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. e du/thir dc ir c uit_1999/25Filed 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 Seni or District Judge for the Middle District of Pennsylvania, sitting by des ignation.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 re fusal at sentencing to follow commentary to U.S.S.G. S 5G 1.3(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 custod y, thereby essentially giving him credit for that peri od of imprisonment before the federal sentence was impose d. Dorsey also asserts that the district court's actio n 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 o nly the Bureau of Prisons has the authority to grant senten cing credits, we will reverse and remand for resentencin g, and direct that the court comply with the procedure set forth in the application note. Our resolution of this guidel ines issue renders consideration of the double jeopardy claim

unnecessary.

I.

On May 7, 1996, the appellant was arrested in Newar k, New Jersey, and charged with illegal possession of a firearm. He was sent to a New Jersey state prison t he next day for a parole violation arising from this firear ms 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

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

the community from the sentence he was serving in s tate 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 d etainer against him.

Appellant pled guilty to the state charge. On Augus t 22, 1997, he was sentenced in state court to five years imprisonment. In sentencing the appellant, the stat e court credited him with the 134 days he had spent in stat e custody from April 11, 1997, to the date of sentenc ing.

The appellant also pled guilty to the federal offen se. On May 12, 1998, he was sentenced to 115 months. Invok ing application note 2 to U.S.S.G. S 5G1.3(b), the appe llant sought credit for the entire time he had spent in s tate prison before his federal sentencing. This was a pe riod of about 13 months, from April 11, 1997 (the date he w as arrested on both the federal and state charges aris ing from the May 1996 firearms offense) to May 12, 1998, the date of his federal sentencing. However, the court refus ed the appellant's request, ruling that it had no authorit y to do so and that only the Bureau of Prisons (BOP) could giv e credit for the time he was incarcerated before imposition of sentence. As required by U.S.S.G. S 5G1.3(b), the d istrict court did order that the sentence run concurrently with the state sentence.1 And, as a concession to the appell ant, the court noted on its judgment order that it had not d ecided 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 pa rt of the

___________________________________________________ ______________

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

If . . . the undischarged term of imprisonm ent resulted from offense(s) that have been fully taken into a ccount in the
determination of the offense level for the i nstant offense, the
sentence for the instant offense shall be im posed to run concurrently to the undischarged term of imp risonment.

Here the undischarged term of imprisonment was the New Jersey
sentence for the same firearms offense that was the subject of the federal

offense.

313-month period. The BOP gave him credit for the fo llowing

periods of prefederal-sentencing incarceration, tot aling about four months and two weeks: (1) May 7, 1996, t he date of his apprehension on the firearms offense (f or which he began serving a state parole-violation term the next day), and (2) a period from April 11, 1997, the date he w as arrested on the federal and state firearms charges, to August 21, 1997, the day before his state-court sen tencing. However, it refused to give him credit for the appr oximately 10-month period between his state sentencing, Augus t 22, 1997, and his federal sentencing, May 12, 1998. The parties agree that no credit was given for the latt er period because 18 U.S.C. S 3585(b) prohibits the BOP from granting credit for time "that has been granted aga inst another sentence," and this 10-month period was tim e 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 sent encing]").

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 guid eline section only requires that the sentencing court run the federal sentence concurrently to the undischarged t erm of the other sentence. The district court complied wit h this guideline and made the federal sentence concurrent with the New Jersey sentence.

The controversy arises from application note 2 to s ection 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, appl ication note 2 would require, at least partially, the resul t the appellant sought at sentencing. The application not e, captioned "Adjusted concurrent sentence--subsection (b) cases," provides:

When a sentence is imposed pursuant to subse ction (b), the court should adjust the sentence fo r any period of imprisonment already served as a result o f the

4conduct taken into account in determining th e

guideline range for the instant offense if t he court determines that period of imprisonment will not be credited to the federal sentence by the Bure au of
Prisons.

The note then immediately follows with an example:

The defendant is convicted of a federal offe nse charging the sale of 30 grams of cocaine. Under S 1B1 .3 (Relevant Conduct), the defendant is held ac countable for the sale of an additional 15 grams of co caine, an
offense for which the defendant has been con victed and
sentenced in state court.

Continuing with the example, the note further assum es that the guideline range is 10 to 16 months and tha t the
defendant was sentenced in state court to nine mont hs 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 appropr iate, it should shorten that sentence to seven months and, i n this way, give credit on the federal sentence for the si x months already served on the state sentence. The applicati on note closes by advising the sentencing court that it sho uld note on the sentencing order what it has done so that th e adjustment is not confused with a departure from th e guideline range but rather recognized as a "credit[ ]" under S 5G1.3(b) for time served "that will not be credit ed to the federal sentence under 18 U.S.C. S 3585(b)." (brack ets added).

In the instant case, if the district court had appl ied 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 appel lant'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 t o the federal sentence by the BOP, as the BOP's later dec ision confirmed, because it represented time that the app ellant was already serving on his state sentence.

5Thus, we would have to reverse and remand for

resentencing to allow for this credit unless the go vernment is correct that application note 2 is invalid and t hat the district court correctly refused to follow it. Our review of the district court's legal interpretation of section 35 85(b) and the guidelines is plenary. See United States v. Wil liamson, 154 F.3d 504 (3d Cir. 1998). We turn now to the government's arguments.

The government first contends that the district cou rt was correct because under 18 U.S.C. S 3585(b), as const rued by the Supreme Court in United States v. Wilson, 503 U .S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992), only t he Attorney General (by way of delegation to the BOP) has the authority to award credit for time served before fe deral 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 s pent in official detention prior to the date the sen tence

commences--

(1) as a result of the offense for which th e sentence was imposed; or

(2) as a result of any other charge for whi ch the
defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another s entence.

18 U.S.C. S 3585(b). In Wilson, the Supreme Court h eld that, despite the ambiguity as to who was to award credit for time served, only the BOP has the authority und er section 3585(b) to award such credit. However, the government reads too much into Wilson.

The government argues that Wilson controls here bec ause 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 be en 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 tha t they

6were unrelated offenses. See United States v. Wilso n, 916

F.2d 1115, 1116 (6th Cir. 1990) (after noting the f ederal arrest for attempted bank robbery, noting that the defendant had been arrested by state authorities "apparently in connection with various other robber ies") (emphasis added). Wilson does not apply here becaus e 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 f or 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 sta te 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 ter m 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. W e therefore turn to the government's arguments agains t 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 so le authority on the BOP to award custody credit. Secon d, the

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2. For the same reason other cases the government c ites are distinguishable. United States v. Brann, 990 F.2d 9 8 (3d Cir. 1993), dealt solely with whether the court rather than the BOP s hould award credit for presentencing home detention. In accord with Wi lson, 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 (7t h Cir. 1995), dealt
with unrelated state sentences. United States v. Co bleigh, 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 peri od of in-home detention. United States v. Moore, 978 F.2d 1029 (8 th Cir. 1992), dealt with credit for time served in state custody on sta te charges that were subsequently dismissed.

7provisions of application note 2 exceed the statuto ry

authority of the Sentencing Commission. Third, upho lding the note and allowing sentencing courts to grant cr edit along with the BOP will result in an unworkable sch eme 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 cour t to grant credit when in light of section 3585(b) only the BOP has the authority to do so. The government acknowle dges that generally a sentencing court must follow comme ntary to the Guidelines, see Stinson v. United States, 50 8 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, 12 3 L.Ed.2d at 608. See also United States v. Higgins, 128 F.3d 138, 141 (3d Cir. 1997) ("[a] Guideline cannot trump a s tatute with which it conflicts.") (brackets added).

We reject the government's position. In the instant case, the government would compare application note 2 sol ely to section 3585(b), but the situation is more complex than that. Under 18 U.S.C. S 3584(a), a district court h as the authority to impose a concurrent sentence, but sect ion 3584(b) requires the court to consider the factors listed in 18 U.S.C. S 3553(a). In turn, the latter section re quires the court to consider "any applicable guidelines or pol icy 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). Secti on 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 dete rmining whether multiple sentences "should be ordered to ru n 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 bet ween statutory section 3585(b) and guidelines section 5G 1.3(b), but with a potential conflict between the BOP's aut hority under section 3585(b) to grant credit for presenten cing detention and the sentencing court's authority to i mpose a concurrent sentence. And the real issue is whether the

8sentencing court's authority must extend beyond the mere

imposition of a concurrent sentence to the authorit y to impose a truly concurrent one, that is, a sentence that is not frustrated by the happenstance of when a defend ant is
sentenced in state and federal court. We believe a sentencing court has that authority under section 3 584(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 on ly 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 th e possibility that the fortuity of two separate prose cutions 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 al so stated:

There are often valid reasons why related cr imes committed by the same defendant are not pros ecuted in the same proceeding, and S 5G1.3 of the G uidelines attempts to achieve some coordination of sen tences imposed in such situations with an eye towar d having such punishments approximate the total penal ty that would have been imposed had the sentences fo r 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 36 7. In Witte the Court was discussing the 1992 version of the commentary, not the 1995 version that we are dealin g with. However, the 1995 version does not differ materiall y from the current application note. The major difference is that application note 2 now explicitly recognizes that t he 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, 2 0 F.3d 874 (8th Cir. 1994), the Eighth Circuit held that a sen tencing court had authority under section 5G1.3(b) to grant a defendant credit on his federal sentence for all th e time he served, before the federal sentencing, in Minnesota state

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

S 924(e)(1), the defendant was subject to a mandato ry minimum federal sentence of 15 years (180 months). Under his plea agreement, he could not be sentenced to mo re 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 belo w the mandatory minimum. Hence, instead of a sentence of 173- and-one-half-months, it imposed a sentence of 180 m onths.

On appeal, the Eighth Circuit first rejected the government's argument that the defendant was seekin g 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 Gu idelines provision to reduce his federal sentence. Th at is a question for the sentencing court, and we fi nd nothing in Wilson suggesting that the Attorney Gener al's authority under S 3585(b) limits a sentencin g court's power to apply S 5G1.3 of the Guidelines. Th erefore, we agree with the district court that it had ju risdiction to
consider this S 5G1.3 issue.

Id. at 875-76 (brackets added). The court also note d that: "In general, S 5G1.3 is intended to result in a fed eral sentence `that most nearly approximates the sentenc e 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, wheth er a mandatory minimum sentence prevents full applicatio n of section 5G1.3(b), the court stated:

Section 924(e)(1) was enacted after the Sent encing Reform Act. The Reform Act provides that the district
courts must determine whether sentences shou ld be
concurrent or consecutive. See 18 U.S.C.S 35 84(b). In doing so, the court "shall consider," among other factors, "the kinds of sentence ... set fort h in the guidelines." 18 U.S.C. S 3553(a). Section 5G 1.3 is part of that sentencing regime. Since in this exa mple Kiefer was "imprisoned" by Minnesota for the identi cal firearms offense, we conclude that there wou ld be no violation of the plain language of S 924(e)( 1), and that

10these various sentencing statutes would be p roperly

harmonized, if S 924(e)(1) were construed to permit the sentencing court to give Kiefer a sentence c redit in the

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

Id. at 876. The court remanded so that the sentenci ng court could exercise its discretion to award a full credit for the time spent in state custody. Kiefer was followe d in United States v. Drake, 49 F.3d 1438 (9th Cir. 1995 ), a case also dealing with a mandatory minimum sentence unde r section 924(e)(1).

We adopt Kiefer's reasoning. Guidelines section 5G1 .3(b) and application note 2 harmonize the court's discre tion
under section 3584 to make a federal sentence concu rrent with other terms of imprisonment and the BOP's auth ority under section 3585(b) to award credit for presenten ce custody. There is no conflict between the two becau se application note 2 restricts the credit the sentenc ing court can award to time that will not be awarded by the B OP.
And the court must be able to award this credit to make the sentences truly concurrent. Otherwise, the conc urrent sentencing principles of section 3584 would be frus trated. See Kiefer, 20 F.3d at 876.

The government criticizes Kiefer and Drake as deali ng with the issue in dicta and in a conclusory fashion

. However, Kiefer's ruling on this issue was a necess ary part
of its decision to reverse the district court and i t 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, base d on the foregoing, it follows that the promulgation of application note 2 did not exceed the Commission's authority si nce it effectuates the sentencing court's discretion to im pose a concurrent sentence. As noted above, under 18 U.S.C

. S 3584(a) the sentencing court has the discretion t o impose a concurrent sentence. In doing so, it must conside r 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 guidelin es for
the determination of whether a sentence shall run

11concurrently or consecutively. A sentence cannot be

concurrent if the random chance of when multiple sentences are imposed results in a defendant servin g, contrary to the intent of the sentencing court, add itional 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 th e sentencing process because under the BOP's interpre tation of section 3585(b), credit for time served before i mposition of the federal sentence will depend on when the sta te sentence was imposed. For example, in the instant c ase, 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 f ederal sentence for the additional one- or two-month perio d because this was time that he was not yet serving o n his state sentence and hence allowable as a credit agai nst the federal sentence. Yet, because he was actually sent enced on August 22, 1997, he received a smaller credit. Actu al 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 sente ncing court and the BOP is unworkable. The government poi nts out that section 5G1.3(b), in allowing the sentenci ng court to grant a credit for time that will not be credite d by the BOP, requires the sentencing court to predict what credit will be awarded by the BOP. The government argues t hat this will not always be readily apparent to a sente ncing
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 in stant case, despite the language on the face of section 3 585(b)

___________________________________________________ ______________

3. We also reject the government's contention that, because the example used concerns relevant conduct, the note applies on ly to credit for relevant conduct. The example is just an example. T he note broadly
refers to credit for time that will not be credited by the BOP.

12prohibiting credit for time served on another sente nce, the

BOP did award the appellant credit for about four m onths and two weeks, essentially the period between the d ate of his arrest on the charges and the date of his New J ersey sentencing, even though the appellant received cred it 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 r elying only on section 3585(b) could easily make the wrong prediction as to what credit will be awarded. Furth er, "[e]ven if the district courts had the time or reso urces to decipher the Bureau of Prison's voluminous and high ly technical Sentencing Computations Manual," (governm ent's brief at p. 28), the government argues that the cou rt's lack of expertise will sometimes lead to a mistake, a mi stake that would be compounded because neither the govern ment 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 calc ulation. Under section 5G1.3(b), the district court does not award a Willis credit (because this is time that will be aw arded 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 court s in Kiefer and Drake did not see any difficulty in appl ying section 5G1.3(b) nor did the courts in United State s v. Bell, 28 F.3d 615 (7th Cir. 1994), or United States v. Hi cks, 4 F.3d 1358 (6th Cir. 1993), cases in which the court s also applied section 5G1.3(b).

Contrary to the government's position, any error in the section 5G1.3(b) sentence adjustment can be correct ed on direct appeal. Under 18 U.S.C. S 3742(a)(2), the de fendant can appeal an incorrect application of the sentenci ng guidelines and under section 3742(b)(2), the govern ment may do the same.

13III.

For the foregoing reasons, we will vacate the distr ict 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.

14STAPLETON, Circuit Judge, Concurring:

I join the opinion of the Court. I write separately to note that much of the conflict which the government perc eives 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 def endant may receive. A sentencing judge is charged with determining the length of any sentence of incarcera tion to be served. In the course of doing so, it may impose a lesser sentence than it otherwise would because of any num ber 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 pr esentence 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 l atter form of benefit when it held that only the Bureau o f Prisons is authorized by S 3585(b) to "give credit" against a previously imposed sentence. While it is true, as t he government stresses, that the effect upon the defen dant may be the same whether he receives a sentence shor tened 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 t erm 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 t he task of determining whether the sentence to be imposed s hall run consecutively or concurrently with a previously imposed sentence. In the specific situation where t he conduct for which a defendant is being sentenced ha s 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 n ot 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 undischarge d term

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

reduced by an amount equal to the time previously s erved on the prior sentence if the Court determines that the Bureau of Prisons will not give credit for such tim e under S 3585(b).1 We do not find this policy choice unaut horized by the Sentencing Reform Act or inconsistent with Congress' intent that, once a sentence is imposed, the Attorney General or its designee have sole authorit y 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 dec ision today will not require that district courts master the BOP manual on sentencing credits and predict how it will be applied in a multitude o f 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 senten ce." U.S.S.G. S 5G1.3(b) applies to a limited universe of cases i n which the prior detention is attributable to service of a prior sen tence that should run concurrently with the one being imposed. In at leas t the vast majority of S 5G1.3(b) cases, the BOP will be foreclosed from g ranting a relevant credit because the time previously served will have been credited towards

another sentence.

16