UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

 v.

DAMIANE HARRIS, 

Defendant.

)

)

)

)

)

)

)

)

)

 NO. 2:15CR90-PPS

OPINION AND ORDER

For the second time in as many months, Damiane Harris is before me with a

motion seeking what he calls a nunc pro tunc amendment to his sentence. His earlier

motion was denied because it argued in error that I intended to order the sentence in

this case to run concurrent with subsequent state court sentences. [DE 38.] In his latest

motion, Harris asks me to order that the Federal Bureau of Prisons award him

sentencing credit “for time spent in pretrial custody from February 5th, 2016 until

present.” [DE 39 at 1.] 

For purposes of this federal prosecution, Harris was transferred to the custody of

the United States Marshal as of February 5, 2016 by means of a Writ of Habeas Corpus

Ad Prosequendum. [DE 5, 7.] On October 4, 2016, I sentenced Harris to 24 months’

imprisonment on the charge of interstate transportation of stolen property, which he

had pled guilty to on July 5, 2016. [DE 33, 21.] As a preliminary matter, I repeat what I

observed in my recent order, namely that I declined to make Harris’s federal sentence

concurrent with any sentences yet to be imposed in the then-pending Illinois cases. As
a result, credit all the way “until the present,” including time spent satisfying terms of

imprisonment imposed by the State of Illinois, would go too far in my view. Instead,

the reasonable question is whether Harris should be credited with the time he spent in

federal custody pursuant to the writ, that is, from February 5, 2016 to October 14, 2016

when he was returned to the Cook County Jail. [DE 5, 7, 35.] 

As the sentencing transcript reflects, defense counsel prompted a question about

whether Harris would receive credit against his federal sentence for the time spent in

federal custody pursuant to the writ. [DE 37 at 5-6.] The discussion resolved with me

persuaded that I correctly understood that Harris would be entitled to federal credit for

that time. [Id. at .] Later in the hearing when pronouncing the sentence, I said that

Harris would “be given credit for all time served from the time he was writted into

federal custody, so that goes back to February 5th of 2016.” [DE 37 at 29-30.] The

judgment contains my recommendation to the Bureau of Prisons “[t]hat the defendant

be given credit for time served (since February 5, 2016).” [DE 34 at 2.] 

The language of the judgment is admittedly more carefully worded than what I

said from the bench, although even the judgment did not take into account that Harris

might soon be returned to state custody, as in fact occurred. More importantly,

however, the judgment addressed the issue in the form of a recommendation rather

than an order, reflecting my understanding (then and now) that, as the sentencing

judge, I lack the power to determine matters of sentencing computation. The Supreme

Court determined long ago in United States v. Wilson, 503 U.S. 329, 334-35 (1992), that

2
the Bureau of Prisons, by delegation from the Attorney General, is vested with the

authority to determine credit toward a sentence of imprisonment. The sentencing court

has no such authority. See United States v. Walker, 917 F.3d 989, 993-94 (7th Cir. 2019)

(“even if it had wanted to give Mr. Walker credit for the time in question, the district

court could not have done so”). After exhausting any sentencing credit dispute through

the Bureau of Prisons’ internal administrative process, an inmate may seek review from

a district court by filing a petition under 28 U.S.C. §2241, but that must be filed against

the warden of the prison in the district where the inmate is incarcerated. Walker, 917

F.3d at 994.

As the sentencing judge, I have no authority to second-guess the determinations

of the Bureau of Prisons concerning Harris’s credit for jail time and his release date. I

can take no action in Harris’s favor with respect to the computation of his prison time,

other than to repeat, as I do now, that it is my recommendation that Harris be given

credit against the sentence I imposed for the time he spent in the custody of the United

States Marshal pursuant to the Writ of Habeas Corpus Ad Prosequendum from

February 5, 2016 to October 14, 2016. Even as I reiterate the recommendation, I

acknowledge that the matter is for the Bureau of Prisons to determine, and the

recommendation may be trumped by other considerations, such as whether Harris

received credit for that period of time against other sentences imposed by the State of

Illinois. 

ACCORDINGLY:

3
Damiane Harris’s Amended Motion for Nunc Pro Tunc Amendment [DE 39] is

DENIED.

SO ORDERED.

ENTERED: December 19, 2019.

 /s/ Philip P. Simon 

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT

4