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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WATKINS RICHARDSON,

Petitioner,

v. CASE NO. 4:02cv298-RH/WCS

UNITED STATES OF AMERICA,

Respondent.

___________________________________/

ORDER DENYING PETITION

The petitioner in this habeas corpus proceeding under 28 U.S.C. §2241 is

subject to state and federal sentences for successive drug crimes. The federal

offenses were committed, and a 150-month sentence was imposed, prior to the

commission of the state offenses. The federal court had no reason to believe the

state offenses would be committed and did not address at the time of sentencing

any issue concerning whether the federal sentence would be consecutive to or

concurrent with any other sentence later imposed. The state court, in contrast,

knew of the federal sentence and imposed a 208-month state sentence to be served

concurrently with the federal sentence. Petitioner remains in state custody,

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Case No: 4:02cv298-RH/WCS

however, and the Bureau of Prisons has determined that petitioner will not receive

credit on his federal sentence until completion of the state sentence, thus

effectively rendering the sentences consecutive. The Bureau initially announced

its contrary intention, but solicited, and then heeded the recommendation of, the

federal sentencing judge, who “directed,” based at least partly on petitioner’s

conduct after imposition of the federal sentence, that the federal sentence should be

made consecutive. 

Petitioner now challenges the failure of federal authorities to take him into

federal custody at this time so that he can begin serving his federal sentence and

challenges the decision of the Bureau of Prisons not to afford him credit for time

served in state custody. The matter is before the court on the magistrate judge’s

report and recommendation, which correctly concludes that the claims as presented

are unfounded. I adopt the report and recommendation as the opinion of the court. 

I write further to address more fundamental issues that are inherent in

petitioner’s circumstances. The issues include (1) the respective roles of the state

and federal governments in determining whether state and federal sentences

imposed on the same defendant are consecutive or concurrent, and (2) to the extent

this determination is to be made at the federal level, the respective roles of the

sentencing judge and Bureau of Prisons in making the decision. 

1. The Federal Sentence. The federal court imposed a sentence of 150

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Case No: 4:02cv298-RH/WCS

months. At that time, petitioner was not subject to any other sentence, and no other

charges were pending. The court did not address any issue regarding whether, if

petitioner was later convicted of any other offenses, the sentences should be

concurrent or consecutive. Under 18 U.S.C. §3582, the federal sentence as

imposed was final and could not be changed, with narrow exceptions not relevant

here. And under the double jeopardy clause, petitioner could not again be

prosecuted for the same offenses, nor could his sentence be increased.

2. The Effect of Silence in the Federal Sentence. The statute that

addresses the issue of whether sentences should be consecutive or concurrent

provides:

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.

18 U.S.C. §3584(a).

 There is a split in the circuits on whether, under this provision, a federal

sentence that does not address the issue automatically should be deemed

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Case No: 4:02cv298-RH/WCS

consecutive, not concurrent, with respect to any other sentence later imposed. 

On one reading, the entire paragraph speaks only to the two situations

described in the first sentence: the imposition of sentences at the same time, or the

imposition of a sentence on a defendant who is already subject to an undischarged

sentence imposed earlier. On this view, the paragraph does not apply to the

situation in the case at bar: imposition of a sentence on a person who is not subject

to an undischarged sentence but who is later sentenced for a different offense. The

Second Circuit has adopted this view. See McCarthy v. Doe, 146 F.3d 118, 121-22

(2d Cir. 1998).

On a different reading, however, the paragraph’s last sentence is considered

alone. By its terms, this sentence is not limited to a defendant who is being

sentenced at the same time for different offenses or who is already subject to an

undischarged term of imprisonment; the provision applies also to a defendant who,

like petitioner, is not subject to any other sentence at the time, but who is later

sentenced for another offense. The Seventh Circuit has adopted this view. See

Romandine v. United States, 206 F.3d 731 (7th Cir. 2000).

If the Seventh Circuit view is correct, then, as a matter of federal law,

petitioner’s federal sentence is deemed concurrent. I conclude, however, that the

Second Circuit has read the statute correctly. The statute thus does not require that

the federal sentence be deemed concurrent. 

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1

 Under 18 U.S.C. §3585(b), a defendant receives credit for time spent in

state custody prior to commencement of the federal sentence if that time “has not

been credited to another sentence.” That provision does not help petitioner,

because the time he is serving in state custody is being credited on his state

sentence.

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This leaves the Bureau free to treat the sentence, in effect, as either

concurrent or consecutive. Under 18 U.S.C. §3585(a), a federal sentence

“commences” on the date when a defendant is received in federal custody, so that a

defendant who, like petitioner, is in state custody serving a state sentence

ordinarily receives no credit on his federal sentence.1

 But the Bureau has

discretion to designate a state institution as the official facility for service of the

federal sentence, see 18 U.S.C. §3621(b), and may even implement such a

designation nunc pro tunc. See Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). 

If the Bureau makes such a designation, the state and federal sentences are, in

effect, concurrent. Otherwise, the sentences are, in effect, consecutive. 

3. The Bureau’s Approach. The Bureau of Prisons has adopted a program

statement specifically addressing this issue. Under the program statement, a state

facility is designated for service of a federal sentence, thus rendering sentences

effectively concurrent, “when consistent with the intent of the sentencing Federal

court.” Bureau of Prisons Program Statement 5160.04 (document 15, ex. Q) at 3.

The Bureau determines the federal court’s intent from the original judgment or by

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sending a letter to the court asking whether the court objects to designation of the

state facility. Id. at 4-5. The Bureau adopted this approach based on the Third

Circuit’s decision in Barden.

In the case at bar, the original federal judgment gave no indication of the

court’s intent on this issue. The Bureau sent the sentencing court a letter indicating

the state facility would be designated for service of the federal sentence, thus

making the state and federal sentences concurrent, unless the court objected. The

court’s written response “directed” the Bureau to run the sentences consecutively,

notwithstanding the state court’s imposition of a purportedly concurrent sentence. 

In accordance with the view of the federal court, the Bureau elected not to

designate the state facility for service of the federal sentence. Petitioner thus is

serving his state sentence and receiving no federal credit; the sentences will be

consecutive.

Petitioner has not challenged the Bureau’s practice of soliciting the postsentencing views of the federal sentencing court. Nor has he challenged the

decision of the court in this instance to provide its views. The practice has support

in the reported cases. See, e.g., Barden, 921 F.2d at 483; United States v. Pineyro,

112 F.3d 43, 45 (2d Cir. 1997). And the practice has much to commend it: the

sentencing court is familiar with the goals of sentencing, see 18 U.S.C. §3553(a),

and with the particular case, and may be the best, most readily available source of

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2

 It is commonplace for judges to make recommendations to the Bureau with

respect to the treatment of a specific defendant. Indeed, the standard form of

judgment in a criminal case includes a section specifically devoted to such

recommendations. Thus, for example, judges routinely recommend designation

near a specific location or to a specific type of facility or that a defendant receive

treatment of one kind or another while in custody. But more substantive

recommendations that are based on facts that occurred after sentencing and may

affect the term a defendant will serve are of an altogether different character.

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reliable information of the type the Bureau properly should consider in making its

determination. Especially in light of such cases as Barden and Pineyro, the Bureau

can hardly be faulted for soliciting and considering the views of district courts.

Still, the propriety of this approach is not entirely clear. So far as I am

aware, no court has specifically attempted to reconcile the district court’s making

of such recommendations with §3582, which precludes a district court from

changing a sentence once imposed with exceptions not relevant here, or with the

principle that federal courts address issues only to the extent appropriate for

resolution of cases properly within their jurisdiction. See, e.g., Ashwander v.

Tennessee Valley Auth., 297 U.S. 288, 341, 345-46, 56 S. Ct. 466, 80 L. Ed. 688

(1936) (Brandeis, J., concurring); Hayburn’s Case, 2 U.S. (2 Dall.) 408, 1 L. Ed.

436 (1792) (forbidding federal courts from rendering advisory opinions or making

determinations that are subject to revision by the executive branch).2

 Petitioner has

not, however, challenged the Bureau’s solicitation or consideration of the

sentencing court’s views in the case at bar, and he is entitled to no relief on this

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3

 A defendant who challenges the Bureau’s calculation or implementation of

his sentence must exhaust his administrative remedies within the Bureau prior to

going to court. Petitioner has not exhausted any claim that the Bureau’s

solicitation or consideration of the sentencing judge’s views was improper and thus

would be entitled to no relief on any such claim in this case even if now asserted.

4

 The failure of petitioner or, apparently, any other defendant to challenge

the Bureau’s approach may be explained by the alternatives. The Bureau’s current

approach is more favorable to defendants than the approach it replaced. Under the

prior approach, which is described in Barden, petitioner’s request for nunc pro tunc

designation of the state facility apparently would not even have been considered.

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basis.3 It will be time enough to address these issues if and when properly raised

by an affected party.4

4. The Role of the State. The state court specifically imposed a sentence

intended to be served concurrently with the federal sentence. That direction has

not been followed. 

The proper implementation of a federal sentence is of course an issue for

federal authorities. A state court’s decision regarding concurrency need not be

followed. See, e.g., Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995). Petitioner’s

contrary assertion is plainly unfounded.

Still, this approach is troublesome. A sounder approach, when sentences are

imposed at different times and the first court did not anticipate that a second

sentencing would occur, might be to run the sentences concurrently or

consecutively as directed by the second court, state or federal. 

Thus, for example, if a defendant is sentenced first in federal court and later

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in state court, the federal judge already will have determined the sentence he or she

believes appropriate for the federal crime, and under 18 U.S.C. §3582, the sentence

will not be subject to revision. The state judge will know, when the later state

sentence is imposed, what overall sentence he or she deems appropriate, and this

will be reflected in the state sentence. Thus, for example, if the federal judge

imposes a sentence of 150 months, and the state judge determines that an

appropriate combined sentence is 208 months, the state judge could impose a

sentence of 68 months consecutive to the federal 150 month sentence, or the state

judge could impose a sentence of 208 months concurrent with the federal sentence;

the net effect would be the same (so long as the court’s direction ultimately is

honored). If the state judge imposes a sentence of 208 months

concurrent—intending defendant to face overall punishment of 208

months—defendant ought not have to serve 358 months. And if the state judge

imposes a sentence of 68 months consecutive—again intending defendant to face

overall punishment of 208 months—defendant ought not get out in 150 months. 

And it ought not be open to the federal judge to determine after the fact, when any

change in the federal sentence is foreclosed by §3582 and perhaps also by the

double jeopardy clause, that 150 months was not long enough and that the

appropriate sentence is really 358 months.

Ultimately, however, it is the role of Congress, at least within constitutional

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5

 Although §3582 prohibits revision of the federal sentence, there is no

analogous prohibition on changes in a defendant’s designation to a facility. And

though there is a tension between such changes, on the one hand, and the current

determinative sentencing regime, on the other, it bears noting that the Constitution

does not require, and for much of the nation’s history the federal system did not

follow, a determinative sentencing regime. The Bureau may consider postsentencing conduct in deciding where to designate a defendant and thereby affect

the amount of time the defendant will spend in custody, just as, prior to enactment

of the Sentencing Reform Act of 1984, the Parole Board could consider postsentencing conduct in deciding when to release a defendant, and just as, even now,

the Bureau of Prisons may consider post-sentencing conduct in deciding whether to

afford a defendant gain time.

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limits, to address these issues. Congress has not made determinative the view of

the second court, even when the first court did not address the issue. Congress has,

instead, (a) provided that service of a federal sentence commences when a

defendant enters federal custody, (b) authorized designation of a state facility for

service of a federal sentence, and (c) delegated to the Bureau of Prisons the

discretion to make such a designation. The Bureau has validly determined not to

treat as dispositive the views of a state sentencing court. And the Bureau also has

validly determined not to preclude consideration of conduct or events occurring

after the initial imposition of the federal sentence.5

5. The Denial of Concurrent Treatment. Ultimately, the issue in the case

at bar is whether the Bureau abused its discretion in determining not to designate

the state facility as the place of service of petitioner’s federal sentence. The effect

of the Bureau’s determination was to render petitioner’s state and federal sentences

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consecutive. 

I conclude that the Bureau did not abuse its discretion. At the time of the

federal sentencing, and without regard to the later state offenses, petitioner was a

career offender with a guidelines range of 262 to 327 months. The sentence of 150

months was a departure based on the government’s motion indicating defendant

had provided substantial assistance in the investigation or prosecution of others. 

See U.S. Sentencing Guidelines Manual §5K1.1. It was anticipated that petitioner

would continue to provide assistance, including by testifying at the trial of a codefendant. Reduced sentences are warranted for defendants who cooperate at least

in part because such defendants seemingly have renounced criminal conduct and

come over to the law-abiding side of the ledger. 

Here, however, petitioner chose not to report for service of his federal

sentence. He became a fugitive and returned to drug dealing under a different

name. He did not provide the testimony that was anticipated when the §5K1

motion was filed and sentence was imposed. Whatever might be said of the

Bureau’s solicitation of the sentencing court’s views or the process by which this

information came to the Bureau, it is clear that these are all circumstances that

properly could be considered in determining whether to make the sentences

concurrent or consecutive. And as set forth above, the Bureau was not required to

accept the state court’s views.

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The Bureau also was not required to accept the federal court’s views, as

Barden and Pineyro make clear. There is no indication in this record that the

Bureau failed to exercise its discretion, considered any improper factor, or failed to

consider any proper factor. Moreover, petitioner has not challenged the manner in

which the Bureau exercised its discretion. His contention, instead, is that he is

entitled to credit for time served in state custody, or is entitled to be moved into

federal custody, so that, in effect, the sentences are made concurrent, as the state

court intended. But the contention of entitlement is wrong. Congress committed

these matters to the discretion of the Bureau of Prisons, and in the absence of a

properly exhausted challenge to the manner in which the Bureau exercised its

discretion here, petitioner is entitled to no relief. As correctly set forth in the report

and recommendation, all of the claims petitioner has advanced in this proceeding

are unfounded.

For these reasons,

IT IS ORDERED:

The clerk shall enter judgment stating, “The petition for writ of habeas 

corpus is DENIED.” The clerk shall close the file.

SO ORDERED this 29th day of September, 2005.

s/Robert L. Hinkle 

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Chief United States District Judge 

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