  C. Futility Theory

       Elwell argues that his family was prepared to post the $500,000 bond in state
court in March 2007, but that such an act would not have resulted in his release and

                                          -11-
would have been futile in light of the federal custody. As such, he argues that we
should recognize a futility exception, treating him as though he had posted such bond
and treating Iowa's primary jurisdiction as having lapsed at that point in time.
Assuming for the sake of argument that Elwell's family would have posted the
$500,000 bond in the absence of the federal writ, we review de novo the legal
question of whether our circuit should recognize a futility exception to the primary
jurisdiction doctrine. See Alvarez-Manzo, 570 F.3d at 1075.

       In asserting this futility theory, Elwell relies upon a Fifth Circuit per curiam
opinion for the proposition that "if [a defendant] was denied release on bail because
the federal detainer was lodged against him, then that was time spent in custody in
connection with the (federal) offense . . . since the detainer was issued upon authority
of the appellant's federal conviction and sentence." Willis v. United States, 438 F.2d
923, 925 (5th Cir. 1971) (per curiam) (internal citation and quotation marks omitted).
In 1983, the Eighth Circuit recognized the theory of Willis and held that, when a
federal detainer was in place, a defendant could receive credit for time in custody
associated with the federal proceedings (seemingly regardless of primary jurisdiction)
unless the government met the burden of proving that the defendant would have
remained in state custody even in the absence of the federal detainer. See United
States v. Haney, 711 F.2d 113, 114–15 (8th Cir. 1983). Haney was an exception to
a general default rule that "a state prisoner who is also on detainer for federal
violations should not receive credit on his federal sentence when he was given credit
on the state sentence for the same period of time." McIntyre v. United States, 508
F.2d 403, 404 (8th Cir. 1975).

      The parties do not cite Haney, and it is unclear why Elwell chose to rely upon
Willis. Regardless, Haney was based on the prior and now-repealed Code section—
§ 3568—that permitted the "double crediting" of pre-trial detention time for state and




                                         -12-
federal purposes.9 As just discussed, Congress repealed § 3568 and incorporated it
into § 3585(b) with the addition of an express prohibition on double crediting. Haney,
therefore, has been superceded by statute, and Elwell's arguments fare no better under
Haney than under Willis.10

       Had Elwell actually posted bond, Iowa's primary jurisdiction would have
lapsed and the federal government would have obtained not just physical custody, but
primary jurisdiction as well. As it stands, however, Elwell's arguments under Willis
(and thus under Haney) cannot be reconciled with the statutory prohibition on double
crediting. To the extent Elwell's arguments in this regard stem from his general




      9
          Haney's reliance upon the predecessor Code section was clear:

      A federal prisoner's sentence does not commence until "such person is
      received at the penitentiary, reformatory, or jail for service of such
      sentence." 18 U.S.C. § 3568 (1976). However, a prisoner shall receive
      credit toward service of his federal sentence "for any days spent in
      custody in connection with the offense or acts for which sentence was
      imposed." Id.

Haney, 711 F.2d at 114.
      10
         Although the Eighth Circuit previously has not expressly declared Haney to
have been overruled by statute, other circuits and Eighth Circuit district courts have
so held. See, e.g., Castro, 437 F. App'x at 72–73 (3d Cir. 2011) (rejecting Haney and
stating, "§ 3568, which did not explicitly preclude double credit, has been superceded
by the Sentencing Reform Act of 1984 and recodified at § 3585(b), which clearly
prohibits double credit."); Potwin v. Sanders, No. 2:05 CV00050, 2006 WL 932304,
at *4 (E.D. Ark. Apr. 10, 2006) ("The holding in Haney is based on the language of
18 U.S.C. § 3568, a statute which does not apply to Petitioner and did not contain 18
U.S.C. § 3585(b)'s explicit prohibition against double credit. In conclusion, 18 U.S.C.
§ 3585, not Haney, governs this case.").


                                         -13-
attacks upon the primary jurisdiction doctrine, we are without authority to disregard
our circuit's well-established adherence to that doctrine.

                       D. Denial of Nunc Pro Tunc Designation

       Finally, Elwell argues that the BOP abused its discretion in denying his request
for designation of the various facilities where he was housed prior to February 6,
2009, as the locations for serving his federal sentence. We "review this BOP decision
for abuse of the agency's substantial discretion under 18 U.S.C. § 3621." Fegans, 506
F.3d at 1105.

      The BOP is authorized to designate a facility (federal or state) as the site for
a defendant convicted of a federal offense to serve his federal sentence. 18 U.S.C.
§ 3621(b). The BOP may do this in advance of prisoner placement or through a nunc
pro tunc order designating the state facility after the fact. See, e.g., Dunn v. Sanders,
247 F. App'x 853, 854 (8th Cir. 2007). In exercising this authority, the BOP is to
consider several statutory factors listed in § 3621(b) as well as factors set forth in
BOP Program Statement 5160.05. Section 3621 instructs the BOP to look at
defendant-specific factors and facility-specific factors,11 and the BOP program


      11
           The BOP is to consider:

      (1) the resources of the facility contemplated;
      (2) the nature and circumstances of the offense;
      (3) the history and characteristics of the prisoner;
      (4) any statement by the court that imposed the sentence--
             (A) concerning the purposes for which the sentence to
             imprisonment was determined to be warranted; or
             (B) recommending a type of penal or correctional facility as
             appropriate; and
      (5) any pertinent policy statement issued by the Sentencing Commission
      pursuant to section 994(a)(2) of title 28.

                                          -14-
statement expressly requires the BOP to consider the sentencing court's intent. The
requirement that the BOP consider the sentencing court's intent is consistent with the
Supreme Court's statement in Setser that the BOP enjoys discretion but does not enjoy
"sentencing authority." 132 S. Ct. at 1470.

       In asserting that the BOP abused its discretion, Elwell argues that the BOP
erred in determining the commencement date for service of his sentence and in
denying credit for time served. We reject these arguments as repeats of his challenge
to the primary jurisdiction doctrine and the application of § 3584(a) and § 3585(b).

       Elwell next argues that the BOP misjudged the extent and seriousness of his
criminal history. The BOP, however, enjoys broad discretion in assessing the nature
and circumstances of the offense and of Elwell's personal history and characteristics.
Fegans, 506 F.3d at 1105. Elwell correctly notes that his criminal history was
composed of marijuana, alcohol, and operating-while-intoxicated offenses, and it is
clear to us that the BOP was not required to view this history as particularly egregious
when viewed in the context of the greater population of federal offenders. Still, we
are not free to substitute our judgment for that of the BOP, and we do not find the
BOP's judgment to involve any clear error that might amount to an abuse of
discretion. Id.

       Finally, Elwell argues that the BOP improperly interpreted the district court's
silence as evidencing an intent that his sentences be served consecutively. As already
discussed, under the nondiscretionary terms of § 3584(a), the absence of a district
court designation in this context leads to the conclusion that the federal sentence is
to be served consecutive to the anticipated state sentence. Section 3621, however, is
discretionary, and the Supreme Court in Setser did not purport to define the precise



18 U.S.C. § 3621(b).

                                         -15-
relationship between § 3584 and § 3621. Thus, it is not necessarily the case that the
BOP, when applying § 3621, must interpret silence as evidencing a district court's
intent to impose consecutive sentences.

       The question before us, however, is not whether the BOP was required to
interpret the district court's silence as implicitly expressing an intent for consecutive
sentences; the question is whether it was permissible for the BOP to adopt such an
interpretation. Clearly, the interpretation was permissible. Before Setser, we had
recognized that the BOP's discretion included the authority to interpret a district
court's intent. See Fegans, 506 F.3d at 1105 (emphasizing "the limited scope of our
review" and deferring to the BOP's interpretation of the district court's intent); Dunn,
247 F. App'x at 854 (recognizing such authority, but finding an abuse of discretion
based on the BOP's misinterpretation of the record). And we find nothing in Setser
suggesting that the BOP's traditional role of applying the factors of § 3621 is
somehow usurped. Elwell points to nothing in the record suggesting that the district
court intended concurrent sentences. As a result, we find no abuse of discretion.
Fegans, 506 F.3d at 1105 ("[T]he BOP found no evidence that the federal sentencing
judge intended the sentences to be concurrent. This agency finding is entitled to
substantial deference[.]").

      Because the BOP properly applied the primary jurisdiction doctrine and did not
abuse its discretion in denying Elwell's request for nunc pro tunc designation, we
affirm the judgment of the district court.
                        ______________________________




                                          -16-
