                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 15-6134


ANTHONY WAYNE MANGUM,

                 Petitioner - Appellant,

           v.

WARDEN S. HALLEMBAEK,

                 Respondent – Appellee,

           and

UNITED STATES OF AMERICA; BUREAU OF PRISONS,

                 Respondents.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:13-hc-02227-FL)


Argued:   January 28, 2016                    Decided:   May 25, 2016


Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed   in  part,   vacated   in  part,   and  remanded with
instructions by published opinion. Senior Judge Davis wrote the
opinion, in which Judge Gregory and Judge Harris joined.


ARGUED: Clint Cowan, Travis Andrews, UNIVERSITY OF VIRGINIA
SCHOOL  OF  LAW,  Charlottesville, Virginia, for  Appellant.
Michael Bredenberg, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.     ON BRIEF: Stephen L.
Braga, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Thomas
G. Walker, United States Attorney, R.A. Renfer, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.




                               2
DAVIS, Senior Circuit Judge:

     Anthony Wayne Mangum appeals the district court’s denial of

his petition for a writ of habeas corpus under 28 U.S.C. § 2241,

pursuant to which he challenged the computation of his federal

sentence    and,      more    specifically,            the      refusal     of    the    federal

Bureau of Prisons (“BOP”) to designate nunc pro tunc a state

facility       for     service       of    his        federal      sentence.             Such     a

designation      would       have    had    the       effect      of    crediting        against

Mangum’s previously imposed federal sentence the time he spent

in state prison on a subsequently imposed state sentence.                                       And

indeed, it is undisputed that the state sentencing judge, who

imposed    a    sentence        after      the       federal      judge     had     imposed       a

sentence,      desired       exactly      that        result.         The   district       court

granted summary judgment in favor of appellee, the warden of

Mangum’s    federal      correctional           institution,           reasoning        that    the

BOP had (1) correctly and appropriately calculated and executed

Mangum’s    federal       sentence        and        (2)   permissibly         exercised        its

discretion in denying a nunc pro tunc designation.

     For the reasons explained within, although we find no error

in   the    district      court’s         analysis         of    the      BOP’s    sentencing

calculation, we conclude that the district court overlooked a

two-pronged flaw in the BOP’s exercise of its broad discretion

in   denying         Mangum’s       requested         nunc      pro     tunc      designation.

Accordingly, as we conclude that the BOP abused its discretion,

                                                 3
we affirm the judgment in part, vacate in part, and remand the

petition to the district court with instructions that the court

remand Mangum’s request for a nunc pro tunc designation to the

BOP for further consideration.

                                                         I.

        The facts underlying Mangum’s serial arrests, convictions,

and sentencings are undisputed.

        Mangum was arrested by Oklahoma state authorities on drug

charges on February 9, 2006, and released on bond five days

later    on    February            14,    2006.              On   February    27,    2006,   he   was

indicted for conspiracy to distribute cocaine base by a federal

grand jury in the Middle District of North Carolina based on

substantially the same conduct giving rise to his state drug

charges.       The state drug charges were dismissed, and a federal

arrest warrant issued, but was not executed, at about that time;

Mangum remained at liberty.

     Several         months          later,          on       June    14,    2006,     Mangum     was

rearrested by Oklahoma state authorities and charged with felony

assault       and        battery         with        a       dangerous      weapon,    misdemeanor

possession          of     a       fictitious             driver’s       license,      misdemeanor

resisting an officer, and misdemeanor obstructing an officer.

     On August 23, 2006, a federal magistrate judge in North

Carolina      issued           a    writ        of       habeas      corpus     ad    prosequendum

requesting that Oklahoma transfer Mangum to federal custody for

                                                         4
proceedings in North Carolina, and Mangum shortly appeared in

the Middle       District         of    North     Carolina         to    answer       the    charges

there.       On November 8, 2006, Mangum pled guilty in federal court

to conspiracy to distribute cocaine base.                                He was sentenced on

May 16, 2007, to 262 months’ imprisonment and a five-year term

of supervised release.                  Neither in its oral pronouncement of

sentence      nor     in    its    written       judgment         did    the    district       court

state       whether     Mangum’s        federal         sentence         was     to    be    served

concurrently          with    or       consecutively          to     any       other    sentence,

including his yet-to-be-imposed state sentence in Oklahoma. 1

        On October 27, 2007, federal authorities returned Mangum to

Oklahoma       for         continuation          and     completion            of      the     state

proceedings arising from his June 14, 2006 arrest.                                    On December

3, 2007, Mangum pled guilty to all four charges then pending

against      him.      On     December       5,       2007,   a    state       judge    sentenced

Mangum to terms of imprisonment of ten, seven, one, and one

year(s),      respectively,            as   to    each    of       the    four      charges,     and

specifically ordered that the state sentences run concurrently

with each other and with the previously imposed North Carolina

federal sentence.            Thereafter, Mangum remained in the custody of

Oklahoma while serving his state sentences.                              He was paroled to a

        1
       Indeed, the record before us lacks any evidence as to
whether the federal sentencing court was even aware that Mangum
might have been facing a state sentence after he was sentenced
in federal court.


                                                  5
federal detainer on January 13, 2011, when, according to the

BOP, he commenced the actual service of his federal sentence in

a BOP facility.

     On January 3, 2013, at Mangum’s request, the BOP analyzed

whether to designate, nunc pro tunc, the Oklahoma prison as the

place for service of Mangum’s federal sentence pursuant to 18

U.S.C. § 3621. 2      See Barden v. Keohane, 921 F.2d 476 (3d Cir.

1990).     As part of its analysis, the BOP sought to contact

Mangum’s    federal   sentencing   court   in   the   Middle   District   of

     2   Section 3621(b) provides in relevant part as follows:

           (b) Place of imprisonment.--The Bureau of Prisons
     shall     designate    the     place    of   the    prisoner’s
     imprisonment.      The Bureau may designate any available
     penal or correctional facility that meets minimum
     standards of health and habitability established by
     the    Bureau,    whether    maintained     by   the   Federal
     Government or otherwise and whether within or without
     the judicial district in which the person was
     convicted,      that   the     Bureau    determines    to   be
     appropriate and suitable, considering--
           (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.

18 U.S.C. § 3621(b).


                                    6
North Carolina to inquire whether the court intended that the

federal    sentence     should   be     treated     as   concurrent    with   or

consecutive to the later imposed Oklahoma sentence.                   See supra

note   2   (quoting    18   U.S.C.    § 3621(b)(4)).        For    reasons    not

appearing in the record before us, the North Carolina federal

district court judge never responded to the BOP.                   Thereafter,

upon its review of the three (out of the five) statutory factors

it thought relevant to a request for nunc pro tunc relief for an

inmate such as Mangum, i.e., one who had completed his state

sentence entirely and had been transferred to federal custody,

the BOP declined to grant the nunc pro tunc designation of the

Oklahoma    state     facility   as   the   place    Mangum   would    commence

service of his federal sentence.            In so doing, the BOP reasoned

in part as follows:

       Regarding factor (4), the federal Judgment was silent
       on whether your sentence should run consecutively or
       concurrently to any other sentence. Pursuant to Title
       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.”

J.A. 61.     Thus, the BOP’s sentencing computation, coupled with

its    refusal   to     grant    nunc    pro   tunc      relief,   effectively

determined that the previously imposed federal sentence would be

served consecutively to the later imposed state sentence, and

this notwithstanding the clearly expressed intent of the state



                                        7
sentencing court that its sentence be served concurrently with

the federal sentence.

                              *         *        *       *      *

      On   October      24,     2013,       Mangum,      acting       pro   se,   filed      the

instant petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 in the Eastern District of North Carolina, where

he was being housed by the BOP.                      His petition sought credit, on

the   basis    of     several     distinct           theories,       against    his    federal

sentence for the time he spent serving his state sentence—from

June 14, 2006 to January 13, 2011.                       Appellee, the warden of the

BOP   facility      where     Mangum        is   serving       his    sentence,       filed   a

motion for summary judgment, which the district court granted in

a   thorough    memorandum        and       order     filed     on    December       29,   2014.

Mangum filed a timely notice of appeal on January 27, 2015, and

we appointed counsel and calendared the case for oral argument.

We have jurisdiction pursuant to 28 U.S.C. § 2253.

                                              II.

      Having had the benefit of comprehensive briefing by counsel

appointed to represent Mangum 3 and counsel for the warden, we

conclude,      with    the    exception          noted       below,   that     the    district

court correctly denied relief on Mangum’s claims relating to

      3 The panel expresses its gratitude for the excellent
representation provided by appointed counsel, which has greatly
aided this Court in its resolution of this appeal.



                                                 8
calculation and execution of his sentence, and we affirm the

judgment in part for the reasons stated by the district court.

Mangum v. Warden, No. 5:13-hc-02227-FL (E.D.N.C. Dec. 29, 2014).

      We    discern      legal   error,     however,       and   hence    an   abuse   of

discretion, cf. United States v. Rybicki, 96 F.3d 754, 757 (4th

Cir. 1996), in the BOP’s stated basis for its refusal to grant

Mangum nunc pro tunc relief.              Specifically, we hold that, in its

consideration       of    the    fourth     statutory      factor     under    § 3621(b)

(“any statement by the court that imposed the sentence”), the

BOP misapplied 18 U.S.C. § 3584(a). 4                   That is, in the face of the

federal sentencing judge’s silence as to the court’s intention,

the   BOP   invoked      a    presumption        that    the   unelaborated      federal

sentence     should      be   deemed   to    run    consecutively        to    the   later

imposed     state     sentence,     quoting        the    following      language     from

§ 3584(a): “Multiple terms of imprisonment imposed at different

      4   Section 3584(a) provides in pertinent part as follows:

      If multiple terms of imprisonment are imposed on a
      defendant at the same time, or if a term of
      imprisonment is imposed on a defendant who is already
      subject to an undischarged term of imprisonment, the
      terms may run concurrently or consecutively . . . .
      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.

18 U.S.C. § 3584(a).



                                             9
times run consecutively unless the court orders that the terms

are to run concurrently.”

        We conclude that the presumption relied on was inapplicable

because, as the Supreme Court has clarified,

     [t]he first subsection of [§ 3584(a)], which says when
     concurrent and consecutive sentences may be imposed,
     and specifies which of those dispositions will be
     assumed in the absence of indication by the sentencing
     judge   . . .    addresses  only   “multiple  terms   of
     imprisonment . . . imposed . . . at the same time” and
     “a term of imprisonment . . . imposed on a defendant
     who is already subject to an undischarged term of
     imprisonment.” Here the state sentence is not imposed
     at the same time as the federal sentence, and the
     defendant was not already subject to that state
     sentence     [at     the    time    of    the    federal
     sentencing]. . . .    [Accordingly,] § 3584(a) does not
     cover this situation.

Setser v. United States, 132 S. Ct. 1463, 1467 (2012) (second,

third, and fourth omissions in original) (quoting § 3584(a));

accord Abdul-Malik        v.   Hawk-Sawyer,    403    F.3d     72,      75   (2d   Cir.

2005); McCarthy v. Doe, 146 F.3d 118, 121 (2d Cir. 1998).                           But

see Romandine v. United States, 206 F.3d 731, 738 (7th Cir.

2000)    (rejecting   the      Second   Circuit’s     reading      of    § 3584(a)).

The circumstances     surrounding        Mangum’s     serial    convictions        and

sentencings    do   not    fall   within     either    of    the     two     scenarios

contemplated by the opening sentence of § 3584(a).                      Accordingly,

we are constrained to agree with Mangum’s assertion that the

federal sentencing judge’s silence does not and cannot give rise

to a statutory presumption that the federal sentence should be


                                        10
deemed intended as a consecutive sentence to the later imposed

state sentence.         We reject the government’s contention that the

plain language of § 3584(a) creates a presumption, in any and

all circumstances, that multiple terms of imprisonment will run

consecutively unless expressly stated otherwise.                       See McCarthy,

146 F.3d at 122 (“Although our reading of the statute is based

on    its   plain      language      and   common   sense,       we   note   that    the

legislative history of § 3584(a) confirms our interpretation.”);

id. (discussing legislative history).

       The clarity of the BOP’s error is made even more plain by a

second      compelling     consideration.           At    the     time    Mangum     was

sentenced in the North Carolina federal court in May 2007, a

federal district judge in this circuit was powerless to impose a

federal sentence to be served consecutively to a state sentence

that had not yet been imposed.               See United States v. Smith, 472

F.3d     222,    225     (4th     Cir.     2006)    (“The    plain       language     of

[§ 3584(a)] does not grant a district court authority to order

that its sentence run consecutively to a future sentence.”),

abrogated in part by Setser, 132 S. Ct. at 1466, as stated in

United States v. Obey, 790 F.3d 545, 549 (4th Cir. 2015).                          To be

sure, Setser later resolved a circuit split in holding that,

under § 3584(a), a district court “has authority to order that

the    federal   sentence       be    consecutive    to     an   anticipated       state

sentence that has not yet been imposed,” see 132 S. Ct. at 1466.

                                            11
Nonetheless,      we   are   confident    that   any   definition   of   an

arbitrary   and    capricious    determination    by   an   administrative

agency such as the BOP would include within it the agency’s

invocation of a presumed intention on the part of a federal

sentencing judge to do that which he was powerless to do under

binding circuit precedent at the time he imposed a sentence. 5           In

this case, one might reasonably expect the BOP to exercise its

discretion to weigh heavily what the state judge did say rather

than what the federal judge did not and could not say.

                                   III.

     For the reasons set forth, we affirm in part, vacate in

part, and remand.       Upon remand, the district court shall return

this matter to the BOP so that the agency may give plenary

consideration to Mangum’s request for nunc pro tunc designation

of the Oklahoma state facility as the place for service of his

federal sentence.        In considering the request, the BOP shall

invoke no presumption under 18 U.S.C. § 3584(a) and shall fully

evaluate all relevant factors under 18 U.S.C. § 3621(b) in a

fashion consistent with the views expressed in this opinion.

                                    AFFIRMED IN PART, VACATED IN PART,
                                        AND REMANDED WITH INSTRUCTIONS

     5  We   have   considered   the  government’s  supplemental
authority, United States v. Butler, Nos. 15-4201, 15-4205, 15-
4215, 2015 WL 7888398 (4th Cir. Dec. 4, 2015) (unpublished) (per
curiam), and we find nothing in that non-precedential case that
bears persuasively on the issues presented herein.


                                    12
