BOP Ordered to Reconsider Concurrent Sentences

The 4th Circuit says a district court erred in overlooking the Bureau of Pris­on’s abuse of discretion in denying a ha­beas petitioner a nunc pro tunc designa­tion to allow him to serve a prior federal sentence imposed in North Carolina in an Oklahoma state prison where defendant served a later imposed state sentence; the state sentencing judge ordered that peti­tioner’s state sentences run concurrently with each other and with the previously imposed federal sentence.

The BOP’s sentencing computation, coupled with its refusal to grant nunc pro tunc relief, effectively determined that the previously imposed federal sentence would be served consecutively to the later imposed state sentence, and this notwith­standing the clearly expressed intent of the state sentencing court that its sen­tence be served concurrently with the federal sentence.

We conclude the district court correct­ly denied relief on petitioner’s claims re­lating to calculation and execution of his sentence, and we affirm the judgment in part for the reasons stated by the district court.

Abuse of discretion

We discern legal error, however, and hence an abuse of discretion, in the BOP’s stated basis for its refusal to grant nunc pro tunc relief. Specifically, we hold that, in its consideration of the fourth statuto­ry factor under 18 U.S.C. § 3621(b) (any statement by the court that imposed the sentence), the BOP misapplied 18 U.S.C. § 3584(a). That is, in the face of the fed­eral sentencing judge’s silence as to the court’s intention, the BOP invoked a presumption that the unelaborated fed­eral sentence should be deemed to run consecutively to the later imposed state sentence, quoting the following language from § 3584(a): “Multiple terms of impris­onment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”

We conclude the presumption relied on was inapplicable. The circumstances surrounding petitioner’s serial convic­tions and sentencings do not fall within either of the two scenarios contemplated by the opening sentence of § 3584(a). We are constrained to agree with petition­er’s assertion that the federal sentencing judge’s silence does not and cannot give rise to a statutory presumption that the federal sentence should be deemed in­tended as a consecutive sentence to the later imposed state sentence. We reject the government’s contention that the plain language of § 3584(a) creates a pre­sumption, in any and all circumstances, that multiple terms of imprisonment will run consecutively unless expressly stated otherwise.

The clarity of the BOP’s error is made even more plain by a second compelling consideration. At the time petitioner was sentenced in the North Carolina federal court in May 2007, a federal district judge in this circuit was powerless to impose a federal sentence to be served consecu­tively to a state sentence that had not yet been imposed. A circuit split on that issue was resolved in 2015.

In this case, one might reasonably ex­pect the BOP to exercise its discretion to weigh heavily what the state judge did say rather than what the federal judge did not and could not say.

Upon remand, the district court shall return this matter to the BOP so the agency may give plenary consideration to petitioner’s request for nunc pro tunc designation of the Oklahoma state facil­ity as the place for service of his federal sentence. In considering the request, the BOP shall invoke no presumption under 18 U.S.C. § 3584(a) and shall fully eval­uate all relevant factors under § 3621(b) consistent with this opinion.

Affirmed in part, vacated in part and remanded.

Mangum v. Hallembaek (Davis, S.J.) No. 15-6134, May 25, 2016; USDC at Raleigh, N.C. (Flanagan) Clint Cowan, Travis Andrews, U.Va. Law School, for appellant; Michael Bredenberg, AUSA, for appellee. VLW 016-2-089, 12 pp.