                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2000

Rios v Wiley
Precedential or Non-Precedential:

Docket 99-3297




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Filed January 4, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3297

FRANCISCO RIOS

v.

RON WILEY, Warden,
FPC-Allenwood
RON WILEY,    Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania

(D.C. Civ. No. 98-1507)

District Judge: Honorable William W. Caldwell
Argued November 1, 1999

BEFORE: GREENBERG, SCIRICA, and RENDELL,
Circuit Judges

(Filed: January 4, 2000)

David M. Barasch
United States Attorney
Kate L. Mershimer
Assistant United States Attorney
United States Attorney's Office
Middle District of Pennsylvania
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108-1754

Michael D. Tafelski (argued)
Federal Bureau of Prisons
2nd & Chestnut Streets
United States Customs House
7th Floor
Philadelphia, PA 19106

Attorneys for Appellant

Donald E. Cameron (argued)
Judith E. Stein
150 Nassau Street
Suite 1927
New York, NY 10038

Attorneys for Appellee
OPINION OF THE COURT

GREENBERG, Circuit Judge

I. INTRODUCTION

This matter comes before this court on an appeal from an
order granting a petition for a writ of habeas corpus.

Petitioner Francisco Rios filed his petition under 28 U.S.C.
S 2241 against respondent Ron Wiley, the warden of the

Federal Prison Camp at Allenwood, Pennsylvania ("FPC-

Allenwood").1 The sole issue on appeal is whether the

_________________________________________________________________



1. Rios was incarcerated at FPC Allenwood at the time the court decided

this case. He originally filed the petition in the Northern District of
New

York, but because of his place of incarceration the court transferred the

petition to the Middle District of Pennsylvania.



2




district court erroneously determined that Rios was entitled

to credit on his federal sentence for a period of 22 months

that he was in federal detention pursuant to a writ of

habeas corpus ad prosequendum prior to the imposition of

his federal sentence for narcotics violations. We will affirm

the order of the district court granting Rios's habeas corpus

petition and thus allowing him the relief he seeks, but we

reach our result on different grounds than those on which
the district court relied.



II. FACTS and PROCEEDINGS



State authorities arrested Rios on or about August 6,

1991, in New York and charged him with possession of

cocaine. He was found guilty of the state charges and on

November 7, 1991, the state court sentenced him tofive to

ten years imprisonment. On November 6, 1991, a federal

grand jury in the Southern District of New York indicted

him for narcotics offenses unrelated to the state charges.2

On November 21, 1991, federal authorities, pursuant to a

writ of habeas corpus ad prosequendum, took custody of

Rios for one day. On March 20, 1992, the federal

authorities, pursuant to a second writ of habeas corpus ad

_________________________________________________________________



While the named respondent in this matter is Ron Wiley, the warden

at FPC-Allenwood, the parties refer throughout their submissions to the

appellant as the Bureau of Prisons because the appeal involves a

sentencing calculation matter. We will adopt that designation of the

appellant for ease of reference.



2. In the district court's second opinion in this case, it indicated that
the

charges were unrelated, see Rios v. Wiley, 34 F. Supp.2d 265, 267 (M.D.

Pa. 1999), and the Bureau of Prisons has taken the same position. Rios

asserts, however, that they were related. We do not resolve that point on
this appeal. Moreover, there is conflicting evidence concerning the exact

date of Rios's arrest on the state charges. The Presentence Report ("PSR")

indicates that New York authorities arrested him on February 13, 1991,

but the declaration of Charles McIntyre, the inmate systems manager at

FPC-Allenwood, states the arrest date as August 6, 1991. The parties do

not explain the inconsistency, but it is not material to the disposition
of

the appeal. Finally, we note that while the court indicated that Rios was

indicted on November 6, 1991, the BOP indicates that the indictment

was one day earlier.



3




prosequendum, took custody of Rios again for a period

which proved to be extended and included the 22 months

at issue.



At a trial on the federal charges, the jury found Rios

guilty on June 17, 1992, of conspiracy to distribute heroin

and cocaine and distribution of and possession of heroin

with intent to distribute. The court scheduled sentencing

for September 15, 1992, but it was delayed until January

31, 1994. Prior to the sentencing hearing the government

sent a letter dated January 31, 1994, to the court

discussing the application of U.S.S.G. S 5G1.3(c), p.s.3 to

Rios's case. We will refer to that provision simply as
"section 5G1.3(c)." In its opening remarks at the sentencing

hearing, the court acknowledged receipt of the letter and

stated that its contents were "duly noted."



In the colloquy between counsel and the court during the

sentencing hearing, Rios's attorney asked the court to

consider, among other things, the fact that Rios had been

in federal custody pursuant to the second writ since March

1992. Specifically, he asked the court to "sentence Rios to

the minimum guideline applicable which is 84 months, and

to have that run concurrent with the time he is serving on

the state case." When the assistant United States attorney

stated that the "state conduct was not counted in

calculating the offense level in this case," Rios's attorney

interjected that he did not mean to imply that it had been.

Immediately thereafter, the court asked the government

attorney whether Rios, if given credit for time served, would

receive credit back to March 1992, the time of the execution

of the second writ by the federal authorities. The

government attorney answered that crediting was a

technical matter, and that he could not respond to the

question at that time. The court replied that the answer

was not material and it proceeded to sentence Rios.

_________________________________________________________________



3. "Section 5G1.3(c) is labeled a `Policy Statement'; we note that `[t]he

policy statements and commentary contained in the guidelines are
binding on the federal courts.' " United States v. Brannan, 74 F.3d 448,

454 n.7 (3d Cir. 1996) (quoting United States v. Holifield, 53 F.3d 11, 13

n.2 (3d Cir. 1995)).



4




The sentencing court sentenced Rios "to a term of 90

months on both counts to run concurrently with each other

and concurrently with the state sentence and that you

receive credit for time served." The court, however, did not

indicate what period of "time served" should be applied to

the federal sentence. Moreover, the judgment entered

merely recited: "Defendant to receive credit for time served."

The government did not seek clarification or modification of

the sentence, nor did it appeal from it.



The federal authorities returned Rios to New York state

custody on February 18, 1994. Thus, it is undisputed that

Rios remained in the control of the federal authorities from

the time of the execution of the second writ on March 20,

1992, until February 18, 1994. It is also undisputed that

he previously had been sentenced in state court on

November 7, 1991, and that he was serving his state

sentence while in the federal custody pursuant to the

second writ.
Shortly after the federal authorities returned Rios to state

custody, the Bureau of Prisons ("BOP") designated the New

York State Department of Correctional Services for service

of his federal sentence. It made this designation nunc pro

tunc as of January 31, 1994, the date of the federal

sentencing. By specifying the federal sentence to have

commenced on January 31, 1994, the BOP did not credit

Rios for the 22-month time period he spent under federal

control pursuant to the second writ before January 31,

1994, despite the sentencing court's statement at the

sentencing and its direction in the judgment of conviction

and sentence that credit be awarded for "time served."



New York released Rios on parole from his state sentence

on August 2, 1996, and the BOP received Rios for service

of the remainder of his federal sentence. Upon his transfer

to federal custody, Rios learned that the BOP had not

credited the time between March 20, 1992, the date he was

detained by federal authorities by virtue of the second writ,

and January 31, 1994, the date of his federal sentencing.

Rios filed an administrative remedy request at his place of

incarceration at the time, the Federal Corrections

Institution at Ray Brook, New York ("FCI Ray Brook"),



5
challenging the BOP's failure to credit that 22-month period

against his federal sentence.



Warden W.S. Keller of FCI Ray Brook denied Rios's

request on November 25, 1996. Rios exhausted his

administrative remedies and subsequently filed his habeas

corpus petition. The petition reiterated Rios's challenge of

the BOP's refusal to credit his federal sentence for time

served while in federal detention pursuant to the second

writ. At the time Rios filed his habeas corpus petition,

applying the BOP's crediting calculations, his projected

release date was August 12, 2000.4 Rios contended that his

release date should have been September 30, 1998.



The district court granted Rios's habeas corpus petition

in a memorandum and order entered December 9, 1998.

See Rios v. Wiley, 29 F. Supp.2d 232 (M.D. Pa. 1998) ("Rios

I"). While the district court believed that the literal language

of 18 U.S.C. S 3585(b), which we will call simply "section

3585(b)," appeared to preclude granting the credit Rios

sought, it nevertheless concluded that he was entitled to

credit on his federal sentence for the 22-month period that

he remained in federal control under the second writ to

"effectuate[ ] the intent of the federal sentencing court." Rios

I, 29 F. Supp.2d at 236. The district court relied on the

reasoning of the Court of Appeals for the First Circuit in

United States v. Benefield, 942 F.2d 60 (1st Cir. 1991), in
support of its result. See Rios I, 29 F. Supp.2d at 234.

Consequently, the court ordered the BOP to recalculate

Rios's release date, and stated that if the new calculation

entitled him to immediate release, he was to be released.



The BOP subsequently filed a motion for reconsideration,

which the district court denied by memorandum and order

entered February 3, 1999. See Rios v. Wiley, 34 F. Supp.2d

265 (M.D. Pa. 1999) ("Rios II"). Upon reconsideration, the

court retreated from its prior position that Benefield

_________________________________________________________________



4. We note that the district court originally stated that the projected

release date was February 12, 2000, see Rios v. Wiley, 29 F. Supp.2d

232, 233 (M.D. Pa. 1998), but in a second opinion it issued on the BOP's

motion for reconsideration, it indicated the date was August 12, 2000.

See Rios v. Wiley, 34 F. Supp.2d at 266. We are satisfied that the second

date is correct. See app. at 75.



6




provided the applicable rule of law in this case. Instead, the

district court granted the petition based on the reasoning of

the Court of Appeals for the Tenth Circuit in Brown v.

Perrill ("Brown II"), 28 F.3d 1073 (10th Cir. 1994),

supplementing and clarifying Brown v. Perrill ("Brown I"),
21 F.3d 1008 (10th Cir. 1994). In Brown, a case that

involved facts that the district court regarded as"materially

identical" to those here, see Rios II, 34 F. Supp.2d at 270,

the court held that the lengthy period the prisoner spent in

custody on the writ transmuted the period into federal

custody. See Brown II, 28 F.3d at 1075. Because it was

undisputed that if the 22-month period was applied on the

federal sentence, Rios was entitled to immediate release,

the court ordered his release from federal custody.



The BOP filed a timely notice of appeal. While the notice

of appeal recites that it is from the February 3, 1999 order,

effectively the appeal is from the order granting the habeas

corpus petition as well and we are deciding the case on that

basis.



III. JURISDICTION and STANDARD OF REVIEW



The district court exercised jurisdiction over this matter

pursuant to 28 U.S.C. SS 1331 and 2241. We have

jurisdiction over this appeal pursuant to 28 U.S.C.SS 1291

and 2253(a), as the BOP filed a timely notice of appeal from

the final judgment of the district court entered February 3,

1999.5



In a federal habeas corpus proceeding, we exercise

plenary review over the district court's legal conclusions
and apply a clearly erroneous standard to the court's

factual findings. See Lambert v. Blackwell, 134 F.3d 506,

512 (3d Cir. 1997) (citing Caswell v. Ryan, 953 F.2d 853,

857 (3d Cir. 1992) (citing Bond v. Fulcomer, 864 F.2d 306,

309 (3d Cir. 1989))); see also United States v. Dorsey, 166

F.3d 558, 560 (3d Cir. 1999) ("Our review of the district

_________________________________________________________________



5. Because the government has taken the appeal in this proceeding, a

certificate of appealability is not required as a prerequisite to our

exercise of appellate jurisdiction. See Fed. R. App. P. 22; Lambert v.

Blackwell, 134 F.3d 506, 512 n.15 (3d Cir. 1997).



7




court's interpretation of S 3585(b) and the[sentencing]

guidelines is plenary."); Barden v. Keohane, 921 F.2d 476,

479 (3d Cir. 1992) (stating that court of appeals exercises

plenary review over district court's legal conclusions which

formed the basis of the lower court's denial of the habeas

corpus petition). In this case, however, the issues are

essentially legal in nature and thus we exercise plenary

review.



IV. DISCUSSION
A.



The BOP argues that the district court erred in granting

Rios's habeas corpus petition, as it failed to recognize that

the general principles governing the computation of a

federal sentence prohibit an inmate from receiving credit on

a federal sentence for pre-sentence detention where the

same time was credited against a previously imposed state

sentence. Br. at 13-17. In particular, the BOP points to

section 3585(b) as the governing statute in this appeal, and

contends that its plain language states that a defendant

may receive credit for prior custody "that has not been

credited against another sentence." Id. at 17.



This appeal requires us to explore once again the

interplay between the roles of the sentencing court in

determining the length of a sentence of incarceration to be

served and the BOP in calculating when the sentence

imposed will have been satisfied. See, e.g. , Dorsey, 166

F.3d at 561-63 (interpreting sentencing court's power to

award concurrent sentence pursuant to U.S.S.G. S 5G1.3(b)

and Application Note 2 as not conflicting with BOP's

authority under section 3585(b) to award prior custody

credit). The Sentencing Reform Act of 1984 (the"Act"), 18

U.S.C. S 3551 et seq., 28 U.S.C. S 991-998, along with the

Sentencing Guidelines ("U.S.S.G." or "guidelines")

promulgated pursuant to the Act, contain several provisions
relevant to our resolution of the issue presented by this

appeal.



We will begin our analysis by setting forth the relevant

statutory provisions and guidelines governing the



8




sentencing court's determination of the length of the

sentence to be imposed where the defendant is subject to

an undischarged term of imprisonment. 18 U.S.C. S 3584

states in pertinent part:



Multiple sentences of imprisonment.



(a) Imposition of concurrent or consecutive terms.--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, except that the terms may not run

consecutively for an attempt and for another offense

that was the sole objective of the attempt. 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.



(b) Factors to be considered in imposing concurren t or

consecutive terms.--The court, in determining whether

the terms imposed are to be ordered to run

concurrently or consecutively, shall consider, as to

each offense for which a term of imprisonment is being

imposed, the factors set forth in [18 U.S.C.S ] 3553(a).



Id. While section 3584 enables the sentencing court to

award a concurrent sentence, that discretion is subject to

the applicable guidelines section, namely U.S.S.G.S 5G1.3.

See Dorsey, 166 F.3d at 561-62; United States v. Holifield,

53 F.3d 11, 13 (3d Cir. 1995); see also 28 U.S.C.

S 994(a)(1)(D) (imposing statutory duty upon Sentencing

Commission to include in guidelines "a determination

whether multiple sentences to terms of imprisonment

should be ordered to run concurrently or consecutively").



The version of U.S.S.G. S 5G1.3 in effect at the time of

Rios's sentencing on January 31, 1994, contains three

subsections. See U.S.S.G. S 5G1.3 (Nov. 1993).6 Subsection

_________________________________________________________________
6. We will apply the version of section 5G1.3(c) and Application Note 3 in

effect on the date of Rios's sentencing. See U.S.S.G. S 1B1.11; Brannan,



9




(a) of the guideline describes circumstances in which

imposition of a consecutive sentence is mandatory:



If the instant offense was committed while the

defendant was serving a term of imprisonment

(including work release, furlough, or escape status) or

after sentencing for, but before commencing service of,

such term of imprisonment, the sentence for the

instant offense shall be imposed to run consecutively

to the undischarged term of imprisonment.



U.S.S.G. S 5G1.3(a). Subsection (b) provides the

circumstances in which a concurrent sentence is

mandatory:



If subsection (a) does not apply, and 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.



U.S.S.G. S 5G1.3(b). For cases in which neither (a) nor (b)

applies, the Sentencing Commission has issued section

5G1.3(c), which is a policy statement to guide the courts:



(Policy Statement) In any other case, the sentence for

the instant offense shall be imposed to run

consecutively to the prior undischarged term of

imprisonment to the extent necessary to achieve a

reasonable incremental punishment for the instant

offense.



See also United States v. Brannan, 74 F.3d 448, 454 n.7

(3d Cir. 1996).



The Act also addressed the related but distinct issue of

the award of credit on a federal sentence for pre-sentence

_________________________________________________________________



74 F.3d at 450 n.2 (noting that court should apply guideline provision in

effect at the time of sentencing unless the court determines that to do so

would violate the Ex Post Facto Clause of the United States Constitution

in that it would yield a harsher result than that in effect at the time of

the offense).



10
incarceration. Pursuant to the Act, Congress rewrote 18

U.S.C. S 3568 ("section 3568"), the prior statute governing

the award of credit for pre-federal sentence incarceration,

and recodified it as section 3585(b). Section 3585(b)

(emphasis added) provides in relevant part:



Calculation of a term of imprisonment



(b) Credit for prior custody.--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 sente nce

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.



As the district court and the parties have framed the

legal issue presented in this case, the controversy concerns

the correct interpretation of the last clause of section
3585(b) and its application to the 22-month period of Rios's

detention by federal authorities pursuant to the second

writ. We do not view the issue that narrowly. Rather, in

exercising plenary review of the issues of law Rios's petition

raised under 28 U.S.C. S 2241, we find that the appropriate

starting point is to ascertain the meaning that we should

ascribe to the sentencing court's directives that the federal

and state sentences be served concurrently and that Rios

be given credit for time served. Indeed, it is apparent to us

that the district court's disposition of the matter as though

governed by section 3585(b) overlooked the possibility that

the sentencing court's directives related to its power to

impose a sentence in accordance with the applicable

guidelines provision, section 5G1.3(c) that we quoted above.7

_________________________________________________________________



7. There can be no dispute that sections 5G1.3(a) and (b) do not apply

to this case. We repeat that section 5G1.3(a) sets forth the situations in

which a consecutive sentence is mandatory, and the BOP does not

contend on appeal that that provision applies. Moreover, the government

and Rios's attorney at the time of the sentencing believed that section



11




We reiterate that section 5G1.3(c) provides that the

federal sentence should "be imposed to run consecutively to
the prior undischarged term of imprisonment to the extent

necessary to achieve a reasonable incremental punishment

for the crime." Application Note 3 sets forth a methodology

for the court to follow in determining what amounts to a

"reasonable incremental punishment" for the crime. It

provides that:



To the extent practicable, the court should consider a

reasonable incremental penalty to be a sentence for the

instant offense that results in a combined sentence of

imprisonment that approximates the total punishment

that would have been imposed under S 5G1.2

(Sentencing on Multiple Counts of Conviction) had all

of the offenses been federal offenses for which

sentences were being imposed at the same time.



Section 5G1.3(c) comment. (n.3). This methodology"is

meant to assist the court in determining the appropriate

sentence (e.g., the appropriate point within the applicable

guideline range, whether to order the sentence to run

concurrently or consecutively to the undischarged term of

imprisonment, or whether a departure is warranted)." Id.

comment. (n.3). Once the court applies the methodology set

forth in Application Note 3 and approaches the sentencing

as if sentences on both offenses were being imposed at

once, the court must determine what incremental

punishment is appropriate in view of the sentence that
would have resulted under U.S.S.G. S 5G1.2. See Brannan,

74 F.3d at 454-55.8

_________________________________________________________________



5G1.3(b) did not apply, as the conduct involved in the state charge was

not considered "relevant conduct" for purposes of determining Rios's

federal offense level. App. at 46-47; see United States v. Oser, 107 F.3d

1080, 1085 (3d Cir. 1997). Thus, section 5G1.3(c) provides the

applicable guidelines provision in the circumstances here. Id. at 1086

("Inasmuch as we conclude that subsection (b) does not apply . . . it

follows that subsection (c) is the relevant guideline provision for

determining whether [the defendant's] sentence should be imposed

concurrently or consecutively.").



8. We understand section 5G1.3(c) to permit a district court to exercise

its discretion and award a concurrent sentence in a manner that would



12




Upon inspection of the sentencing transcript as well as

the judgment the sentencing court entered on January 31,

1994, we are convinced that the sentencing court applied

section 5G1.3(c) in its form as of the date of Rios's

sentencing to impose a reduced federal sentence that, in its

view, achieved "a reasonable incremental punishment" for

the federal narcotics offenses, given the circumstance that
Rios already had served 22 months on an unrelated state

conviction at a time that he was in federal custody. See

section 5G1.3(c). In other words, we understand the

sentencing court to have exercised its discretion to impose

a federal sentence under section 5G1.3(c) which took into

consideration the 22 months that Rios had spent in federal

custody as of the date of the federal sentencing proceeding,

January 31, 1994, so that the actual sentence imposed was

_________________________________________________________________



ensure that the federal sentence, while imposed at a later time, took into

account prior time served on an unrelated state sentence. See Brannan,

74 F.3d at 455 (stating that district court could have departed from

guidelines range and awarded sentence that took into account prior time

served on state sentence); United States v. Hill , 59 F.3d 500, 503 (4th

Cir. 1995) (same); see also United States v. Goudy, 78 F.3d 309, 314 n.4

(7th Cir. 1996) (citing U.S.S.G. App. C, amend. 535). In Brannan, we

explained the mechanics of applying the methodology set forth in

Application Note 3 to achieve the result reached in this case. First, the

court must determine hypothetically what the sentence for the federal

and state offenses would have been if sentenced together under U.S.S.G.

S 5G1.2. The court could conclude then that no incremental penalty was

warranted and therefore a concurrent federal sentence was called for

under the circumstances. To achieve that result, the court could depart

from the guidelines range by taking into consideration the time served

on the prior state sentence and subtracting that amount from the overall

federal sentence imposed. Thus, the court would sentence the offender
with a lower term of imprisonment to run concurrently with the

remaining undischarged term, and consecutively thereafter (if the federal

sentence imposed was longer than the state sentence would be even

after the pre-federal sentence incarceration was considered). See

Brannan, 74 F.3d at 455; Holifield, 50 F.3d at 14 n.5 ("Occasionally a

downward departure may be necessary to make this provision work

properly. For example, where the defendant has been in state custody for

a long time, a downward departure may be the only feasible way to

achieve an appropriate total punishment, assuming the court wishes to

employ a departure to achieve the desired objective."); Hill, 59 F.3d at

503.



13




90 months, less 22 months, or 68 months total. The

sentencing court also indicated that the sentence imposed

was to run concurrently with the state sentence, with the

balance, if any, of the federal sentence to be served

thereafter. From that initial conclusion, we hold that the

BOP was required to effectuate the sentence imposed by the

sentencing court, and consequently that Rios is entitled to

relief under 28 U.S.C. S 2241 so that his sentence reflects

an adjustment for the 22-month period in issue.



A review of the result produced in this case by the use of

the methodology set forth in Application Note 3 supports
our conclusion that the sentencing court applied section

5G1.3(c) in imposing the period of imprisonment on the

federal conviction. First, the court would have considered

the guideline range for the federal offenses and the

guideline range that would have resulted if the sentences

for the state and federal offenses were being imposed at the

same time in the same federal sentencing proceeding. Here,

as the government's January 31, 1994 letter to the

sentencing court indicates, Rios's actual offense level was

18, and the combined offense level would have been 18 had

the state conduct been considered part of the federal

offense conduct. Thus, because of the small quantity of

narcotics involved in the state offense, consideration of that

quantity in the hypothetical federal sentencing under

U.S.S.G. S 5G1.2 would not have changed the offense level.

App. at 79; see also U.S.S.G. SS 5G1.2; 2D1.1(a)(3), (c)(13);

3D1.1; 3D1.2; 3D1.3; 3D1.4. Accordingly, the sentencing

court was faced with a rather anomalous situation because

if the hypothetical sentencing had been the real sentencing,

the guideline range, 84 to 105 months, insofar as it was

dependent on the quantity of narcotics involved, would

have been the same as the actual range used by the

sentencing court. See U.S.S.G. Sentencing Table, Level 22,

Category VI; app. at 53.9



Therefore, if the sentences on the federal and state

offenses had been imposed at the same time and in the
same proceeding, absent a departure Rios would have been

subject to a combined sentence within the same guidelines

_________________________________________________________________



9. By reason of adjustments Rios's total offense level was 22.



14




range as was actually applicable at the sentencing. In that

event, if punishment for the state and federal offenses had

been imposed as one sentence in the same federal

sentencing proceeding, Rios could have received the same

period of incarceration, and obviously that single sentence

would have commenced as of the date of sentencing (or at

least as of the date that the BOP transported Rios to a

federal institution to commence service of his sentence).



In other words, if a single sentence for the two offenses

had been imposed at the same time and in the same federal

sentencing proceeding, there would have been no need to

consider whether to award "credit," as the sentencing court

used that term, because Rios would not have been serving

an undischarged term of imprisonment as of the date of the

federal sentencing proceeding. Inasmuch as Application

Note 3 specifically states that the methodology is"meant to

assist the court in determining the appropriate sentence,"
from a review of all the circumstances of the case we have

reached the conclusion that the sentencing court viewed

Rios's particular history as requiring an adjustment of the

federal sentence to account for the disparity caused by the

timing of the imposition of two separate sentences. See

Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199,

2208-09 (1995) ("[Section] 5G1.3 operates to mitigate the

possibility that the fortuity of two separate prosecutions will

grossly increase a defendant's sentence."); Dorsey, 166 F.3d

at 562 (" `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.' ") (quoting

United States v. Kiefer, 20 F.3d 874, 875-76 (8th Cir. 1994))

(quoting section 5G1.3, comment. (backg'd.)); Holifield, 50

F.3d at 15 ("It is important to note the methodology of

S 5G1.3 vests discretion in the trial judge. .. . [A] downward

departure may be desirable when the increase is simply

because of a delay in the defendant's trial or sentencing.").



We believe that the sentencing court intended to correct

the disparity that resulted from the happenstance of the

dates of the federal and state sentencing proceedings by

sentencing Rios to 90 months, less 22 months, to reach an

adjusted sentence of 68 months, which would then be



15
served concurrently with the remainder of the state

sentence. Indeed, it appears to us that the sentencing court

expressed its intention to depart from the guideline range,

84 to 105 months, and award the 22-month reduction in

the federal sentence by indicating that Rios was to receive

"credit for time served."



We note that the colloquy between the court and counsel

at sentencing confirms our understanding of the sentencing

court's intention in using the words "credit for time served"

in conjunction with the statement of the term of

imprisonment as "90 months." Specifically, Rios's attorney

pointed out that he had "suffered to a tremendous degree"

by virtue of the time he already had spent incarcerated and

asked the court to "consider that in determining his

sentence." App. at 44-45. Almost immediately after these

statements, the court asked the government about the time

that Rios spent in pre-sentence detention. The following

exchange occurred:



THE COURT: So that if Mr. Rios is given credit for time

served he would get credit from March `92 to date?



MR. CLEVELAND: That is a technical matter that I may

not be able to offer guidance on, as to how the
crediting is done. I can make an inquiry if it would be

helpful.



THE COURT: It won't be material. I just thought--



App. at 47. At this point, the court pronounced its sentence

of 90 months on both federal counts to run concurrently

with each other and concurrently with the state sentence,

and ordered that Rios receive "credit for time served." App.

at 47-48.



The juxtaposition of the actual words used in

pronouncing the sentence and the discussion between the

attorneys on the one hand and the court on the other

demonstrates that the sentencing court was cognizant of

the time Rios had spent in pre-sentence incarceration, and

further that Rios sought consideration for that time from

the court in its determination of the sentence to be

imposed. Thus, the sentencing court had before it sufficient

information upon which it could have concluded that



16




section 5G1.3(c) applied and permitted it to impose the

sentence that it did.
Moreover, inasmuch as the sentencing court "duly noted"

the contents of the government's January 31, 1994 letter

during the sentencing hearing, app. at 43, it cannot be

disputed that the court was aware of the applicability of

section 5G1.3(c). Indeed, the government's letter contained

its calculation of the combined offense level for the total

amount of narcotics involved in the state and federal

offenses, which is a significant aspect of the calculation

required by the methodology prescribed in Application Note

3 to section 5G1.3(c). See section 5G1.3(c) comment. (n.3)

(directing the court to calculate hypothetical sentence as if

it were sentencing under U.S.S.G. S 5G1.2; section 5G1.2

then directs court to calculate combined sentence under

Chapter 3, Part D and Part C of Chapter 5).



We reach our conclusion concerning the meaning of the

sentencing court's words used to describe the components

of its sentence despite the fact that it did not cite expressly

section 5G1.3(c) or Application Note 3 at the sentencing

hearing. After all, the Court of Appeals for the Second

Circuit has held that a district court need not refer

explicitly to section 5G1.3(c) in sentencing a defendant,

provided that the circumstances indicate that the court

considered "the basic principle that a consecutive sentence

should be imposed to the extent that it will result in a

reasonable incremental penalty." See United States v.

Margiotti, 85 F.3d 100, 105 (2d Cir. 1996) ("Section
5G1.3(c) simply does not require the use of any particular

verbal formula or incantation.") (citing United States v.

McCormick, 58 F.3d 874, 878 (2d Cir. 1995)); see also

McCormick, 58 F.3d at 878 (affirming sentence where

district court did not perform calculation under section

5G1.3(c) on the record, but computation was before the

court in the parties' written submissions); United States v.

Lagatta, 50 F.3d 125, 128 (2d Cir. 1995) ("[T]he

commentary [does not] require that the district court

expressly demonstrate that it engaged in the multi-count

analysis."). Without addressing whether the sentencing

court should have expressed its intentions differently, it is

apparent that the sentencing court used the language it



17




did, "concurrently" and "credit for time served," to indicate

its exercise of discretion under section 5G1.3(c) and

Application Note 3.10



As the Court of Appeals for the First Circuit observed in

similar circumstances,



District judges normally deliver their decisions on

sentencing from the bench, just after, and sometimes

in the course of, the presentation of numerous
arguments and even evidence as to the permissible

range and proper sentence. These often spontaneous

remarks are addressed primarily to the case at hand

and are unlikely to be a perfect or complete statement

of all of the surrounding law. What the district judge

said here was entirely adequate as directed to the

present case.



United States v. Saldana, 109 F.3d 100, 104 (1st Cir.

1997). Neither precedent nor logic dictates that Rios serve

an additional 22 months on his federal sentence simply

because the court did not state explicitly its reliance on

section 5G1.3(c) and Application Note 3, given the overall

context in which the court imposed the sentence and the

information before the court at that time.11



In reaching our conclusion, we have considered but

_________________________________________________________________



10. Again, we note that the government did not appeal from the

sentence, nor did it seek its reconsideration or clarification.



11. We held in Holifield that the district court must calculate the

reasonable incremental punishment according to the methodology in

Application Note 3 to section 5G1.3(c), but that the imposition of that

penalty is within the court's discretion. See Holifield, 50 F.3d at 16.
If,

however, the district court imposes a different penalty or employs a
different method of calculating the penalty, it must indicate its reasons

for not utilizing the methodology. Id. Our ruling in this case in no way

is inconsistent with Holifield, as we are not confronted with a situation

where we are considering on direct appeal a contention that the district

court departed from section 5G1.3(c) and Application Note 3 without

stating its reasons for doing so. Instead, our reading of the sentencing

court's opinion is that it applied Application Note 3 to arrive at what it

believed to be a reasonable incremental punishment for the federal

offenses, without specifically citing section 5G1.3(c) or Application Note

3 in rendering its sentence.



18




rejected the BOP's arguments on this point. It contends

first that the sentencing court's reference to the award of

"credit for time served" should be considered as nothing

more than a direction or non-binding recommendation to

the BOP to award pre-sentence credit that it deemed

appropriate. Br. at 22-23; app. at 48, 51; see United States

v. Pineyro, 112 F.3d 43, 46 (2d Cir. 1997) (order appealed

from was only a non-binding recommendation that BOP not

credit prisoner with time he spent in state custody, but

recommendation was not contained in district court's

judgment of conviction and sentence). Alternatively, the

BOP asserts that the portion of the judgment directing that

Rios receive credit for time served should be considered
"surplusage and ineffective" because it usurps the authority

granted to the BOP to determine pre-sentence credit. Reply

Br. at 7 n.2.



As to the first contention, we believe that we must view

the sentencing court's language in the context of the overall

proceeding. Given the fact that the government raised the

concept of a concurrent sentence in the January 31, 1994

letter, and that Rios's attorney at the sentencing hearing

did so as well, the court's reference to "credit for time

served," while ambiguous, was not, as the government

suggests, merely a non-binding direction or

recommendation to the BOP to award credit under section

3585(b) that the BOP deemed appropriate. We recognize

that the term "credit" is used in Chapter 227 of Title 18 as

a "term of art" to describe a potential benefit allowed a

defendant by the BOP in its role as the agency charged with

determining when the federal sentence imposed by the

sentencing court is satisfied. See Dorsey, 166 F.3d at 564-

65 (Stapleton, J., concurring). In this case, however, it

appears that the sentencing court simply used that term of

art slightly imprecisely, which, as the circumstances in

Dorsey reveal, cannot be considered an unprecedented

occurrence. See id. (Stapleton, J., concurring) ("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.").



19




It cannot be argued successfully that the use of the

phrase "credit for time served" by the sentencing judge only

can be interpreted to mean that the court directed the BOP

to do what it is statutorily required to do, nor can it be

viewed in this context as a non-binding recommendation.

This is especially so in view of the fact that under the plain

language of section 3585(b), which we will explore in

greater detail below in Part B of this section, the BOP would

not be required to award Rios with credit on his federal

sentence for the 22-month period at issue. In these

circumstances, if we adopted the BOP's interpretation, the

sentencing court's direction or non-binding

recommendation would have been of little significance or

more likely would have been totally meaningless.



We find equally without merit the BOP's alternative

argument that we should disregard the sentencing court's

provision for "credit for time served" as mere"surplusage

and ineffective." Reply Br. at 7 n.2; app. at 51. The BOP

premises its assertion in this regard on its belief that the

sentencing court's use of that phrase was an attempt to
award sentencing credit under section 3585(b) in violation

of the Supreme Court's holding in United States v. Wilson,

503 U.S. 329, 112 S.Ct. 1351 (1992). There the Supreme

Court held that the Attorney General (by way of delegation

to the BOP) rather than the sentencing court has the

authority to award credit to a federal prisoner for time

served before federal sentencing pursuant to section

3585(b). See id. at 334-35, 112 S.Ct. at 1354-55.



The problem with the BOP's interpretation, however, is

that it does not account for our alternative interpretation of

the district court's imposition of a 90-month sentence in

conjunction with its use of the phrase "credit for time

served." As we explained above, the use of the two phrases

in combination expresses the sentencing court's intention

to impose an adjusted federal sentence under section

5G1.3(c) that was to be served concurrently with the

remainder of the unexpired state sentence. As is evident

from our prior discussion, we find that the sentencing court

interpreted section 5G1.3(c) and Application Note 3 as

permitting it to impose such a sentence, and that the

language it used effectuated the court's intent in that



20




regard. Thus, because the BOP's argument hinges on its
interpretation of the language as an award of credit under

section 3585(b), rather than an application of section

5G1.3(c) and Application Note 3, we reject its argument

that the credit for time served language is "surplusage and

ineffective."



Moreover, the BOP's argument fails in light of our opinion

in Dorsey which recognized that neither the enactment of

section 3585(b) nor the Supreme Court's ruling in Wilson

limited the sentencing court's authority to apply section

5G1.3 and impose a concurrent sentence to the extent

appropriate. See Dorsey, 166 F.3d at 561 (noting that

Wilson did not apply 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 [to U.S.S.G.

S 5G1.3(b)]"); see also Kiefer, 20 F.3d at 876 ("[W]e 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.").



While Dorsey involved a challenge to the validity of

Application Note 2 and section 5G1.3(b), the same rationale

applies to the court's exercise of discretion to impose a

concurrent sentence under section 5G1.3(c) and Application

Note 3. To be sure, an application of section 5G1.3(b) or (c)
and the commentary by the sentencing court, and the

award of sentencing credit by the BOP under section

3585(b), may result in the same benefit to the defendant.

Nevertheless, that the same outcome may be obtained

either way does not alter the fact that the two benefits

bestowed are distinct, and the Supreme Court's opinion in

Wilson only meant to refer to the award of sentencing credit

under section 3585(b) when it determined that the power to

award that credit was entrusted exclusively to the BOP. See

Dorsey, 166 F.3d at 564-65 (Stapleton, J., concurring) ("We

agree with the Eighth and Ninth Circuits Courts of Appeal

that the Supreme Court in Wilson was referring to the latter

form of benefit [an award of sentencing credit under section

3585(b)] when it held that only the [BOP] is authorized . . .

to `give credit' against a previously imposed sentence.").



21




We therefore reject the BOP's argument that we should

view the "credit for time served" portion of the judgment as

"surplusage and ineffective" because the argument rests on

the faulty premise that the sentencing court intended to

award credit under section 3585(b). Because we have

determined that the language "credit for time served"

demonstrates the sentencing court's intention to fashion an

appropriate sentence under section 5G1.3(c) and
Application Note 3 by considering the 22 months served as

part of the federal sentence, which we consider distinct

from credit under section 3585(b), we conclude that the

BOP's position is incorrect. See United States v. Drake, 49

F.3d 1438, 1440 (9th Cir. 1995) ("As the Court in Wilson

explained, `[a]fter a District Court sentences a federal

offender, the Attorney General, through the Bureau of

Prisons, has the responsibility for administering the

sentence.' . . . Such language presumes that the district

court will first sentence the offender--applying the relevant

Sentencing Guidelines--before credit determinations shall

be made by the Bureau of Prisons.") (citation omitted).



We hold that the BOP's failure to implement the sentence

imposed by the sentencing court mandates habeas corpus

relief under section 2241. See United States v. Williams,

158 F.3d 736, 742 (3d Cir. 1998) (finding without merit

federal defendant's motion pursuant to 28 U.S.C.S 2255

based upon his belief that the BOP would not honor district

court's sentencing order and stating that "in the unlikely

circumstance that the [BOP] does not honor the district

court's intention, [petitioner] will be free to seek relief under

28 U.S.C. S 2241"); see also Gomori v. Arnold, 533 F.2d

871, 874-75 (3d Cir. 1976) (holding that where prisoner

seeking federal habeas corpus relief challenges effect of

events "subsequent" to his sentence, habeas corpus remedy

is appropriate rather than motion pursuant to 28 U.S.C.
S 2255). Although our analysis of the legal issues the

petition has raised differs from that of the district court, we

ultimately agree with its original conclusion in Rios I that

allowing the 22-month adjustment effectuates the intent of

the sentencing court. Thus, we will affirm the district

court's order granting the petition and its direction to the

BOP to credit Rios with the 22 months he spent in



22




detention prior to the imposition of sentence on his federal

convictions.



B.



Notwithstanding our affirmance of the district court's

orders granting Rios habeas corpus relief, inasmuch as it

appears that the district court's application of section

3585(b) raises an issue of first impression in this circuit, we

will address its interpretation of that provision. In both of

its opinions, the district court essentially carved an

exception to the plain language of section 3585(b) so as to

award Rios a 22-month credit against his federal sentence,

so that his sentence was, in effect 68 months. In its original

memorandum and order, the district court relied on the

Court of Appeals for the First Circuit's decision in Benefield
as espousing the correct approach in determining if pre-

sentence credit under section 3585(b) is warranted even in

circumstances indicating that credit already had been

awarded against another sentence. See Rios I, 29 F.

Supp.2d at 235 (citing Benefield, 942 F.2d at 66-67). In its

second memorandum and order, it retreated from its

reliance on Benefield, explaining that it had been under the

impression originally that Rios's state and federal offenses

were related such that there was a basis for the application

of U.S.S.G. S 5G1.3(b). See Rios II, 34 F. Supp.2d at 269.12

But because the district court on reconsideration

recognized that the sentencing court did not apply section

5G1.3(b) or its concept in awarding concurrent sentences

with "credit for time served," the district court found that

the reasoning in Benefield did not apply. See id.



The district court nonetheless found that under the

Court of Appeals for the Tenth Circuit's reasoning in Brown

II, the length of Rios's pre-sentence custody required a

departure from the general rule prohibiting credit on a

federal sentence for time spent serving a state sentence.

See id. at 269-70 (citing Brown II, 28 F.3d at 1075). In this

appeal, the BOP argues that the district court's analysis of

the crediting issue was incorrect in both opinions, and it

contends specifically that the general rule prohibiting

_________________________________________________________________
12. Rios asserts that they were related. See note 2, supra.



23




double credit should apply in this case. Accordingly, in its

view the 22-month time period at issue should not be

credited against Rios's federal sentence under section

3585(b).



The BOP's position is premised on the plain language of

the last clause of section 3585(b). As we previously

mentioned, section 3585(b) (emphasis added) provides:



(b) Credit for prior custody.--A defendant shall be given

credit toward the service of a term of imprisonment for

any time 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.
The courts have construed the last clause of section

3585(b) as limiting an award of credit for time served prior

to the imposition of a federal sentence under section

3585(b) to instances where the time period was not spent in

service of a previously imposed sentence and thus had not

been credited against that earlier sentence. In other words,

the majority of courts addressing this issue have

determined that section 3585(b) generally prohibits an

award of "double credit." See, e.g., Chambers v. Holland,

920 F. Supp. 618, 623 (M.D. Pa.) ("The relief which

petitioner seeks, i.e., to be given credit on his federal

sentence for time served on [an ad prosequendum] writ

issued by the federal court while he remained in the

primary custody of the state, is inconsistent with federal

law. Section 3585 does not permit credit on a federal

sentence for time served and credited against another

sentence."), aff 'd, 100 F.3d 946 (3d Cir. 1996) (table); see

also United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir.

1998) (noting that a defendant has no right to credit on his

federal sentence for time that has been credited against his

prior state sentence); United States v. Kramer, 12 F.3d 130,

132 (8th Cir. 1994) (holding that the BOP "properly decided



24
not to award [the petitioner] credit for the time served, as

it would have contravened the proscription in 18 U.S.C.

S 3585(b) against double crediting"; court explained that

"[t]he record shows that [the petitioner] received credit

toward his state sentence for that same time period");

United States v. Dennis, 926 F.2d 768, 769 (8th Cir. 1991)

(reaching same conclusion); Arashi v. United States, No. 94-

7603, 1995 WL 453308, at *10 n.3 (S.D.N.Y. July 31, 1995)

(noting that section 3585(b), the successor statute to

section 3568, states explicitly that an individual can receive

jail time credit only for time spent in custody"that has not

been credited against another sentence"); cf. Wilson, 503

U.S. at 337, 112 S.Ct. at 1355-56 (explaining that with the

enactment of section 3585(b) in place of section 3568,

"Congress made it clear that a defendant could not receive

a double credit for his detention time.").



We agree with this body of case law interpreting the plain

language of section 3585(b), and find that in the

circumstances presented here, the section does not

authorize the award of credit for the 22 months that Rios

spent in federal control under the second writ. 13 It is

_________________________________________________________________



13. Although the issue is not squarely before us, we recognize that the

BOP permits the award of what amounts to a form of"double credit" in

certain limited circumstances despite the plain language of section
3585(b). The BOP does not contest this point on appeal. Indeed,

throughout the adjudication of Rios's administrative appeals of the BOP's

denial of credit, the BOP referred to the possibility of an award of

"double credit" pursuant to the "Willis/Kayfez line of cases." App. at 62,

68. These statements refer to Willis v. United States, 438 F.2d 923 (5th

Cir. 1971), and Kayfez v. Gaselle, 993 F.2d 1288 (7th Cir. 1993).



To the extent that the district court relied on the fact that the BOP

permits a credit under Willis and Kayfez which seemingly conflicts with

the plain language of section 3585(b), we believe that it read too much

into those opinions. Both Willis and Kayfez involved different crediting

issues not presented on the facts of this case, as the 22-month time

period at issue here occurred after the state sentence was imposed but

before the federal sentence was pronounced. See U.S. Dept. of Justice,

Fed. Bureau of Prisons Program Statement 5880.28(c)(2)(c) & (d) (Feb.

14, 1997) (providing formulas for calculation of Willis and Kayfez

credits). Moreover, it is clear from the administrative appeals that

occurred in this case that the BOP considered the possibility of



25




undisputed that the 22-month time period was credited

against his state sentence, as Rios already had been

sentenced on the state offense and thus was serving that

sentence during the relevant time period. We therefore

conclude that the district court applied section 3585(b)
incorrectly.



Specifically, in its memorandum and order denying the

BOP's motion for reconsideration, the district court held

that a departure from the general rule prohibiting double

credit was warranted because of the length of time that

Rios was held in federal detention pursuant to the second

writ. In reaching its conclusion, it relied on Brown II where

the court reached a similar result under factually

analogous circumstances. See Rios II, 34 F. Supp.2d at

269-70 (citing Brown II, 28 F.3d at 1075; Brown I, 21 F.3d

at 1008-09).



The defendant in Brown sought a credit against his

federal sentence for time spent in a federal prison pursuant

to writ of habeas corpus ad prosequendum while awaiting

trial and sentence on a federal narcotics charge. See Brown

I, 21 F.3d at 1008. Prior to his arrest on the federal

charges, a state court sentenced the defendant on a

narcotics conviction. The defendant eventually was

convicted of the federal offense. At the defendant's

sentencing on the federal charge, the district court awarded

jail time credit for all of the time spent in federal control

pursuant to the writ. At some later point the credit was

redacted, leading the defendant to file a habeas corpus

petition in the district court. The court of appeals stated

that the dispositive issue was whether the defendant was
entitled to credit on his federal sentence for the time spent

in federal detention pursuant to the writ of habeas corpus

ad prosequendum. See id. at 1009.

_________________________________________________________________



additional credit under the Willis/Kayfez line of cases, but rejected it.

Thus, nothing in this opinion should be construed as suggesting that in

other cases, the BOP's award of Willis and/or Kayfez credits is improper.

The BOP's position with respect to the grant of Willis and Kayfez credits

simply has no application to the facts of this case, and does not affect

our conclusion that the award of double credit in Rios's case is

prohibited by section 3585(b).



26




In the original panel opinion in Brown I and in its

supplemental opinion in Brown II, the Court of Appeals for

the Tenth Circuit held that the defendant was entitled to

credit on his federal sentence for the time he was detained

pursuant to the writ, which was approximately 19 months.

The supplemental opinion recognized that pursuant to the

writ, the defendant was in effect "on loan" to the federal

authorities. Nevertheless, the court concluded that the

"loan" effectuated by the writ at some point"transmuted"

into federal "custody" for purposes of section 3568 such

that credit against the federal sentence should have been
given to the defendant. See Brown II, 28 F.3d at 1075. The

court stated that the defendant's case was unique because

of the duration of the federal detention. See id. While

declining to adopt a per se rule as to how long a state

prisoner may be on loan to federal authorities without

taking custody of the prisoner, the court found that the 19-

month detention constituted federal custody under the

plain language of section 3568, the predecessor statute to

section 3585(b). See id.



While the district court stated that the rule enunciated in

Brown II was persuasive and thus applied it in this case,

we find its reliance on Brown II misplaced. First, as the

district court correctly pointed out (but did notfind

dispositive), Brown was decided under section 3585(b)'s

predecessor statute, section 3568. Section 3568 did not

contain the explicit prohibition on double credit found in

section 3585(b). See Wilson, 503 U.S. at 337, 112 S.Ct. at

1355-56 (stating that Congress made clear in section

3585(b) that a defendant could not receive double credit for

his detention time). While the district court noted the

difference in statutory language, it reasoned that the

change was a "mere" codification of prior case law under

section 3568 and therefore immaterial. See Rios II, 34 F.

Supp.2d at 270-71.



We do not share the district court's view that the change
in language is immaterial. Assuming that the district court

is correct in its supposition that Congress added the last

clause of section 3585(b) to codify then-existing case law

interpreting section 3568, it does not follow that we may

ignore the plain language in section 3585(b) to achieve



27




what may be perceived as an equitable result.14 Because the

court in Brown obviously did not address the plain

language of the last clause of section 3585(b), we believe

that the district court erred in relying on the rule of law

announced in that case. See Brown I, 21 F.3d at 1010 ("The

fact that the state continued to grant Appellant jail time

credit does not impact on our analysis under the facts

presented herein because Appellant clearly satisfied the

requirements of S 3568.").



More fundamentally, however, we respectfully disagree

with the reasoning employed by the court in Brown. We

understand the court's conclusion that the prolonged

detention transmuted into federal custody as an attempt to

fit the case within the plain language of section 3568.

Indeed, the court's reference to the federal detention as

being transmuted into custody for purposes of the crediting

statute tracks the pertinent language of section 3568.15
Nevertheless, as the BOP correctly argues, the law on this

point is clear: a prisoner detained pursuant to a writ of

habeas corpus ad prosequendum remains in the primary

_________________________________________________________________



14. Our research reveals that the majority of the courts addressing the

meaning of section 3568 interpreted that statute to prohibit the award

of "double credit" despite the fact that the language of the statute did
not

explicitly limit its application in that manner. See, e.g. Sinito v.
Kindt,

954 F.2d 467, 470 (7th Cir. 1993) (noting that several cases held under

section 3568 that a prisoner in state custody subject to a writ of habeas

corpus ad prosequendum based on a federal charge is not entitled to

pretrial credit against his subsequent federal sentence because the time

spent in pretrial custody was credited toward his existing state sentence)

(citing cases); Siegel v. United States, 436 F.2d 92, 95 (2d Cir. 1970)

(finding that defendant was not entitled to double credit for time spent

in federal control prior to the imposition of the federal sentence where
it

was undisputed that he was serving a state sentence during the relevant

time period and the time was credited to his state sentence).



15. Section 3568, which was repealed in 1984, provided in relevant part

(emphasis added):



The sentence of imprisonment of any person convicted of an offense

shall commence to run from the date on which such person is
received at the penitentiary, reformatory, or jail for service of such

sentence. The Attorney General shall give any such person credit

toward service of his sentence for any days spent in custody in

connection with the offense or acts for which sentence was imposed.



28




custody of the first jurisdiction unless and until the first

sovereign relinquishes jurisdiction over the prisoner. See,

e.g., Jake v. Herschberger, 173 F.3d 1059, 1061 n.1 (7th

Cir. 1999); Chambers, 920 F. Supp. at 622; United States v.

Smith, 812 F. Supp. 368, 371-72 (E.D.N.Y. 1993).



We are not aware of any principle of law which supports

the conclusion that the length of time in federal detention

effectively abrogates the doctrine of primary jurisdiction --

predicated on principles of comity -- and "transmutes" the

inmate into a federal prisoner for crediting purposes under

section 3585(b) or its predecessor statute, section 3568.

Moreover, we are unable to ascertain the point at which the

prisoner would be deemed to have become a federal

prisoner for credit purposes. In this regard, we point out

that it is ironical that the longer the federal pretrial

detention lasted, the better off the prisoner would be from

a crediting standpoint, because a short detention might not

result in the prisoner's being regarded as being in federal
custody at all, in which case he would not be entitled to

credit for that period against the federal sentence ultimately

imposed.



Thus, we agree with those courts which have determined

that the general rule prohibiting double credit articulated in

section 3585(b) applies equally to situations where, as here,

the prisoner was in federal control pursuant to a writ of

habeas corpus ad prosequendum during the time period for

which a pre-sentence credit is sought. See Chambers, 920

F. Supp. at 622-23 (finding that petitioner could not receive

credit on federal sentence for time period commencing

March 9, 1992, to October 16, 1992, the date the federal

sentence was imposed; court noted that petitioner was

serving state sentence as of March 9, 1992, and was

subject to primary jurisdiction of state during relevant time

period); see also Miller v. Crabtree, No. 98-989, 1999 WL

607191, at *2 (D. Or. Aug. 4, 1999) (rejecting petitioner's

request for credit for pre-sentence incarceration where

petitioner received credit for time served on sentence for

state parole violation); United States v. Mahmood, 19 F.

Supp.2d 33, 35 (E.D.N.Y. 1998) (denying petitioner credit

under section 3585(b) not awarded by BOP for entire pre-

sentence time period and noting that BOP "erred on the



29
side of generosity" in awarding some credit toward federal

sentence for time spent in detention pursuant to a federal

writ of habeas corpus as prosequendum; court noted that

time spent in custody pursuant to writ already had been

credited against state sentence); Smith, 812 F. Supp. at 374

(recognizing that section 3585(b) prohibits "double credit");

cf. Sinito v. Kindt, 954 F.2d 467, 470 (7th Cir. 1993) (and

cases cited therein) (rejecting petitioner's request for credit

on second federal sentence for pre-sentence incarceration

pursuant to section 3568; court stated that petitioner's

request was "absurd," as it was clear that petitioner was

serving a prior federal sentence during the detention

period); Arashi, 1995 WL 453308, at *4-9 (reaching same

conclusion under similar facts).



The principal rationale for disallowing double credit in

this circumstance is that the prisoner is not in custody

solely because of the pending federal charges, but instead

is serving the prior state sentence. See Sinito, 954 F.2d at

469; Miller, 1999 WL 607191, at *2; see also Chambers,

920 F. Supp. at 622-23. Thus, in harmony with the

principles of primary custodial jurisdiction and comity, the

prisoner remains in service of the first sentence imposed

during the time period, and the writ merely "loans" the

prisoner to federal authorities. See id. at 622 (stating that

producing a state prisoner under a writ of habeas corpus
ad prosequendum to answer to federal charges does not

relinquish state custody); Smith, 812 F. Supp. at 371, 374

(same) (citing cases).



Applying these principles to the circumstances of Rios's

detention on the federal writ, it is clear that he remained

throughout the 22-month time period in the primary

custodial jurisdiction of the State of New York, and that as

a result, he received credit against his state sentence for

the entire 22 months. Indeed, it would appear that the

situation presented in this case is the quintessential

example of when section 3585(b)'s prohibition of double

credit should apply. Moreover, this position is consistent

with the BOP's Program Statement interpreting section

3585(b) which is entitled to deference.16 See Dept. of

_________________________________________________________________



16. A Program Statement is an internal agency guideline, which is akin

to an interpretive rule. See Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct.

2021, 2027 (1995). Where the BOP's interpretation of section 3585(b) is

a "permissible construction of the statute," it is entitled to "some

deference." Id., 115 S.Ct. at 2027.



30




Justice, Bureau of Prisons' Program Statement No.
5880.28(c)(1)(a)(2) (Feb. 14, 1997) ("Credit will not be given

for any portion of [pre-federal sentence] time spent serving

another sentence regardless of whether the sentence is

federal, state or foreign."); id. at No. 5880.28(c)(6) (July 29,

1994) ("Time spent in custody under a writ of habeas

corpus from non-federal custody will not in and of itself be

considered for the purpose of crediting pre-sentence time.

The primary reason for `writ' custody is not the federal

charge." The federal court merely `borrows' the prisoner

under the provisions of the writ for secondary custody.").



As we have indicated, in addition to its reliance on Brown

II, the district court originally premised its result on the

opinion in Benefield, but then retreated from its position in

deciding the BOP's reconsideration motion. On

reconsideration, the district court read the outcome in

Benefield as grounded on the fact that the federal charges

arose out of the same conduct as the state conviction, and

determined that the state and federal charges in this case

were not based on the same conduct. It reached its

conclusion in this connection apparently because the

record submitted on reconsideration demonstrated that the

sentencing court did not apply U.S.S.G. S 5G1.3(b) at

sentencing. See Rios II, 34 F. Supp.2d at 269.



Rios argues in his brief that the holding in Benefield

provides an alternative basis for affirming the district
court's grant of habeas corpus relief. We, however, disagree

with Rios to the extent that he contends that Benefield

compels the conclusion that he is entitled to a 22-month

credit against his federal sentence under section 3585(b).



To be sure, the court of appeals in Benefield permitted an

award of pre-sentence credit on a federal sentence for time

credited toward service of the state sentence. Nevertheless,

we cannot determine from the opinion which period of

incarceration was at issue, i.e., whether the defendant

served the time prior to the imposition of the state

sentence, after the imposition of the state sentence but

prior to the commencement of the federal sentence, or both.

See Benefield, 942 F.2d at 66-67 (noting that defendant

sought credit for "time served prior to sentencing"); see also

Major Michael G. Seidel, Giving Service Members the Credit



31




They Deserve: A Review of Sentencing Credit and Its

Application, Army Law., (Aug. 1999), available in Westlaw,

1999-AUG ARMLAW, at *7, *12 (indicating that Benefield

interpreted section 3585 to require federal credit for state

pretrial confinement). As we have explained in note 13, the

BOP permits an award of pre-sentence credit under section

3585(b) in certain circumstances even where the same
period of detention was credited against a prior sentence.

Inasmuch as the basis for the court's holding in Benefield

is unclear, we do not believe that its outcome controls on

the facts of this case as it is undisputed that Rios spent the

entire 22 months in service of a previously imposed state

sentence and thus received credit against that state

sentence. In any event, to the extent that Benefield may be

inconsistent with our result, we will not follow it.



In our view, the construction of the last phrase of section

3585(b) and its application to the facts of this case is

relatively straightforward. If the sentencing court had not

applied section 5G1.3(c) and Application Note 3 in

pronouncing Rios's sentence such that the issue presented

on appeal was in fact a crediting matter governed by

section 3585(b), under that statute Rios would not be

entitled to the 22-month credit for the time spent in federal

control pursuant to the writ. Indeed, the district court

recognized that section 3585(b) generally prohibits an

award of double credit. Rios II, 34 F. Supp. 2d at 270

("Unlike in Brown, where section 3568 did not prohibit

double credit, section 3585(b) does, and since Rios received

credit for the 22-month period on his New York state

sentence, it could be argued that section 3585(b) prohibits

credit here.").



For each of these reasons, we find that the district court
interpreted section 3585(b) incorrectly so as to permit the

court to require the BOP to award Rios double credit for the

22-month time period at issue. We thus expressly reject the

alternative rule enunciated by Brown II and followed by the

district court in this case. Nevertheless, despite the district

court's error in this regard, we will affirm on the alternative

ground that the sentencing court applied section 5G1.3(c)

and Application Note 3 in sentencing Rios such that the

BOP is required to calculate his federal sentence in the

manner he requested in his petition.



32




V. CONCLUSION



For the foregoing reasons, we will affirm the order

granting Rios's petition for a writ of habeas corpus entered

December 8, 1998, and the order denying reconsideration

entered on February 3, 1999.



A True Copy:

Teste:



Clerk of the United States Court of Appeals

for the Third Circuit
33
