1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-29-1999

USA v. Dorsey

Precedential or Non-Precedential:

Docket 98-5250

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Recommended Citation

"USA v. Dorsey" (1999). 1999 Decisions. Paper 25.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/25
Filed January 29, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-5250 

UNITED STATES OF AMERICA, 

v. 

LORENZO DORSEY, aka LAMONT WHITE, 

aka HENRY JACKSON, 

 Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Criminal No. 96-cr-00461-1) 

ARGUED OCTOBER 29, 1998 

BEFORE: STAPLETON and LEWIS, Circuit Judges, 

and CALDWELL,* District Judge. 

(Filed January 29, 1999) 

 Chester M. Keller (ARGUED) 

 Office of Federal Public Defender 

 972 Broad Street 

 Newark, NJ 07102 

 Attorney for Appellant 

_________________________________________________________________ 

* Honorable William W. Caldwell, United States Senior District Judge for 

the Middle District of Pennsylvania, sitting by designation. 
 George S. Leone 

 Shawna H. Yen (ARGUED) 

 Office of United States Attorney 

 970 Broad Street, Room 700 

 Newark, NJ 07102 

 Attorneys for Appellee 

OPINION OF THE COURT 

CALDWELL, District Judge. 

Lorenzo Dorsey appeals from the district court's refusal 

at sentencing to follow commentary to U.S.S.G. S 5G1.3(b) 

in application note 2 to the guideline. Under that note, the 

court could have reduced Dorsey's federal sentence by a 

certain amount of time he had spent in state custody, 

thereby essentially giving him credit for that period of 

imprisonment before the federal sentence was imposed. 

Dorsey also asserts that the district court's action violates 

the double jeopardy clause because by refusing him credit 

the United States would be punishing him twice for the 

same offense. 

Because the district court erred in deciding that only the 

Bureau of Prisons has the authority to grant sentencing 

credits, we will reverse and remand for resentencing, and 

direct that the court comply with the procedure set forth in 

the application note. Our resolution of this guidelines issue 

renders consideration of the double jeopardy claim 

unnecessary. 

I. 

On May 7, 1996, the appellant was arrested in Newark, 

New Jersey, and charged with illegal possession of a 

firearm. He was sent to a New Jersey state prison the next 

day for a parole violation arising from this firearms offense. 

Both the United States and New Jersey decided to 

prosecute him for the offense. On August 21, 1996, he was 

indicted in federal court under 18 U.S.C. S 924(g)(1). On 

September 18, 1996, he was indicted in a New Jersey

 2 
court. On October 8, 1996, the appellant was released into 

the community from the sentence he was serving in state 

prison for the parole violation. On April 11, 1997, he was 

arrested by state authorities and incarcerated in a New 

Jersey state prison. Federal authorities lodged a detainer 

against him. 

Appellant pled guilty to the state charge. On August 22, 

1997, he was sentenced in state court to five years

imprisonment. In sentencing the appellant, the state court 

credited him with the 134 days he had spent in state 

custody from April 11, 1997, to the date of sentencing. 

The appellant also pled guilty to the federal offense. On 

May 12, 1998, he was sentenced to 115 months. Invoking 

application note 2 to U.S.S.G. S 5G1.3(b), the appellant 

sought credit for the entire time he had spent in state 

prison before his federal sentencing. This was a period of 

about 13 months, from April 11, 1997 (the date he was 

arrested on both the federal and state charges arising from 

the May 1996 firearms offense) to May 12, 1998, the date 

of his federal sentencing. However, the court refused the 

appellant's request, ruling that it had no authority to do so 

and that only the Bureau of Prisons (BOP) could give credit 

for the time he was incarcerated before imposition of 

sentence. As required by U.S.S.G. S 5G1.3(b), the district 

court did order that the sentence run concurrently with the 

state sentence.1 And, as a concession to the appellant, the 

court noted on its judgment order that it had not decided 

the issue of sentence credit and was leaving it to the BOP. 

Dorsey then took this appeal. While the appeal was 

pending, the BOP gave the appellant credit for a part of the 

_________________________________________________________________ 

1. Section 5G1.3(b) provides, in pertinent part, as follows: 

 If . . . 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. 

Here the undischarged term of imprisonment was the New Jersey 

sentence for the same firearms offense that was the subject of the federal 

offense. 

 3 
13-month period. The BOP gave him credit for the following 

periods of prefederal-sentencing incarceration, totaling 

about four months and two weeks: (1) May 7, 1996, the 

date of his apprehension on the firearms offense (for which 

he began serving a state parole-violation term the next day), 

and (2) a period from April 11, 1997, the date he was 

arrested on the federal and state firearms charges, to 

August 21, 1997, the day before his state-court sentencing. 

However, it refused to give him credit for the approximately 

10-month period between his state sentencing, August 22, 

1997, and his federal sentencing, May 12, 1998. The

parties agree that no credit was given for the latter period 

because 18 U.S.C. S 3585(b) prohibits the BOP from 

granting credit for time "that has been granted against 

another sentence," and this 10-month period was time 

serving his state sentence credited by New Jersey. See The 

Bureau of Prisons' Sentence Computation Manual at 1-17 

("credit will not be given for any portion of time spent 

serving another sentence [until a state facility is deemed 

federal which may only occur after the federal sentencing]"). 

II. 

Initially, we note that U.S.S.G. S 5G1.3(b) itself is not at 

issue here. As indicated by its language, that guideline 

section only requires that the sentencing court run the 

federal sentence concurrently to the undischarged term of 

the other sentence. The district court complied with this 

guideline and made the federal sentence concurrent with 

the New Jersey sentence. 

The controversy arises from application note 2 to section 

5G1.3(b), the commentary to that guideline section, which 

provides further guidance for the sentencing court in 

imposing the concurrent sentence. On its face, application 

note 2 would require, at least partially, the result the 

appellant sought at sentencing. The application note, 

captioned "Adjusted concurrent sentence--subsection (b) 

cases," provides: 

 When a sentence is imposed pursuant to subsection 

 (b), the court should adjust the sentence for any period 

 of imprisonment already served as a result of the 

 4 
 conduct taken into account in determining the 

 guideline range for the instant offense if the court 

 determines that period of imprisonment will not be 

 credited to the federal sentence by the Bureau of 

 Prisons. 

The note then immediately follows with an example: 

 The defendant is convicted of a federal offense charging 

 the sale of 30 grams of cocaine. Under S 1B1.3 

 (Relevant Conduct), the defendant is held accountable 

 for the sale of an additional 15 grams of cocaine, an 

 offense for which the defendant has been convicted and 

 sentenced in state court. 

Continuing with the example, the note further assumes 

that the guideline range is 10 to 16 months and that the 

defendant was sentenced in state court to nine months on 

which he has already served six months. In these 

circumstances, the note advises the district court that, if it 

decides that a 13-month federal sentence is appropriate, it 

should shorten that sentence to seven months and, in this 

way, give credit on the federal sentence for the six months 

already served on the state sentence. The application note 

closes by advising the sentencing court that it should note 

on the sentencing order what it has done so that the 

adjustment is not confused with a departure from the 

guideline range but rather recognized as a "credit[ ]" under 

S 5G1.3(b) for time served "that will not be credited to the 

federal sentence under 18 U.S.C. S 3585(b)." (brackets 

added). 

In the instant case, if the district court had applied 

application note 2, while it could not have granted the full 

credit the appellant sought, it could have granted a 

sentence adjustment of some 10 months, representing a 

credit for the period between the date of the appellant's 

state sentencing, August 22, 1997, and the date of his 

federal sentencing, May 12, 1998. This represents a period 

of imprisonment that would not have been credited to the 

federal sentence by the BOP, as the BOP's later decision 

confirmed, because it represented time that the appellant 

was already serving on his state sentence. 

 5 
Thus, we would have to reverse and remand for 

resentencing to allow for this credit unless the government 

is correct that application note 2 is invalid and that the 

district court correctly refused to follow it. Our review of the 

district court's legal interpretation of section 3585(b) and 

the guidelines is plenary. See United States v. Williamson, 

154 F.3d 504 (3d Cir. 1998). We turn now to the 

government's arguments. 

The government first contends that the district court was 

correct because under 18 U.S.C. S 3585(b), as construed by 

the Supreme Court in United States v. Wilson, 503 U.S. 

329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992), only the 

Attorney General (by way of delegation to the BOP) has the 

authority to award credit for time served before federal 

sentencing. Section 3585(b) states as follows: 

 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. 

18 U.S.C. S 3585(b). In Wilson, the Supreme Court held 

that, despite the ambiguity as to who was to award credit 

for time served, only the BOP has the authority under 

section 3585(b) to award such credit. However, the 

government reads too much into Wilson. 

The government argues that Wilson controls here because 

Wilson also dealt with federal and state sentences arising 

from the same criminal episode. However, it is not apparent 

from Wilson that Wilson did deal with such related offenses. 

The Supreme Court did not describe the offenses as being 

related. It merely stated that the defendant had been 

arrested on federal and state charges and had been held for 

a time in state custody on both sets of charges. 

Additionally, the lower court opinion indicates that they 

 6 
were unrelated offenses. See United States v. Wilson, 916 

F.2d 1115, 1116 (6th Cir. 1990) (after noting the federal 

arrest for attempted bank robbery, noting that the 

defendant had been arrested by state authorities 

"apparently in connection with various other robberies") 

(emphasis added). Wilson does not apply here 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 2.2 

The government next argues that the district court acted 

properly because it did comply with U.S.S.G. 5G1.3(b) by 

imposing a federal sentence concurrent with the state 

sentence. The government points out that guidelines

section 5G1.3(b), as opposed to application note 2, only 

requires that the sentence for the instant offense"be 

imposed to run concurrently to the undischarged term of 

imprisonment"; it says nothing about adjusting the federal 

sentence to allow credit for prefederal sentencing detention. 

This argument is of no moment because the appellant is 

not relying on section 5G1.3(b) alone but on the 

commentary to that section in application note 2. We 

therefore turn to the government's arguments against the 

validity of application note 2. 

The government contends that application note 2 is 

invalid for three reasons. First, it conflicts with section 

3585(b) which, in the government's view, confers sole 

authority on the BOP to award custody credit. Second, the 

_________________________________________________________________ 

2. For the same reason other cases the government cites are 

distinguishable. United States v. Brann, 990 F.2d 98 (3d Cir. 1993), dealt 

solely with whether the court rather than the BOP should award credit 

for presentencing home detention. In accord with Wilson, we held that 

the BOP was responsible. United States v. Pineyro, 112 F.3d 43 (2d Cir. 

1997), and United States v. McGee, 60 F.3d 1266 (7th Cir. 1995), dealt 

with unrelated state sentences. United States v. Cobleigh, 75 F.3d 242 

(6th Cir. 1996), dealt with credit for a period of time the defendant was 

released on his own recognizance. United States v. Jenkins, 38 F.3d 

1143 (10th Cir. 1994), dealt with credit for a period of in-home 

detention. United States v. Moore, 978 F.2d 1029 (8th Cir. 1992), dealt 

with credit for time served in state custody on state charges that were 

subsequently dismissed. 

 7 
provisions of application note 2 exceed the statutory 

authority of the Sentencing Commission. Third, upholding 

the note and allowing sentencing courts to grant credit 

along with the BOP will result in an unworkable scheme of 

shared authority. 

In its first argument, the government contends that the 

conflict between section 5G1.3(b) and section 3585(b) arises 

because application note 2 allows a sentencing court to 

grant credit when in light of section 3585(b) only the BOP 

has the authority to do so. The government acknowledges 

that generally a sentencing court must follow commentary 

to the Guidelines, see Stinson v. United States, 508 U.S. 36, 

113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), but asserts here 

that the commentary conflicts with section 3585(b) and is 

therefore invalid. Id. at 45, 113 S.Ct. at 1919, 123 L.Ed.2d 

at 608. See also United States v. Higgins, 128 F.3d 138, 

141 (3d Cir. 1997) ("[a] Guideline cannot trump a statute 

with which it conflicts.") (brackets added). 

We reject the government's position. In the instant case, 

the government would compare application note 2 solely to 

section 3585(b), but the situation is more complex than 

that. Under 18 U.S.C. S 3584(a), a district court has the 

authority to impose a concurrent sentence, but section 

3584(b) requires the court to consider the factors listed in 

18 U.S.C. S 3553(a). In turn, the latter section requires the 

court to consider "any applicable guidelines or policy 

statements issued by the sentencing Commission," as the 

Commission noted in its "Background" commentary to 

section 5G1.3. See 18 U.S.C. S 3553(a)(4)(A). Section 5G1.3 

was promulgated under the Sentencing Commission's 

authority, under 28 U.S.C. S 994(a)(1)(D), to issue

guidelines for the use of sentencing courts in determining 

whether multiple sentences "should be ordered to run 

concurrently or consecutively." Application note 2 is 

commentary to subsection (b) of guidelines section 5G1.3. 

We are thus not confronted with a bare conflict between 

statutory section 3585(b) and guidelines section 5G1.3(b), 

but with a potential conflict between the BOP's authority 

under section 3585(b) to grant credit for presentencing 

detention and the sentencing court's authority to impose a 

concurrent sentence. And the real issue is whether the 

 8 
sentencing court's authority must extend beyond the mere 

imposition of a concurrent sentence to the authority to 

impose a truly concurrent one, that is, a sentence that is 

not frustrated by the happenstance of when a defendant is 

sentenced in state and federal court. We believe a 

sentencing court has that authority under section 3584(a) 

and that application note 2 facilitates the court's authority. 

Moreover, as written, there is no conflict between the note 

and section 3585(b) because a district court can only award 

credit when the BOP will not do so. 

To begin with, the Supreme Court has noted that the

overall purpose of section 5G1.3 is "to mitigate the 

possibility that the fortuity of two separate prosecutions will 

grossly increase a defendant's sentence." Witte v. United 

States, 515 U.S. 389, 405, 115 S.Ct. 2199, 2209-10,

132 L.Ed.2d 351, 367 (1995). In Witte, the Court also 

stated: 

 There are often valid reasons why related crimes 

 committed by the same defendant are not prosecuted 

 in the same proceeding, and S 5G1.3 of the Guidelines 

 attempts to achieve some coordination of sentences 

 imposed in such situations with an eye toward having 

 such punishments approximate the total penalty that 

 would have been imposed had the sentences for the 

 different offenses been imposed at the same time (i.e., 

 had all of the offenses been prosecuted in a single 

 proceeding). See USSG S 5G1.3, comment., n. 3. 

Id. at 404-05, 115 S.Ct. at 2208, 132 L.Ed.2d at 367. In 

Witte the Court was discussing the 1992 version of the 

commentary, not the 1995 version that we are dealing with. 

However, the 1995 version does not differ materially from 

the current application note. The major difference is that 

application note 2 now explicitly recognizes that the court 

cannot grant credit when the BOP will do so. 

Our position is supported by other courts that have

considered the issue. In United States v. Kiefer, 20 F.3d 874 

(8th Cir. 1994), the Eighth Circuit held that a sentencing 

court had authority under section 5G1.3(b) to grant a 

defendant credit on his federal sentence for all the time he 

served, before the federal sentencing, in Minnesota state 

 9 
custody on a related state charge. Under 18 U.S.C. 

S 924(e)(1), the defendant was subject to a mandatory 

minimum federal sentence of 15 years (180 months). Under 

his plea agreement, he could not be sentenced to more than 

188 months. He had spent 14-and-one-half months in state 

custody. The district court applied section 5G1.3(b) but 

believed that it could not reduce the sentence below the 

mandatory minimum. Hence, instead of a sentence of 173- 

and-one-half-months, it imposed a sentence of 180 months. 

On appeal, the Eighth Circuit first rejected the 

government's argument that the defendant was seeking a 

sentence credit and hence under Wilson had to seek relief 

from the BOP. The court stated: 

 [I]n this appeal Kiefer seeks to invoke a Guidelines 

 provision to reduce his federal sentence. That is a 

 question for the sentencing court, and we 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. Therefore, we 

 agree with the district court that it had jurisdiction to 

 consider this S 5G1.3 issue. 

Id. at 875-76 (brackets added). The court also noted that: 

"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.' S 5G1.3, comment. (backg'd)." 

Then, turning to the precise issue presented, whether a 

mandatory minimum sentence prevents full application of 

section 5G1.3(b), the court stated: 

 Section 924(e)(1) was enacted after the Sentencing 

 Reform Act. The Reform Act provides that the district 

 courts must determine whether sentences should be 

 concurrent or consecutive. See 18 U.S.C.S 3584(b). In 

 doing so, the court "shall consider," among other 

 factors, "the kinds of sentence ... set forth in the 

 guidelines." 18 U.S.C. S 3553(a). Section 5G1.3 is part 

 of that sentencing regime. Since in this example Kiefer 

 was "imprisoned" by Minnesota for the identical 

 firearms offense, we conclude that there would be no 

 violation of the plain language of S 924(e)(1), and that 

 10 
 these various sentencing statutes would be properly 

 harmonized, if S 924(e)(1) were construed to permit the 

 sentencing court to give Kiefer a sentence credit in the 

 form of a reduced federal sentence under S 5G1.3(b). 

Id. at 876. The court remanded so that the sentencing 

court could exercise its discretion to award a full credit for 

the time spent in state custody. Kiefer was followed in 

United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), a case 

also dealing with a mandatory minimum sentence under 

section 924(e)(1). 

We adopt Kiefer's reasoning. Guidelines section 5G1.3(b) 

and application note 2 harmonize the court's discretion 

under section 3584 to make a federal sentence concurrent 

with other terms of imprisonment and the BOP's authority 

under section 3585(b) to award credit for presentence 

custody. There is no conflict between the two because 

application note 2 restricts the credit the sentencing court 

can award to time that will not be awarded by the BOP. 

And the court must be able to award this credit to make 

the sentences truly concurrent. Otherwise, the concurrent 

sentencing principles of section 3584 would be frustrated. 

See Kiefer, 20 F.3d at 876. 

The government criticizes Kiefer and Drake as dealing 

with the issue in dicta and in a conclusory fashion. 

However, Kiefer's ruling on this issue was a necessary part 

of its decision to reverse the district court and it made plain 

why it ruled as it did, to harmonize the sentencing court's 

authority with that of the BOP. 

In regard to the government's second argument, based on 

the foregoing, it follows that the promulgation of application 

note 2 did not exceed the Commission's authority since it 

effectuates the sentencing court's discretion to impose a 

concurrent sentence. As noted above, under 18 U.S.C. 

S 3584(a) the sentencing court has the discretion to impose 

a concurrent sentence. In doing so, it must consider the 

factors listed in 18 U.S.C. S 3553(a). Among these factors 

are guidelines and commentary from the Sentencing 

Commission. Under 28 U.S.C. S 994(a)(1)(D), the 

Commission has the authority to promulgate guidelines for 

the determination of whether a sentence shall run 

 11 
concurrently or consecutively. A sentence cannot be

concurrent if the random chance of when multiple 

sentences are imposed results in a defendant serving, 

contrary to the intent of the sentencing court, additional 

and separate time on one sentence that was meant to be 

served at the same time as another sentence. 

As the Supreme Court also indicated, the government's 

position also introduces a certain fortuity into the 

sentencing process because under the BOP's interpretation 

of section 3585(b), credit for time served before imposition 

of the federal sentence will depend on when the state 

sentence was imposed. For example, in the instant case, if 

New Jersey had sentenced the appellant on September 22, 

1997, or October 22, 1997, rather than on August 22, 

1997, appellant would have received credit on his federal 

sentence for the additional one- or two-month period 

because this was time that he was not yet serving on his 

state sentence and hence allowable as a credit against the 

federal sentence. Yet, because he was actually sentenced on 

August 22, 1997, he received a smaller credit. Actual time 

of imprisonment should not turn on the happenstance of 

the scheduling of sentencing dates.3 

The government's final argument is that a scheme of

shared authority over sentence credits by the sentencing 

court and the BOP is unworkable. The government points 

out that section 5G1.3(b), in allowing the sentencing court 

to grant a credit for time that will not be credited by the 

BOP, requires the sentencing court to predict what credit 

will be awarded by the BOP. The government argues that 

this will not always be readily apparent to a sentencing 

court but that the BOP can be accurate in its award of 

credit because of its administrative expertise and because 

it has the assistance of its Sentencing Computation

Manual. 

As an example, the government argues that in the instant 

case, despite the language on the face of section 3585(b) 

_________________________________________________________________ 

3. We also reject the government's contention that, because the example 

used concerns relevant conduct, the note applies only to credit for 

relevant conduct. The example is just an example. The note broadly 

refers to credit for time that will not be credited by the BOP. 

 12 
prohibiting credit for time served on another sentence, the 

BOP did award the appellant credit for about four months 

and two weeks, essentially the period between the date of 

his arrest on the charges and the date of his New Jersey 

sentencing, even though the appellant received credit for 

this time on his New Jersey sentence. These are so-called 

Willis credits, named after Willis v. United States, 438 F.2d 

923 (5th Cir. 1971). The government also points out that 

the BOP refused to award credit for the additional 10- 

month period because the BOP manual forbids it. 

The government stresses that a district court, in relying 

only on section 3585(b) could easily make the wrong

prediction as to what credit will be awarded. Further, 

"[e]ven if the district courts had the time or resources to 

decipher the Bureau of Prison's voluminous and highly 

technical Sentencing Computations Manual," (government's 

brief at p. 28), the government argues that the court's lack 

of expertise will sometimes lead to a mistake, a mistake 

that would be compounded because neither the government 

nor the defendant would have any recourse under 

application note 2 from such an error. 

We reject this argument. Although the government 

contends that the computation of sentencing credits is 

fraught with difficulty, the only example it raises is the 

instant case, which presents a straightforward calculation. 

Under section 5G1.3(b), the district court does not award a 

Willis credit (because this is time that will be awarded by 

the BOP) but does award credit for the remainder of the 

prefederal sentencing time (because the BOP cannot award 

this under section 3585(b)). We note that the courts in 

Kiefer and Drake did not see any difficulty in applying 

section 5G1.3(b) nor did the courts in United States v. Bell, 

28 F.3d 615 (7th Cir. 1994), or United States v. Hicks, 4 

F.3d 1358 (6th Cir. 1993), cases in which the courts also 

applied section 5G1.3(b). 

Contrary to the government's position, any error in the 

section 5G1.3(b) sentence adjustment can be corrected on 

direct appeal. Under 18 U.S.C. S 3742(a)(2), the defendant 

can appeal an incorrect application of the sentencing 

guidelines and under section 3742(b)(2), the government 

may do the same. 

 13 
III. 

For the foregoing reasons, we will vacate the district 

court's sentencing order and remand with direction that the 

court follow the dictates of application note 2 to U.S.S.G. 

S 5G1.3(b) in resentencing the appellant. 

 14 
STAPLETON, Circuit Judge, Concurring: 

I join the opinion of the Court. 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. A sentencing judge is charged with 

determining the length of any sentence of incarceration to 

be served. In the course of doing so, it may impose a lesser 

sentence than it otherwise would because of any number of 

relevant factors in the case. After a defendant has been 

sentenced to a term of incarceration, the custodian must 

determine when the sentence imposed will have been 

satisfied. In the course of doing so, the custodian may give 

"credit" against the sentence for such things as presentence 

detention, good behavior, etc. 

In Chapter 35 of Title 18, "giving credit" is used as a term 

of art referred only to the latter form of benefit. We agree 

with the Eighth and Ninth Circuit Courts of Appeal that the 

Supreme Court in Wilson was referring only to the latter 

form of benefit when it held that only the Bureau of Prisons 

is authorized by S 3585(b) to "give credit" against a 

previously imposed sentence. While it is true, as the 

government stresses, that the effect upon the defendant 

may be the same whether he receives a sentence shortened 

to reflect presentence detention or a sentence not so 

shortened followed by credit for such detention, we cannot 

ignore the fact that "giving credit" is used as a term of art 

in S 3585(b) and is not mentioned at all in S 5G1.3(b). 

As the opinion of the Court explains, Congress' 

sentencing scheme assigns to the sentencing judge the task 

of determining whether the sentence to be imposed shall 

run consecutively or concurrently with a previously

imposed sentence. In the specific situation where the 

conduct for which a defendant is being sentenced has 

resulted in a previously imposed sentence, S 5G1.3(b), 

utilizing the authority granted by S 3584(b), makes a policy 

choice that the total time served for the conduct not vary 

depending on the fortuity of when the two sentences are 

imposed. It accomplishes this by providing (a) that the new 

sentence will run concurrently with the undischarged term 

 15 
of the prior sentence, and (b) that the new sentence will be 

reduced by an amount equal to the time previously served 

on the prior sentence if the Court determines that the 

Bureau of Prisons will not give credit for such time under 

S 3585(b).1 We do not find this policy choice unauthorized 

by the Sentencing Reform Act or inconsistent with 

Congress' intent that, once a sentence is imposed, the 

Attorney General or its designee have sole authority to 

determine when that sentence will be discharged. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

1. Contrary to the government's suggestion, our decision today will not 

require that district courts master the BOP manual on sentencing credits 

and predict how it will be applied in a multitude of new situations. 

Section 3585(b) applies generally to credit for all kinds of pretrial 

detention and specifically forecloses the BOP from awarding credit for 

time that has been "credited against another sentence." U.S.S.G. 

S 5G1.3(b) applies to a limited universe of cases in which the prior 

detention is attributable to service of a prior sentence that should run 

concurrently with the one being imposed. In at least the vast majority of 

S 5G1.3(b) cases, the BOP will be foreclosed from granting a relevant 

credit because the time previously served will have been credited towards 

another sentence. 

 16