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No. 05-826

In the Supreme Court of the United States

DOUGLAS EDWIN PIERCE, PETITIONER

v.

COLE JETER, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
LOUIS M. FISCHER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in refusing to set aside the determination by the Bureau of Prisons that petitioner was not entitled to credit against his federal sentence for time he spent in state custody, where credit for that time had been awarded by the State against petitioner's state sentence.

In the Supreme Court of the United States

No. 05-826

DOUGLAS EDWIN PIERCE, PETITIONER

v.

COLE JETER, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-3a) is not published in the Federal Reporter but is reprinted in 150 F. App'x 344. The order of the district court (Pet. App. 4a-5a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on October 14, 2005. The petition for a writ of certiorari was filed on December 23, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

In 2004, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2241, arguing that the Bu reau of Prisons (BOP) had erroneously failed to grant him credit for time spent in state custody. Gov't C.A. Br. 2. The district court denied his petition, Pet. App. 4a-5a, and the court of appeals affirmed, id. at 1a-3a.

1. On January 25, 2000, petitioner was arrested on state charges for engaging in organized crime and con spiring to manufacture methamphetamine. Sixteen days later, he was released on bail. On April 8, 2000, state authorities arrested him for bail jumping and failure to appear, and his bond was revoked. On January 17, 2001, while still awaiting prosecution on the state charges, petitioner was transferred into federal custody, on the basis of a writ of habeas corpus ad prosequendum, pend ing his trial on federal drug charges. App., infra, 2a; Gov't C.A. Br. 4.

Petitioner eventually pleaded guilty in the United States District Court for the Western District of Texas to conspiring to manufacture methamphetamine, in vio lation of 21 U.S.C. 841(a)(1) and 846. On January 3, 2002, the federal district court sentenced him to 78 months of imprisonment, to be followed by five years of supervised release. App., infra, 2a-3a; Gov't C.A. Br. 4- 5. The federal judgment and commitment order was silent on the relationship between the federal sentence and any future state sentence. App., infra, 15a; Pet. 2.

On February 13, 2002, petitioner was returned to state officials. In state court, petitioner pleaded guilty to bail jumping, and the State dismissed the drug charges against him. Pet. 2-3; Gov't C.A. Br. 4-5. On February 21, 2002, the state court sentenced petitioner to three years of imprisonment, to be served concur rently with his federal sentence. App., infra, 3a; Gov't C.A. Br. 5; Pet. C.A. Br. Exh. H (state judgment).1

2. On June 28, 2002, petitioner was paroled from his state sentence directly to the U.S. Marshals Service for commencement of his federal sentence. Pursuant to 18 U.S.C. 3585(b) and BOP Program Statement 5880.28, Sentence Computation Manual CCCA, BOP credited petitioner with 33 days that he was in state custody be fore his federal sentencing because those days had not otherwise been credited against another sentence.2 BOP did not credit petitioner for any of the other time he served on his state sentence. App., infra, 2a-4a; Gov't C.A. Br. 5.

On October 3, 2002, as part of its process to deter mine how much credit to afford petitioner for his time in state custody, BOP contacted the Texas Department of Criminal Justice to determine the amount of credit peti tioner received on his state sentence. See App., infra, 3a-4a, 10a-11a. On October 7, 2002, BOP received infor mation from the State indicating that petitioner received credit on his state sentence from April 24, 2000, until his parole to federal authorities on June 28, 2002. See id. at 12a-13a. On May 29, 2003, BOP also contacted the Pro bation Office in the Western District of Texas to seek the views of the federal sentencing court with respect to the operation of petitioner's federal sentence in relation to his state sentence. See id. at 3a, 14a-17a.3 By letter dated June 20, 2003, the Probation Office informed BOP that "[t]he Court wishes this inmate's sentence to run consecutive to his State sentence." Id. at 18a.

3. a. Beginning on June 28, 2003, petitioner chal lenged, through BOP's administrative review process, BOP's decision not to credit him with 652 days that he spent in state custody. See App., infra, 20a-28a; Pet. C.A. Br. Exh. D. He contended that he was entitled to the credit because his state judgment provided that his state sentence was to run concurrently to his federal sentence. See App., infra, 20a, 24a. Petitioner's appeal was denied at each level, including by the Regional Di rector. See id. at 26a-28a.

On November 14, 2003, the Regional Director ex plained in his decision that Section 3585(b) "authorizes credit for time spent in official detention prior to the imposition of a sentence that has not been credited against another sentence." App., infra, 27a. The Re gional Director informed petitioner that "[a]s a result of language on your state judgment reflecting the sentence should be served concurrently with your federal sen tence, institution staff contacted the U.S. Probation Offi cer," who contacted the sentencing judge and were "in formed the court intended for your federal sentence to be served consecutively to your state sentence." Id. at 27a-28a. The Regional Director further noted that the State had confirmed to BOP that petitioner had received credit from the State for the time for which he sought credit. Id. at 27a. As such, the Regional Director ex plained that to award credit would be "contrary to the intent" of Section 3585(b). Ibid.

Nevertheless, the Regional Director indicated that BOP had considered petitioner's request as one to have BOP designate, nunc pro tunc, his state custody as the place of service of his federal sentence. App., infra, 27a- 28a. After consideration of "the available information, consistent with Title 18 U.S.C. § 3621" and the guidance of BOP Program Statement 5160.05, the Regional Direc tor stated that BOP had concluded: "In your specific case, we find commencement of your federal sentence by way of a concurrent designation is not consistent with the goals of the criminal justice system." Id. at 28a.4

In December 2003, petitioner appealed the Regional Director's decision to the BOP Central Office. See Ap pendix to Gov't Resp. to Pet. Traverse at 005. On Feb ruary 2, 2004, the Central Office denied petitioner's ap peal, stating that it "concur[red] with previous findings in that the Bureau of Prisons computed your sentence according to the applicable statutes and in accordance with Program Statement 5880.28, Sentence Computa tion Manual CCCA." Id. at 004.

b. In May 2004, petitioner filed pro se the instant habeas corpus action under 28 U.S.C. 2241 against the warden of his institution.5 He argued, inter alia, that "[c]ontrary to the p[l]ain language of 18 U.S.C. §3584(a)," respondent "has failed to properly grant prior jail credit time to Petitioner's sentence calculation and has refused to acknowledge and amend the appropriate changes." Pet. for Writ of Habeas Corpus at 3 (filed May 10, 2004).6 In response, the government filed a mo tion to dismiss and a motion for summary judgment. The latter motion included a declaration and supporting documents (see App., infra, 1a-19a) demonstrating that petitioner received credit on his state sentence for the time at issue. The government argued that petitioner failed to state a claim for relief because, under 18 U.S.C. 3585(b), petitioner was not entitled to credit for time spent in official custody when that time had been cred ited against another sentence. The government also argued that the federal sentencing court had discretion, under Section 3584(a), to order that petitioner's federal sentence be served consecutively to his as-yet- unimposed sentence. See Gov't Mot. to Dismiss at 3-5.

c. In a brief Order, the district court dismissed for the reasons discussed in the government's motion to dismiss, rejecting petitioner's claim that "he has not received proper credit for time spent in state custody prior to federal custody." Pet. App. 4a-5a & n.1.

4. On appeal, petitioner, again proceeding pro se, argued that, under Section 3584(a), the federal court lacked authority to impose a federal sentence consecu tive to an as-yet-unimposed state sentence. The govern ment responded that "[t]he Attorney General, through the Bureau of Prisons (BOP), determines what credit, if any, will be awarded to prisoners for time spent in cus tody prior to the commencement of their federal sen tences," Gov't C.A. Br. 11, and that petitioner was not entitled under Section 3585(b) to the time at issue be cause he already had received credit for that time from the State, id. at 16. In response to petitioner's argu ment that the state court had ordered the state sentence to run concurrently, the government contended that a state court has no authority to order how a federal sen tence is computed. Id. at 12. The government further noted that Fifth Circuit precedent afforded the district court discretion under Section 3584(a) to run petitioner's sentence consecutively to his impending state sentence, and that, "absent language in the sentencing decision to the contrary," Section 3584 dictated that they be served consecutively. Ibid.

The court of appeals affirmed in a short, unpublished per curiam. Relying on United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), cert. denied, 500 U.S. 925 (1991), and Section 3584(a), the court of appeals held that "[t]he sentencing court had the discretion to order that a federal term of imprisonment run either consecu tively to or concurrently with an anticipated, but not yet imposed, state sentence." Pet. App. 2a. The court ob served that "the fact that the state court ordered the state sentence to run concurrently with the federal sen tence does not change the consecutive nature of the fed eral sentence," because federal authorities are not bound by sentencing orders from state courts. Id. at 3a. Finally, the court held that "because the record indi cates that the time that [petitioner] spent in federal cus tody pursuant to a writ of habeas corpus ad prosequendum was credited against his state sentence, the BOP correctly applied 18 U.S.C. § 3585(b)(2) when it did not include this time as credit towards [peti tioner's] federal sentence." Ibid.

ARGUMENT

Petitioner contends (Pet. 5-30) that the district court did not have the authority to direct that his sentence run consecutively to a state sentence that had not yet been imposed. According to petitioner, 18 U.S.C. 3584(a) re stricts a district court's ability to impose a sentence con secutive to a state sentence to instances where the de fendant "is already subject to" the state sentence. 18 U.S.C. 3584(a). Petitioner contends that the court of appeals' rejection of that interpretation conflicts with decisions of other courts of appeals.

Petitioner is correct that the courts of appeals dis agree on whether a federal court has the authority to direct a sentence to be served consecutively to a yet-to-be imposed state sentence. In addition to the Fifth Circuit, the Eighth, Tenth, and Eleventh Circuits have ruled that district courts have such authority. See United States v. Andrews, 330 F.3d 1305, 1306-1307 (11th Cir.) (per curiam), cert. denied, 540 U.S. 1003 (2003); United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001) (per curiam); United States v. Williams, 46 F.3d 57, 58-59 (10th Cir.), cert. denied, 516 U.S. 826 (1995). The courts of appeals for the Sixth, Seventh, and Ninth Circuits have held that district courts lack that authority. Romandine v. United States, 206 F.3d 731, 738 (7th Cir. 2000); United States v. Quintero, 157 F.3d 1038, 1039-1040 (6th Cir. 1998); United States v. Clay ton, 927 F.2d 491, 492 (9th Cir. 1991). This case, how ever, does not present that question, and in any event, resolving that conflict is unnecessary. Further review is not warranted.7

1. Although both parties and the lower courts framed the issue as turning in part on a court's authority under 18 U.S.C. 3584(a) to order consecutive sentences, this case does not present the question whether a dis trict court has authority under that Section to order a federal sentence to be served consecutive to an as-yet- unimposed state sentence. Here, the district court did not even purport to do so. As petitioner concedes (Pet. 2), the federal sentence was silent on the relationship between the federal sentence and any future sentence. See App., infra, 15a. The question presented by the petition-"whether a federal judge can require a defen dant to serve a term of imprisonment consecutively to another sentence that has not yet been imposed," Pet. i (emphasis added)-is therefore not presented by the facts of this case.

Properly understood, this case involves BOP's au thority under 18 U.S.C. 3585 and 3621, not a sentencing court's authority under 18 U.S.C. 3584. As this Court held in United States v. Wilson, 503 U.S. 329 (1992), BOP, not the federal sentencing court, has the authority to determine how much credit a defendant should re ceive for time spent in official detention before the com mencement of his federal sentence. See id. at 332-337 (interpreting Section 3585). That is because, "[a]fter a district court sentences a federal offender, the Attorney General, through BOP, has the responsibility for administering the sentence. Id. at 335 (citing 18 U.S.C. 3621(a)).

Here, as the court of appeals concluded, "BOP cor rectly applied 18 U.S.C. § 3585(b)(2)" when it declined to credit petitioner for the time that already had been credited against his state sentence. Pet. App. 3a. BOP also did not abuse its discretion in refusing to designate, nunc pro tunc, state custody as the place of petitioner's federal confinement. See 18 U.S.C. 3621(b). As ex plained in the decision of the Regional Director, BOP determined that "commencement of [petitioner's] fed eral sentence by way of a concurrent designation [wa]s not consistent with the goals of the criminal justice sys tem." App., infra, 28a. BOP reached that conclusion after taking into account the federal sentencing court's wishes. But the letter from the Probation Office that conveyed the court's "wishes," id. at 18a, was not part of the judgment and commitment order, and the court had no power, 18 months after sentencing, to amend the judgment or modify the sentence. See Fed. R. Crim. P. 35(a) (limiting correction of "arithmetical, technical, or other clear error" to within seven days after sentence); see, e.g., United States v. Penna, 319 F.3d 509, 512 (9th Cir. 2003) ("The district court must correct a sentence within seven days after orally pronouncing it or else it loses its jurisdiction to modify the sentence."). The Re gional Director's decision (App., infra, 26a-28a) and BOP's relevant Program Statement (see note 3, supra) make clear that, while the court's intentions are an im portant consideration, they are only one of the consider ations taken into account in making a designation deci sion under Section 3621(b).8

The circuits appear to agree that BOP has broad dis cretion to determine whether to allow a federal inmate to serve his federal time in state custody. See Romandine, 206 F.3d at 738-739 (agreeing with the Sec ond and Third Circuits that that the Attorney General has discretion under Section 3621 effectively to run sen tences concurrently by designating the state institution as the place for service of the federal sentence); see also Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75-76 (2d Cir. 2005); Taylor v. Sawyer, 284 F.3d 1143, 1147-1150 (9th Cir. 2002), cert. denied, 537 U.S. 1119 (2003); Barden v. Keohane, 921 F.2d 476, 483-484 (3d Cir. 1990).9 Petitioner, in any event, does not challenge BOP's exercise of discretion; rather he seeks to chal lenge only action by the federal sentencing court. Be cause this case actually concerns BOP's refusal to allow petitioner credit for time in state custody for which he already received time under his state sentence, rather than any order by a district court made under Section 3584, the question raised by petitioner is not at issue here.

2. In any event, resolving whether district courts have the power to impose a sentence that is to run con secutively to an as-yet-unimposed state sentence is un necessary because a district court's order that a defen dant's sentence be served consecutively to future state sentences is not binding on state courts. This Court has long recognized that although federal and state courts "co-exist in the same space, they are independent, and have no common superior." Ponzi v. Fessenden, 258 U.S. 254, 261 (1922) (quoting Covell v. Heyman, 111 U.S. 176, 182 (1884)) (emphasis added). "[O]ur federal sys tem is one of 'dual sovereignty,' and not one in which the Supremacy Clause controls sentencing." Taylor v. Saw yer, 284 F.3d at 1150 (quoting Strand v. Schmittroth, 251 F.2d 590, 605 (9th Cir.), cert. dismissed, 355 U.S. 886 (1957)). Each sovereign has "full power to set punish ment for crimes against the * * * sovereign" uncon strained by the other sovereign. 284 F.3d at 1151. Con sequently, "a determination as to concurrence of sen tence made by one sovereign does not bind the other." Jake v. Herschberger, 173 F.3d 1059, 1065 (7th Cir. 1999). Thus, as a general matter, neither state courts nor state prison systems are bound by federal court or ders concerning consecutive or concurrent sentencing. Cf. Federal Bureau of Prisons, U.S. Dep't of Justice, Program Statement No. 5160.05, at 3 (2003) ("Just as the federal government has no authority to prescribe when a state sentence will commence, the state has no authority to order commencement of a federal sen tence."); cf. United States v. Gonzalez, 520 U.S. 1, 11 (1997) (in a case involving consecutive sentence under 18 U.S.C. 924(c)(1), which then provided that no term of imprisonment imposed under it "shall * * * run concur rently with any other term of imprisonment," reserving the question "whether a later sentencing state court is bound to order its sentence to run consecutively to the [18 U.S.C.] § 924(c) term of imprisonment").

States may make their sentences concurrent to fed eral sentences if a defendant is in primary federal cus tody by designating the defendant's federal institution for service of the state sentence. If a defendant is in primary state custody, the state court can make the state sentence effectively concurrent to a subsequent federal sentence by deducting the length of the federal sentence from the time spent (or to be served) in the state system at sentencing, or by suspending a portion of the sentence. In addition, a defendant in state cus tody, a state court, or a state prison system can seek to have the Bureau of Prisons designate the state facility as the place for service of his federal sentence. See Pro gram Statement No. 5160.05, supra, at 4-7.10

Petitioner disputes (Pet. 13-17) the effectiveness of such measures and argues that they require state courts to engage in unseemly maneuvers to effectuate their sentencing intentions, which is asserted to be an affront to "important sovereign interests of state criminal jus tice systems." Pet. 13. But the interplay of state and federal sentencing intentions simply reflects the fact that each sovereign is entitled to decide whether its pun ishment should be cumulative of the other's. Here, the federal district court expressed its "wishes," through a letter from the Probation Office to BOP, that the federal sentence should be consecutive to petitioner's state sen tence. BOP considered that intention in deciding that it was not "consistent with the goals of the criminal justice system," App., infra, 28a, to credit petitioner's sentence for his federal drug conviction with time he served on his state bail-jumping conviction. The federal government should not be required to surrender its independent judgment about the proper extent of a defendant's fed eral punishment, and reduce the length of federal im prisonment, in order to abide by the terms of the plea agreement that petitioner made with the State and that the state court accepted.

In sum, the disagreement over whether federal courts have the legal power to provide that a federal sentence shall run consecutively to a future state sen tence does not have sufficient practical importance to warrant this Court's review. Even if it did, the Court should await a case where the issue is presented by the facts of the case, unlike this one where it is not.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
LOUIS M. FISCHER
Attorney

APRIL 2006

1 The state court judgment notes that the terms of the plea agreement include that "[s]entence to run concurrent with any federal sentence, as applicable." Pet. C.A. Br. Ex. H, at 2 (emphasis added). The judgment similarly states that the sentence shall be concurrent "if applicable" in its description of the terms of the punishment, id. at 3, although in the concluding paragraph it states simply that "Sentence to run concurrent with federal sentence," ibid.

2 Section 3585 provides:

Calculation of a term of imprisonment

(a) COMMENCEMENT OF SENTENCE.-A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.

(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 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.

3 Under BOP Program Statement 5160.05, "[a] designation for con current service of sentence will be made only when it is consistent with the intent of the federal sentencing court or the goals of the criminal justice system." Federal Bureau of Prisons, U.S. Dep't of Justice, Program Statement No. 5160.05, at 4 (2003). The Program Statement further provides that information that the BOP will consider in making that determination includes the "intent of the federal sentencing court, if available." Ibid. When an inmate makes a request for pre-sentence credit toward a federal sentence for time spent in service of a state sentence, the Program Statement provides that "[i]n making the determination, if a designation for concurrent service may be appro priate (e.g., the federal sentence is imposed first and there is no order or recommendation regarding the service of the sentence in relation ship to the yet to be imposed state term), the [BOP] will send a letter to the sentencing court (either the Chambers of the Judge, U.S. Attorney's Office, and/or U.S. Probation Office, as appropriate) inquir ing whether the court has any objections." Id. at 6.

4 Section 3621(b) provides in pertinent part that "[t]he Bureau of Prisons shall designate the place of the prisoner's imprisonment." 18 U.S.C. 3621(b).

5 At the time of petitioner's administrative complaint and the initiation of this action, L.E. Fleming was the warden of petitioner's federal institution; respondent is the current warden. Gov't C.A. Br. 2 n.1.

6 Section 3584(a) provides in pertinent part:

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 consecu tively[.] * * * 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).

7 The Court denied review of the issue in Lackey v. United States, 125 S. Ct. 2963 (2005) (No. 04-9286); Martinez v. United States, 125 S. Ct. 1299 (2005) (No. 04-7129); and Andrews v. United States, 540 U.S. 1003 (2003) (No. 03-136). The same question is raised by the petition for a writ of certiorari in Cox v. United States, 125 F. App'x 973 (10th Cir.), petition for cert. pending, No. 05-454 (filed Oct. 5, 2005); and Cruz v. United States 153 F. App'x 587 (11th Cir. 2005), petition for cert. pending, No. 05-8866 (filed Jan. 10, 2006).

8 To the extent that language in the warden's earlier administrative decision (App., infra, 23a), or the government's briefs in the lower courts, suggests that the district court's indirect expression of its "wishes" was somehow a binding order on BOP, that was incorrect. The warden's decision, moreover, was not BOP's final word, and the Regional Director's decision did not rely on Section 3584. See App., infra, 26a-28a.

9 Although the Second Circuit has suggested that Romandine disagreed on this score, see Abdul-Malik, 403 F.3d at 75-76, that cannot be squared with Romandine. See Romandine, 206 F.3d at 738-739 (noting that it agreed with the Second Circuit's "bottom line" that "[t]he Attorney General has discretion" to decide when to start the federal sentence by designating the place of service).

10 Here, petitioner claims (Pet. 15) that, because the federal sentence was silent on its effect on any future sentence, "the state court had no reason to believe that it was required to reduce its sentence * * * in order to ensure that its intent was effectuated." But BOP's Program Manual clearly states, with respect to subsequently-imposed state sentences, that "[i]f the federal sentence is silent * * * then the federal sentence shall not be placed into operation until the U.S. Marshals' Service or the Bureau of Prisons gains exclusive custody of the prisoner." BOP Program Statement 5880.28, at 1-32A.