                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-1999

USA v. Dorsey
Precedential or Non-Precedential:

Docket 98-5250




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Filed January 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5250

UNITED STATES OF AMERICA,

v.

LORENZO DORSEY, aka LAMONT WHITE,
aka HENRY JACKSON,
       Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 96-cr-00461-1)

ARGUED OCTOBER 29, 1998

BEFORE: STAPLETON and LEWIS, Circuit Judges,
and CALDWELL,* District Judge.

(Filed January 29, 1999)

       Chester M. Keller (ARGUED)
       Office of Federal Public Defender
       972 Broad Street
       Newark, NJ 07102

        Attorney for Appellant



_________________________________________________________________

* Honorable William W. Caldwell, United States Senior District Judge for
the Middle District of Pennsylvania, sitting by designation.
       George S. Leone
       Shawna H. Yen (ARGUED)
       Office of United States Attorney
       970 Broad Street, Room 700
       Newark, NJ 07102

        Attorneys for Appellee

OPINION OF THE COURT

CALDWELL, District Judge.

Lorenzo Dorsey appeals from the district court's refusal
at sentencing to follow commentary to U.S.S.G. S 5G1.3(b)
in application note 2 to the guideline. Under that note, the
court could have reduced Dorsey's federal sentence by a
certain amount of time he had spent in state custody,
thereby essentially giving him credit for that period of
imprisonment before the federal sentence was imposed.
Dorsey also asserts that the district court's action violates
the double jeopardy clause because by refusing him credit
the United States would be punishing him twice for the
same offense.

Because the district court erred in deciding that only the
Bureau of Prisons has the authority to grant sentencing
credits, we will reverse and remand for resentencing, and
direct that the court comply with the procedure set forth in
the application note. Our resolution of this guidelines issue
renders consideration of the double jeopardy claim
unnecessary.

I.

On May 7, 1996, the appellant was arrested in Newark,
New Jersey, and charged with illegal possession of a
firearm. He was sent to a New Jersey state prison the next
day for a parole violation arising from this firearms offense.
Both the United States and New Jersey decided to
prosecute him for the offense. On August 21, 1996, he was
indicted in federal court under 18 U.S.C. S 924(g)(1). On
September 18, 1996, he was indicted in a New Jersey

                                 2
court. On October 8, 1996, the appellant was released into
the community from the sentence he was serving in state
prison for the parole violation. On April 11, 1997, he was
arrested by state authorities and incarcerated in a New
Jersey state prison. Federal authorities lodged a detainer
against him.

Appellant pled guilty to the state charge. On August 22,
1997, he was sentenced in state court to five years
imprisonment. In sentencing the appellant, the state court
credited him with the 134 days he had spent in state
custody from April 11, 1997, to the date of sentencing.

The appellant also pled guilty to the federal offense. On
May 12, 1998, he was sentenced to 115 months. Invoking
application note 2 to U.S.S.G. S 5G1.3(b), the appellant
sought credit for the entire time he had spent in state
prison before his federal sentencing. This was a period of
about 13 months, from April 11, 1997 (the date he was
arrested on both the federal and state charges arising from
the May 1996 firearms offense) to May 12, 1998, the date
of his federal sentencing. However, the court refused the
appellant's request, ruling that it had no authority to do so
and that only the Bureau of Prisons (BOP) could give credit
for the time he was incarcerated before imposition of
sentence. As required by U.S.S.G. S 5G1.3(b), the district
court did order that the sentence run concurrently with the
state sentence.1 And, as a concession to the appellant, the
court noted on its judgment order that it had not decided
the issue of sentence credit and was leaving it to the BOP.

Dorsey then took this appeal. While the appeal was
pending, the BOP gave the appellant credit for a part of the
_________________________________________________________________

1. Section 5G1.3(b) provides, in pertinent part, as follows:

        If . . . the undischarged term of imprisonment resulted from
       offense(s) that have been fully taken into account in the
       determination of the offense level for the instant offense, the
       sentence for the instant offense shall be imposed to run
       concurrently to the undischarged term of imprisonment.

Here the undischarged term of imprisonment was the New Jersey
sentence for the same firearms offense that was the subject of the federal
offense.

                                3
13-month period. The BOP gave him credit for the following
periods of prefederal-sentencing incarceration, totaling
about four months and two weeks: (1) May 7, 1996, the
date of his apprehension on the firearms offense (for which
he began serving a state parole-violation term the next day),
and (2) a period from April 11, 1997, the date he was
arrested on the federal and state firearms charges, to
August 21, 1997, the day before his state-court sentencing.
However, it refused to give him credit for the approximately
10-month period between his state sentencing, August 22,
1997, and his federal sentencing, May 12, 1998. The
parties agree that no credit was given for the latter period
because 18 U.S.C. S 3585(b) prohibits the BOP from
granting credit for time "that has been granted against
another sentence," and this 10-month period was time
serving his state sentence credited by New Jersey. See The
Bureau of Prisons' Sentence Computation Manual at 1-17
("credit will not be given for any portion of time spent
serving another sentence [until a state facility is deemed
federal which may only occur after the federal sentencing]").

II.

Initially, we note that U.S.S.G. S 5G1.3(b) itself is not at
issue here. As indicated by its language, that guideline
section only requires that the sentencing court run the
federal sentence concurrently to the undischarged term of
the other sentence. The district court complied with this
guideline and made the federal sentence concurrent with
the New Jersey sentence.

The controversy arises from application note 2 to section
5G1.3(b), the commentary to that guideline section, which
provides further guidance for the sentencing court in
imposing the concurrent sentence. On its face, application
note 2 would require, at least partially, the result the
appellant sought at sentencing. The application note,
captioned "Adjusted concurrent sentence--subsection (b)
cases," provides:

       When a sentence is imposed pursuant to subsection
       (b), the court should adjust the sentence for any period
       of imprisonment already served as a result of the

                               4
       conduct taken into account in determining the
       guideline range for the instant offense if the court
       determines that period of imprisonment will not be
       credited to the federal sentence by the Bureau of
       Prisons.

The note then immediately follows with an example:

       The defendant is convicted of a federal offense charging
       the sale of 30 grams of cocaine. Under S 1B1.3
       (Relevant Conduct), the defendant is held accountable
       for the sale of an additional 15 grams of cocaine, an
       offense for which the defendant has been convicted and
       sentenced in state court.

Continuing with the example, the note further assumes
that the guideline range is 10 to 16 months and that the
defendant was sentenced in state court to nine months on
which he has already served six months. In these
circumstances, the note advises the district court that, if it
decides that a 13-month federal sentence is appropriate, it
should shorten that sentence to seven months and, in this
way, give credit on the federal sentence for the six months
already served on the state sentence. The application note
closes by advising the sentencing court that it should note
on the sentencing order what it has done so that the
adjustment is not confused with a departure from the
guideline range but rather recognized as a "credit[ ]" under
S 5G1.3(b) for time served "that will not be credited to the
federal sentence under 18 U.S.C. S 3585(b)." (brackets
added).

In the instant case, if the district court had applied
application note 2, while it could not have granted the full
credit the appellant sought, it could have granted a
sentence adjustment of some 10 months, representing a
credit for the period between the date of the appellant's
state sentencing, August 22, 1997, and the date of his
federal sentencing, May 12, 1998. This represents a period
of imprisonment that would not have been credited to the
federal sentence by the BOP, as the BOP's later decision
confirmed, because it represented time that the appellant
was already serving on his state sentence.

                               5
Thus, we would have to reverse and remand for
resentencing to allow for this credit unless the government
is correct that application note 2 is invalid and that the
district court correctly refused to follow it. Our review of the
district court's legal interpretation of section 3585(b) and
the guidelines is plenary. See United States v. Williamson,
154 F.3d 504 (3d Cir. 1998). We turn now to the
government's arguments.

The government first contends that the district court was
correct because under 18 U.S.C. S 3585(b), as construed by
the Supreme Court in United States v. Wilson, 503 U.S.
329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992), only the
Attorney General (by way of delegation to the BOP) has the
authority to award credit for time served before federal
sentencing. Section 3585(b) states as follows:

       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.

18 U.S.C. S 3585(b). In Wilson, the Supreme Court held
that, despite the ambiguity as to who was to award credit
for time served, only the BOP has the authority under
section 3585(b) to award such credit. However, the
government reads too much into Wilson.

The government argues that Wilson controls here because
Wilson also dealt with federal and state sentences arising
from the same criminal episode. However, it is not apparent
from Wilson that Wilson did deal with such related offenses.
The Supreme Court did not describe the offenses as being
related. It merely stated that the defendant had been
arrested on federal and state charges and had been held for
a time in state custody on both sets of charges.
Additionally, the lower court opinion indicates that they

                                6
were unrelated offenses. See United States v. Wilson, 916
F.2d 1115, 1116 (6th Cir. 1990) (after noting the federal
arrest for attempted bank robbery, noting that the
defendant had been arrested by state authorities
"apparently in connection with various other robberies")
(emphasis added). Wilson does not apply here because it
did not deal with the situation of a federal court exercising
its discretion to impose a concurrent sentence and how to
make that sentence truly concurrent to a sentence for a
related offense, the subject of application note 2.2

The government next argues that the district court acted
properly because it did comply with U.S.S.G. 5G1.3(b) by
imposing a federal sentence concurrent with the state
sentence. The government points out that guidelines
section 5G1.3(b), as opposed to application note 2, only
requires that the sentence for the instant offense"be
imposed to run concurrently to the undischarged term of
imprisonment"; it says nothing about adjusting the federal
sentence to allow credit for prefederal sentencing detention.
This argument is of no moment because the appellant is
not relying on section 5G1.3(b) alone but on the
commentary to that section in application note 2. We
therefore turn to the government's arguments against the
validity of application note 2.

The government contends that application note 2 is
invalid for three reasons. First, it conflicts with section
3585(b) which, in the government's view, confers sole
authority on the BOP to award custody credit. Second, the
_________________________________________________________________

2. For the same reason other cases the government cites are
distinguishable. United States v. Brann, 990 F.2d 98 (3d Cir. 1993), dealt
solely with whether the court rather than the BOP should award credit
for presentencing home detention. In accord with Wilson, we held that
the BOP was responsible. United States v. Pineyro, 112 F.3d 43 (2d Cir.
1997), and United States v. McGee, 60 F.3d 1266 (7th Cir. 1995), dealt
with unrelated state sentences. United States v. Cobleigh, 75 F.3d 242
(6th Cir. 1996), dealt with credit for a period of time the defendant was
released on his own recognizance. United States v. Jenkins, 38 F.3d
1143 (10th Cir. 1994), dealt with credit for a period of in-home
detention. United States v. Moore, 978 F.2d 1029 (8th Cir. 1992), dealt
with credit for time served in state custody on state charges that were
subsequently dismissed.

                               7
provisions of application note 2 exceed the statutory
authority of the Sentencing Commission. Third, upholding
the note and allowing sentencing courts to grant credit
along with the BOP will result in an unworkable scheme of
shared authority.

In its first argument, the government contends that the
conflict between section 5G1.3(b) and section 3585(b) arises
because application note 2 allows a sentencing court to
grant credit when in light of section 3585(b) only the BOP
has the authority to do so. The government acknowledges
that generally a sentencing court must follow commentary
to the Guidelines, see Stinson v. United States, 508 U.S. 36,
113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), but asserts here
that the commentary conflicts with section 3585(b) and is
therefore invalid. Id. at 45, 113 S.Ct. at 1919, 123 L.Ed.2d
at 608. See also United States v. Higgins, 128 F.3d 138,
141 (3d Cir. 1997) ("[a] Guideline cannot trump a statute
with which it conflicts.") (brackets added).

We reject the government's position. In the instant case,
the government would compare application note 2 solely to
section 3585(b), but the situation is more complex than
that. Under 18 U.S.C. S 3584(a), a district court has the
authority to impose a concurrent sentence, but section
3584(b) requires the court to consider the factors listed in
18 U.S.C. S 3553(a). In turn, the latter section requires the
court to consider "any applicable guidelines or policy
statements issued by the sentencing Commission," as the
Commission noted in its "Background" commentary to
section 5G1.3. See 18 U.S.C. S 3553(a)(4)(A). Section 5G1.3
was promulgated under the Sentencing Commission's
authority, under 28 U.S.C. S 994(a)(1)(D), to issue
guidelines for the use of sentencing courts in determining
whether multiple sentences "should be ordered to run
concurrently or consecutively." Application note 2 is
commentary to subsection (b) of guidelines section 5G1.3.

We are thus not confronted with a bare conflict between
statutory section 3585(b) and guidelines section 5G1.3(b),
but with a potential conflict between the BOP's authority
under section 3585(b) to grant credit for presentencing
detention and the sentencing court's authority to impose a
concurrent sentence. And the real issue is whether the

                                8
sentencing court's authority must extend beyond the mere
imposition of a concurrent sentence to the authority to
impose a truly concurrent one, that is, a sentence that is
not frustrated by the happenstance of when a defendant is
sentenced in state and federal court. We believe a
sentencing court has that authority under section 3584(a)
and that application note 2 facilitates the court's authority.
Moreover, as written, there is no conflict between the note
and section 3585(b) because a district court can only award
credit when the BOP will not do so.

To begin with, the Supreme Court has noted that the
overall purpose of section 5G1.3 is "to mitigate the
possibility that the fortuity of two separate prosecutions will
grossly increase a defendant's sentence." Witte v. United
States, 515 U.S. 389, 405, 115 S.Ct. 2199, 2209-10,
132 L.Ed.2d 351, 367 (1995). In Witte, the Court also
stated:

       There are often valid reasons why related crimes
       committed by the same defendant are not prosecuted
       in the same proceeding, and S 5G1.3 of the Guidelines
       attempts to achieve some coordination of sentences
       imposed in such situations with an eye toward having
       such punishments approximate the total penalty that
       would have been imposed had the sentences for the
       different offenses been imposed at the same time (i.e.,
       had all of the offenses been prosecuted in a single
       proceeding). See USSG S 5G1.3, comment., n. 3.

Id. at 404-05, 115 S.Ct. at 2208, 132 L.Ed.2d at 367. In
Witte the Court was discussing the 1992 version of the
commentary, not the 1995 version that we are dealing with.
However, the 1995 version does not differ materially from
the current application note. The major difference is that
application note 2 now explicitly recognizes that the court
cannot grant credit when the BOP will do so.

Our position is supported by other courts that have
considered the issue. In United States v. Kiefer, 20 F.3d 874
(8th Cir. 1994), the Eighth Circuit held that a sentencing
court had authority under section 5G1.3(b) to grant a
defendant credit on his federal sentence for all the time he
served, before the federal sentencing, in Minnesota state

                               9
custody on a related state charge. Under 18 U.S.C.
S 924(e)(1), the defendant was subject to a mandatory
minimum federal sentence of 15 years (180 months). Under
his plea agreement, he could not be sentenced to more than
188 months. He had spent 14-and-one-half months in state
custody. The district court applied section 5G1.3(b) but
believed that it could not reduce the sentence below the
mandatory minimum. Hence, instead of a sentence of 173-
and-one-half-months, it imposed a sentence of 180 months.

On appeal, the Eighth Circuit first rejected the
government's argument that the defendant was seeking a
sentence credit and hence under Wilson had to seek relief
from the BOP. The court stated:

       [I]n this appeal Kiefer seeks to invoke a Guidelines
       provision to reduce his federal sentence. That is a
       question for the sentencing court, and we find nothing
       in Wilson suggesting that the Attorney General's
       authority under S 3585(b) limits a sentencing court's
       power to apply S 5G1.3 of the Guidelines. Therefore, we
       agree with the district court that it had jurisdiction to
       consider this S 5G1.3 issue.

Id. at 875-76 (brackets added). The court also noted that:
"In general, S 5G1.3 is intended to result in a federal
sentence `that most nearly approximates the sentence that
would have been imposed had all the sentences been
imposed at the same time.' S 5G1.3, comment. (backg'd)."
Then, turning to the precise issue presented, whether a
mandatory minimum sentence prevents full application of
section 5G1.3(b), the court stated:

       Section 924(e)(1) was enacted after the Sentencing
       Reform Act. The Reform Act provides that the district
       courts must determine whether sentences should be
       concurrent or consecutive. See 18 U.S.C.S 3584(b). In
       doing so, the court "shall consider," among other
       factors, "the kinds of sentence ... set forth in the
       guidelines." 18 U.S.C. S 3553(a). Section 5G1.3 is part
       of that sentencing regime. Since in this example Kiefer
       was "imprisoned" by Minnesota for the identical
       firearms offense, we conclude that there would be no
       violation of the plain language of S 924(e)(1), and that

                                10
       these various sentencing statutes would be properly
       harmonized, if S 924(e)(1) were construed to permit the
       sentencing court to give Kiefer a sentence credit in the
       form of a reduced federal sentence under S 5G1.3(b).

Id. at 876. The court remanded so that the sentencing
court could exercise its discretion to award a full credit for
the time spent in state custody. Kiefer was followed in
United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), a case
also dealing with a mandatory minimum sentence under
section 924(e)(1).

We adopt Kiefer's reasoning. Guidelines section 5G1.3(b)
and application note 2 harmonize the court's discretion
under section 3584 to make a federal sentence concurrent
with other terms of imprisonment and the BOP's authority
under section 3585(b) to award credit for presentence
custody. There is no conflict between the two because
application note 2 restricts the credit the sentencing court
can award to time that will not be awarded by the BOP.
And the court must be able to award this credit to make
the sentences truly concurrent. Otherwise, the concurrent
sentencing principles of section 3584 would be frustrated.
See Kiefer, 20 F.3d at 876.

The government criticizes Kiefer and Drake as dealing
with the issue in dicta and in a conclusory fashion.
However, Kiefer's ruling on this issue was a necessary part
of its decision to reverse the district court and it made plain
why it ruled as it did, to harmonize the sentencing court's
authority with that of the BOP.

In regard to the government's second argument, based on
the foregoing, it follows that the promulgation of application
note 2 did not exceed the Commission's authority since it
effectuates the sentencing court's discretion to impose a
concurrent sentence. As noted above, under 18 U.S.C.
S 3584(a) the sentencing court has the discretion to impose
a concurrent sentence. In doing so, it must consider the
factors listed in 18 U.S.C. S 3553(a). Among these factors
are guidelines and commentary from the Sentencing
Commission. Under 28 U.S.C. S 994(a)(1)(D), the
Commission has the authority to promulgate guidelines for
the determination of whether a sentence shall run

                               11
concurrently or consecutively. A sentence cannot be
concurrent if the random chance of when multiple
sentences are imposed results in a defendant serving,
contrary to the intent of the sentencing court, additional
and separate time on one sentence that was meant to be
served at the same time as another sentence.

As the Supreme Court also indicated, the government's
position also introduces a certain fortuity into the
sentencing process because under the BOP's interpretation
of section 3585(b), credit for time served before imposition
of the federal sentence will depend on when the state
sentence was imposed. For example, in the instant case, if
New Jersey had sentenced the appellant on September 22,
1997, or October 22, 1997, rather than on August 22,
1997, appellant would have received credit on his federal
sentence for the additional one- or two-month period
because this was time that he was not yet serving on his
state sentence and hence allowable as a credit against the
federal sentence. Yet, because he was actually sentenced on
August 22, 1997, he received a smaller credit. Actual time
of imprisonment should not turn on the happenstance of
the scheduling of sentencing dates.3

The government's final argument is that a scheme of
shared authority over sentence credits by the sentencing
court and the BOP is unworkable. The government points
out that section 5G1.3(b), in allowing the sentencing court
to grant a credit for time that will not be credited by the
BOP, requires the sentencing court to predict what credit
will be awarded by the BOP. The government argues that
this will not always be readily apparent to a sentencing
court but that the BOP can be accurate in its award of
credit because of its administrative expertise and because
it has the assistance of its Sentencing Computation
Manual.

As an example, the government argues that in the instant
case, despite the language on the face of section 3585(b)
_________________________________________________________________

3. We also reject the government's contention that, because the example
used concerns relevant conduct, the note applies only to credit for
relevant conduct. The example is just an example. The note broadly
refers to credit for time that will not be credited by the BOP.

                                12
prohibiting credit for time served on another sentence, the
BOP did award the appellant credit for about four months
and two weeks, essentially the period between the date of
his arrest on the charges and the date of his New Jersey
sentencing, even though the appellant received credit for
this time on his New Jersey sentence. These are so-called
Willis credits, named after Willis v. United States, 438 F.2d
923 (5th Cir. 1971). The government also points out that
the BOP refused to award credit for the additional 10-
month period because the BOP manual forbids it.

The government stresses that a district court, in relying
only on section 3585(b) could easily make the wrong
prediction as to what credit will be awarded. Further,
"[e]ven if the district courts had the time or resources to
decipher the Bureau of Prison's voluminous and highly
technical Sentencing Computations Manual," (government's
brief at p. 28), the government argues that the court's lack
of expertise will sometimes lead to a mistake, a mistake
that would be compounded because neither the government
nor the defendant would have any recourse under
application note 2 from such an error.

We reject this argument. Although the government
contends that the computation of sentencing credits is
fraught with difficulty, the only example it raises is the
instant case, which presents a straightforward calculation.
Under section 5G1.3(b), the district court does not award a
Willis credit (because this is time that will be awarded by
the BOP) but does award credit for the remainder of the
prefederal sentencing time (because the BOP cannot award
this under section 3585(b)). We note that the courts in
Kiefer and Drake did not see any difficulty in applying
section 5G1.3(b) nor did the courts in United States v. Bell,
28 F.3d 615 (7th Cir. 1994), or United States v. Hicks, 4
F.3d 1358 (6th Cir. 1993), cases in which the courts also
applied section 5G1.3(b).

Contrary to the government's position, any error in the
section 5G1.3(b) sentence adjustment can be corrected on
direct appeal. Under 18 U.S.C. S 3742(a)(2), the defendant
can appeal an incorrect application of the sentencing
guidelines and under section 3742(b)(2), the government
may do the same.

                                13
III.

For the foregoing reasons, we will vacate the district
court's sentencing order and remand with direction that the
court follow the dictates of application note 2 to U.S.S.G.
S 5G1.3(b) in resentencing the appellant.

                               14
STAPLETON, Circuit Judge, Concurring:

I join the opinion of the Court. I write separately to note
that much of the conflict which the government perceives
between S 3585(b) and Application Note 2 to U.S.S.G.
S 5G1.3(b) is attributable to its use of the word "credit" to
refer to two distinct benefits that a convicted defendant
may receive. A sentencing judge is charged with
determining the length of any sentence of incarceration to
be served. In the course of doing so, it may impose a lesser
sentence than it otherwise would because of any number of
relevant factors in the case. After a defendant has been
sentenced to a term of incarceration, the custodian must
determine when the sentence imposed will have been
satisfied. In the course of doing so, the custodian may give
"credit" against the sentence for such things as presentence
detention, good behavior, etc.

In Chapter 35 of Title 18, "giving credit" is used as a term
of art referred only to the latter form of benefit. We agree
with the Eighth and Ninth Circuit Courts of Appeal that the
Supreme Court in Wilson was referring only to the latter
form of benefit when it held that only the Bureau of Prisons
is authorized by S 3585(b) to "give credit" against a
previously imposed sentence. While it is true, as the
government stresses, that the effect upon the defendant
may be the same whether he receives a sentence shortened
to reflect presentence detention or a sentence not so
shortened followed by credit for such detention, we cannot
ignore the fact that "giving credit" is used as a term of art
in S 3585(b) and is not mentioned at all in S 5G1.3(b).

As the opinion of the Court explains, Congress'
sentencing scheme assigns to the sentencing judge the task
of determining whether the sentence to be imposed shall
run consecutively or concurrently with a previously
imposed sentence. In the specific situation where the
conduct for which a defendant is being sentenced has
resulted in a previously imposed sentence, S 5G1.3(b),
utilizing the authority granted by S 3584(b), makes a policy
choice that the total time served for the conduct not vary
depending on the fortuity of when the two sentences are
imposed. It accomplishes this by providing (a) that the new
sentence will run concurrently with the undischarged term

                               15
of the prior sentence, and (b) that the new sentence will be
reduced by an amount equal to the time previously served
on the prior sentence if the Court determines that the
Bureau of Prisons will not give credit for such time under
S 3585(b).1 We do not find this policy choice unauthorized
by the Sentencing Reform Act or inconsistent with
Congress' intent that, once a sentence is imposed, the
Attorney General or its designee have sole authority to
determine when that sentence will be discharged.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

1. Contrary to the government's suggestion, our decision today will not
require that district courts master the BOP manual on sentencing credits
and predict how it will be applied in a multitude of new situations.
Section 3585(b) applies generally to credit for all kinds of pretrial
detention and specifically forecloses the BOP from awarding credit for
time that has been "credited against another sentence." U.S.S.G.
S 5G1.3(b) applies to a limited universe of cases in which the prior
detention is attributable to service of a prior sentence that should run
concurrently with the one being imposed. In at least the vast majority of
S 5G1.3(b) cases, the BOP will be foreclosed from granting a relevant
credit because the time previously served will have been credited towards
another sentence.

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