1

 As explained in United States v. Booker, 2006 WL 287860 (N.D. Fla. February 6,

2006), when a prisoner is “produced for prosecution in federal court pursuant to a federal writ of

habeas corpus ad prosequendum . . . the state retains primary jurisdiction over the prisoner, and

federal custody commences only when the state authorities relinquish the prisoner on satisfaction

of the state obligation.” Id. at *1. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

)

)

vs. ) CRIMINAL ACTION 07-00199-KD

)

JERMAINE ANTONIO PUGH, )

)

Defendant. )

ORDER

This action is before the Court on defendant Jermaine Antonio Pugh’s motion for nunc

pro tunc designation for service of concurrent federal and state sentences (doc. 68). Upon

consideration and for the reasons set forth herein, defendant’s motion is DENIED.

The federal grand jury indicted Pugh in June 2007. In May 2008 Pugh was incarcerated

at the Mobile County Metro Jail on an unrelated offense. A writ of habeas corpus ad

prosequendum issued from this Court and Pugh was taken into custody by the United States

Marshal for federal prosecution. At this point, Pugh was “on loan” from the State of Alabama.1

On October 14, 2008, Pugh was sentenced by this Court to a term of fifty months each as to three

counts with the terms to run concurrent. The sentence was not imposed to run concurrent with

the as yet un-imposed state court sentence. The Marshal returned Pugh to state custody. In

December 2008, State of Alabama Circuit Court Judge John Lockett sentenced Pugh to a term of

thirty years each as to three state court convictions with the terms to run concurrent with each

Case 1:07-cr-00199-KD-M Document 70 Filed 03/09/10 Page 1 of 3
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other and concurrent with the previously imposed federal sentence. Pugh is now incarcerated

with the Alabama Department of Corrections (ADC) at the Bibb County Correctional Facility.

Pugh titled his motion as one for nunc pro tunc designation of concurrent federal and

state sentences and contains two requests. First, Pugh asks the Court to amend his sentence nunc

pro tunc to run the fifty months concurrent with his state court sentence. However, this Court

does not possess “some sort of inherent authority to modify a sentence” United States v.

Diaz-Clark, 292 F.3d 1310, 1317-18 (11th Cir. 2002), and generally may not modify a sentence

once it has been imposed. 18 U.S.C. § 3582(c); see also United States v. Moreno, 421 F.3d 1217,

1219 (11th Cir. 2005). This Court may amend a sentence only in specific circumstances, none of

which are present here. “By statute, [this Court] may modify a term of imprisonment only (1)

upon motion by the Director of the Bureau of Prisons, (2) ‘to the extent otherwise expressly

permitted by statute or by Rule 35,’ or (3) in certain limited circumstances where a sentencing

guidelines range has subsequently been lowered by the Sentencing Commission.” United States

v. Dent, 2006 WL 2523435, 1 (S.D. Ala. Aug. 29, 2006) (footnotes omitted) (citing 18 U.S.C. §

3582(c) and United States v. McGranahan, 2006 WL 460929, *1 (11th Cir. Feb. 27, 2006)

(explaining that district court may correct sentence under Rules 35 or 36, or may modify a

sentence under § 3582(c) and citing United States v. Portillo, 363 F.3d 1161, 1164 (11th

Cir.2004) (“It is clear in this Circuit that Rule 36 may not be used to make a substantive

alteration to a criminal sentence.”)). Therefore, this Court lacks jurisdiction to grant a nunc pro

tunc amendment to Pugh’s sentence.

Second, Pugh asks this Court to designate a federal prison as the place he should serve

the remainder of his federal sentence because his state sentence has been ordered to run

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2

 The undersigned called Judge Lockett and asked him to review Pugh’s imposed state

sentence to determine whether it had been executed in the manner Judge Lockett intended. 

3

concurrent with his federal sentence. Pugh relies upon 18 U.S.C. § 3621(b), but in § 3621(b),

Congress gave the Bureau of Prisons (BOP), not the Court, the authority to designate Pugh’s

place of imprisonment. Section 3621(b) does not give the Court any authority to designate

where Pugh should be imprisoned or to order the ADC to place Pugh in federal custody with the

BOP to complete his federal sentence. Based upon the facts presented in this case, the Court

does not have authority to order the ADC to transfer Pugh to the BOP. However, the Court has

informally referred this matter to Judge Lockett, Pugh’s state court sentencing judge, for his

consideration.2

Accordingly, since the Court is without authority to grant the relief which Pugh seeks, his

motion is DENIED.

DONE and ORDERED this the 8th day of March, 2010.

/s / Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE 

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