                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-6531



EDWARD L. TROWELL,

                                            Petitioner - Appellant,

           versus


ART BEELER, Warden, Federal Medical Center,
Butner, North Carolina; KATHLEEN HAWK SAWYER,
Director, Federal Bureau of Prisons,

                                           Respondents - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-03-93-5-BO)


Argued:   December 3, 2004                   Decided:   May 19, 2005


Before WILLIAMS and MICHAEL, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Alexander de Gramont, CROWELL & MORING, Washington, D.C.,
for Appellant.    David Thomas Huband, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellees. ON BRIEF: F. Ryan Keith, Paul D.
Flynn, CROWELL & MORING, Washington, D.C., for Appellant. Frank D.
Whitney, United States Attorney, R. A. Renfer, Jr., Assistant
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

           Petitioner Edward L. Trowell is a federal prisoner in

custody at the Federal Medical Center in Butner, North Carolina.

He appeals the district court’s denial of his petition for a writ

of habeas corpus filed pursuant to 28 U.S.C. § 2241.                       In his

petition   Trowell   seeks   review       of   a   Bureau   of   Prisons    (BOP)

rejection of his request to designate, nunc pro tunc, the state

facility where he served a state sentence as the place for service

of his federal sentence.      Trowell argues that BOP abdicated its

statutory responsibilities by effectively ceding the discretion to

grant or deny his request to the federal sentencing court. Because

BOP failed to analyze independently the five statutory factors

governing review of a prisoner’s nunc pro tunc designation request,

the agency necessarily abused its discretion, according to Trowell.

We agree with him that 18 U.S.C. § 3621(b) requires BOP to conduct

an independent evaluation of each applicable statutory factor.                 We

therefore reverse the district court’s order.                    On remand BOP

(through the respondents) will be directed to reconsider Trowell’s

request for nunc pro tunc designation.



                                      I.

           Trowell was arrested in 1996 by Maryland authorities and

was subsequently transferred to the U.S. District Court in South

Carolina under a writ of habeas corpus ad prosequendum to face


                                      3
unrelated   federal    charges.      He    pled   guilty   to   one   count    of

violating 18 U.S.C. § 924(c) and received the five-year minimum

sentence.     The   judgment   did   not    specify    whether   the   federal

sentence    was   to   be   concurrent     with   or    consecutive    to     any

subsequently imposed state court sentence.                 Trowell was then

returned to Maryland, where he pled guilty to the state charges and

was sentenced to a five-year state term.           The state court ordered

that the state sentence was to be concurrent with the five-year

federal sentence.      (Trowell asserts that the concurrency order was

prompted by his cooperation with state authorities in related

criminal investigations and prosecutions.)             Trowell was sent to a

state facility to begin his state sentence.

            In 1998 Trowell unsuccessfully sought to effectuate the

state court’s concurrency order by filing various petitions for

collateral relief before the U.S. district court that had sentenced

him.   The district court issued an order denying the petitions,

concluding that the concurrency relief Trowell sought “would not be

appropriate . . . in view of [his] criminal history.”            J.A. 24.      We

subsequently affirmed this order in an unpublished per curiam

decision.    United States v. Trowell, 1998 WL 766783, at *1 (4th

Cir. Oct. 20, 1998).

            In 2001, while still in state prison, Trowell submitted

a request to BOP asking that it designate Maryland’s Division of

Correction as the place of his federal confinement so as to


                                      4
effectuate the state court’s concurrency order. BOP responded that

it was inclined to grant his request, but that “[a] designation for

concurrent service of sentence is made only with the [federal

sentencing] Court’s consent.”      J.A. 85.   In accordance with agency

policy, BOP then sent a letter to the sentencing judge to ask

whether she had any “objection to granting Mr. Trowell’s request

for concurrency.” J.A. 88. The Supervising Probation Officer with

the U.S. District Court in South Carolina responded to BOP’s

inquiry on the sentencing judge’s behalf, stating only that the

judge was “den[ying] Mr. Trowell’s request for concurrency.”          J.A.

90.   BOP did not inform Trowell that his designation request had

been denied until nearly a year later.         BOP’s letter to Trowell

stated that “[b]ased upon the court[’]s objection, [BOP] has

determined a concurrent designation is not appropriate.”        J.A. 92.

At this point, Trowell had completed his state sentence and had

begun serving his federal sentence at Butner.

           Trowell filed his current habeas petition on February 2,

2003, arguing that a proper interpretation of 18 U.S.C. § 3621(b)

requires BOP to grant his request for a nunc pro tunc designation

of a Maryland facility as the place of federal confinement.             He

further argued that BOP improperly denied his request solely on the

basis of the federal sentencing court’s objection. Respondents Art

Beeler,   the   Butner   warden,   and   Kathleen   Hawk   Sawyer,   BOP’s

Director, filed a motion for summary judgment, and Trowell filed a


                                    5
cross-motion for summary judgment.              The district court granted the

respondents’ motion and denied Trowell’s, holding that BOP’s denial

of Trowell’s request for nunc pro tunc designation (1) did not

violate constitutional principles, and (2) was neither arbitrary

nor capricious.        This appeal followed.



                                          II.

           We    review       de   novo   the    district   court’s        denial    of

Trowell’s § 2241 petition.            See Selgeka v. Carroll, 184 F.3d 337,

342 (4th Cir. 1999).          We review BOP’s decision to grant or deny a

prisoner’s      nunc    pro    tunc    designation     request       for     abuse   of

discretion.     See United States v. Evans, 159 F.3d 908, 911-12 (4th

Cir. 1998); Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1991).



                                          A.

           Trowell’s         first    argument   on   appeal    is    that     BOP   is

affirmatively obligated to grant his nunc pro tunc designation

request    because      to    conclude     otherwise    would        raise    serious

constitutional concerns, such as those involving principles of

federalism, dual sovereignty, comity, separation of powers, and due

process.   By its very nature this argument implies that BOP has no

discretion to deny such a request when a state court directs that

its sentence is to be served concurrently with a previously imposed

federal sentence.        We disagree.


                                           6
          Section 3621(b) grants BOP wide latitude in selecting the

place of a federal prisoner’s confinement, stating that BOP “may

designate any available penal or correctional facility that meets

minimum standards of health and habitability . . . , [regardless

of] whether [the facility is] maintained by the Federal Government

or otherwise . . . , that [BOP] determines to be appropriate and

suitable.”   18 U.S.C. § 3621(b).1   In making such designations,

BOP’s discretion is guided by five factors.   See id. § 3621(b)(1)-

(5). We have found no constitutional defect in these congressional

directives, and we therefore believe the statute properly grants

BOP the authority to exercise sound discretion in designating

particular facilities.

          Indeed, there is no constitutional defect in the present

circumstances because at the time the Maryland court entered its

order directing concurrent service of the state sentence, Trowell

had not yet begun his federal term of imprisonment.   Had Maryland

wished to give effect to its court’s concurrency order, the state

could have, for example, attempted to relinquish or waive primary

jurisdiction after Trowell was sentenced in state court.   In other

words, Maryland could have sought to deliver him into federal




     1
       Section 3621(b) thus authorizes BOP to designate a state
facility as the place of federal confinement. See Evans, 159 F.3d
at 911-12; Barden, 921 F.2d at 478.

                                7
custody for the purpose of beginning his federal sentence.2               See

Barden, 921 F.2d at 482; United States v. Warren, 610 F.2d 680,

684-85 (9th Cir. 1980); Br. of Respondents at 8-9, 17-19, 24-27

(acknowledging the right of a sovereign to relinquish primary

jurisdiction   and    suggesting   that   this   represents    the   proper

mechanism whereby the sovereign can give effect to such concurrency

orders).   In Trowell’s case Maryland did not pursue this (or any

equivalent) course of action.      For these reasons, we conclude that

the   circumstances    of   this   case   do   not   present   any   of   the

constitutional concerns suggested by Trowell.



                                    B.

           Trowell’s second argument on appeal is that BOP abused

its statutory discretion by rejecting his nunc pro tunc designation

request solely on the basis of the sentencing court’s objection.

Therefore, according to Trowell, the rejection of his request was



      2
       The concept of primary jurisdiction refers to “the priority
of service regarding a defendant’s contemporaneous obligations to
multiple sovereigns, whereby a defendant will fulfill his
obligations to the sovereign with primary jurisdiction over him
before any others.” Savvas Diacosavvas, Note, Vertical Conflicts
in Sentencing Practices: Custody, Credit, and Concurrency, 57
N.Y.U. Ann. Surv. Am. L. 207, 210 (2000).       Maryland obtained
primary jurisdiction over Trowell as the first arresting sovereign
and retained legal custody at all relevant times.      Trowell was
delivered to federal authorities for the purpose of answering to
the federal charge pursuant to a writ of habeas corpus ad
prosequendum.    Such writs have no effect on jurisdictional
priority. See Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir.
1992).

                                     8
necessarily arbitrary and capricious.              We find merit in this

argument and conclude that in rejecting Trowell’s request solely on

the basis of the sentencing court’s objection, BOP abdicated its

statutory responsibility to bring its independent judgment to bear

on the matter.   As a result, BOP’s denial of Trowell’s nunc pro

tunc designation request was arbitrary and capricious and the

agency necessarily abused its discretion.

           We begin by focusing on the statutory language.                 As

noted, § 3621(b) grants BOP discretion to select the place of a

federal   prisoner’s   confinement,      stating    that   the   agency   may

“designate any available penal or correctional facility that meets

minimum standards of health and habitability . . . , [regardless

of] whether [the facility is] maintained by the Federal Government

or otherwise . . . , that [BOP] determines to be appropriate and

suitable.”   18 U.S.C. § 3621(b).       The statute specifically directs

BOP to consider five factors in making this determination:

          (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.



                                    9
Id.    Here, BOP accorded controlling weight to the fourth factor,

and it erred in doing so.

              Section 3621(b) obliges BOP to designate an appropriate

facility for the service of a federal sentence.                     See id. (“The

Bureau of Prisons shall designate the place of the prisoner’s

imprisonment.”).         By     effectively   delegating       to    the    federal

sentencing      court   ultimate    decisional      control    over     Trowell’s

request,      BOP   abdicated    its   statutory     responsibilities          under

§ 3621(b). Here, the record amply supports the conclusion that the

agency denied Trowell’s nunc pro tunc designation request solely on

the basis of the federal sentencing court’s objection.                     Prior to

its correspondence with the federal sentencing court, BOP expressed

its intent to allow the designation so long as “the [federal

sentencing] Court ha[d] no objection.”              J.A. 85.    In response to

BOP’s inquiry, the Supervising Probation Officer answered simply

that    the    judge    was    “den[ying]     Mr.   Trowell’s        request    for

concurrency.”       J.A. 90.     BOP subsequently informed Trowell that,

“[b]ased upon the court[’]s objection, [BOP] has determined a

concurrent designation is not appropriate.”                   J.A. 92.       It is

therefore clear that BOP effectively ceded veto power over its

decision to the federal sentencing court.             This sub-delegation of

authority is incompatible with § 3621(b)’s command.                     While the

statute allows BOP “to solicit the views of the sentencing judge,”

the judge’s “decision is not controlling under the statute.”


                                       10
Barden, 921 F.2d at 483; see also Pub. Serv. Co. v. ICC, 749 F.2d

753,       763    (D.C.    Cir.   1984)   (noting     that   agencies   exercising

discretion under federal statutes with multi-factor tests must take

each factor into account and cannot “select any one factor as

controlling”).            While the federal sentencing court may of course

express its views on the matter, BOP cannot simply accept these

views at face value and accord them controlling weight as a blanket

policy.          In other words, BOP may not simply defer entirely to the

will or the reasoning of the federal sentencing court when faced

with an inmate’s request for nunc pro tunc designation.

                 The   respondents   defend     the   district   court’s   summary

judgment order on the basis that the statute grants BOP broad

discretion to grant or deny nunc pro tunc designation requests.

BOP’s discretion is not unfettered, however, and (as noted above)

its consideration of such requests is guided by § 3621(b)’s five

factors.         The respondents further argue that BOP Program Statement

5160.04 is entitled to deference under Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).3                 An

agency policy statement setting forth the agency’s interpretation



       3
       BOP Program Statement 5160.04, entitled “Designation of
State Institution for Service of Federal Sentence,” had an
effective date of April 19, 2000.     BOP considered and rejected
Trowell’s request under this version of its Program Statement. The
Statement was updated and modified on January 16, 2003, and is
currently identified as Program Statement 5160.05. This current
version     can    be    accessed     on     the    internet    at
http://www.bop.gov/policy/progstat/5160_005.pdf.

                                           11
of a governing statute, however, “lack[s] the force of law” and is

not entitled to Chevron deference.           See Christensen v. Harris

County, 529 U.S. 576, 587 (2000).           Rather, such statements are

“entitled to respect,” but only to the extent that they have the

“power to persuade.”         Id. (internal quotation marks omitted).

Here, agency policy specifies that designation of a non-federal

institution as the place for service of a federal sentence is

allowed only when the designation would be consistent with the

“intent” of the federal sentencing court.            BOP Program Statement

5160.04(9).       When an inmate submits a request for nunc pro tunc

designation, agency policy requires the regional BOP administrator

to contact the federal sentencing court to “inquir[e] whether the

court has any objections.”          Id. 5160.04(9)(d).        If the court

objects,    the    request   is   denied.     We     find   this     statutory

interpretation unpersuasive, as indicated by our discussion above,

because BOP may not simply defer to the expressed views of the

federal    sentencing   court;    rather,   BOP    must   exercise    its   own

independent judgment, taking into account all applicable factors in

§ 3621(b), including the views of the sentencing court.4




     4
       We emphasize that we do not hold that BOP must consider each
factor listed in § 3621, but rather only that it must consider each
factor that is relevant to its decision in ruling on a nunc pro
tunc designation request. We also emphasize that in remanding for
the BOP to consider each relevant factor, we do not hold that BOP
must give each relevant factor equal weight.


                                     12
                                   III.

             For the above reasons, we conclude that BOP abused its

discretion when it rejected Trowell’s nunc pro tunc designation

request solely on the basis of the federal sentencing court’s

objection.     We therefore reverse the district court’s award of

summary judgment to the respondents.       On remand the district court

should enter an order directing the respondents to reconsider, in

light   of   this   opinion,   Trowell’s   request    for   nunc   pro   tunc

designation.



                                                     REVERSED AND REMANDED




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