2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-16-2011

George Blood v. B. Bledsoe

Precedential or Non-Precedential: Precedential

Docket No. 11-1206

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1206

___________

GEORGE WILLIAM BLOOD,

Appellant

v.

WARDEN B. A. BLEDSOE

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 10-00141)

District Judge: Honorable Richard P. Conaboy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 11, 2011

Before: RENDELL, FUENTES and SMITH, Circuit Judges

(Opinion filed: July 12, 2011)

George William Blood

Appellant Pro se
2

Stephen R. Cerutti, II

Mark E. Morrison

Office of United States Attorney 

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108-0000

Counsel for Appellee

___________

OPINION

___________

PER CURIAM

George William Blood, a prisoner incarcerated at the 

Federal Prison Camp in Lewisburg, Pennsylvania, appeals pro 

se from the District Court‟s denial of his habeas petition. 

Blood contends that the federal Bureau of Prisons (“BOP”) 

miscalculated the aggregate term for his two federal sentences 

and failed to award him credit due under 18 U.S.C. § 3585(b). 

For the following reasons, we will affirm.

I.

On February 9, 2004, Blood reported to the Federal 

Prison Camp in Lewisburg to serve a 60-month term of 

imprisonment imposed by the Middle District of Tennessee

on two convictions for possession of forged securities. While 

serving that sentence, he was charged and convicted of

unrelated offenses in the District of Delaware. Before the 

Delaware court could sentence Blood, the United States Court 
3

of Appeals for the Sixth Circuit vacated his Tennessee 

sentence in light of United States v. Booker, 543 U.S. 220 

(2005). See United States v. Blood, 435 F.3d 612, 616 (6th

Cir. 2006).

At a March 13, 2006 sentencing hearing on the 

Delaware convictions, the Delaware court stated:

I recognize that by circumstances that are 

entirely fortuitous . . . not in my control, your 

sentence in the Middle District of Tennessee 

has been vacated and that case has been 

remanded for resentencing. So the time you 

served to date will be credited to this 

conviction, so whatever I give you, you have 

already served a couple years on and it will be 

to up to a judge [in Tennessee] to decide 

whether or not the sentence you receive for 

[your Tennessee convictions] is to be 

consecutive to the sentence that I give or 

concurrent with it.

(Habeas Pet. Ex. G-3.) The Delaware court then imposed a 

sentence of 78 months of imprisonment. On August 14, 

2006, the Tennessee court resentenced Blood to 51 months of 

imprisonment to be served concurrently with his Delaware 

sentence.

After his Tennessee sentence was imposed, the BOP 

calculated Blood‟s total term of incarceration. It considered

the Tennessee sentence to have commenced on February 9, 

2004 – the date Blood began serving on the original, vacated 
4

Tennessee sentence – and the Delaware sentence to have

commenced on the day it was imposed, March 13, 2006. The 

BOP then aggregated the two sentences such that only about 

half of the Tennessee sentence overlapped with the Delaware 

sentence, resulting in a combined total term of 103 months 

and 4 days. In other words, the BOP considered the 25 

months and 4 days that Blood served prior to the imposition 

of the Delaware sentence to count solely toward the 

Tennessee sentence. After crediting him for seven days spent

in custody after his initial Tennessee arrest, the BOP 

calculated Blood‟s full term date to be September 5, 2012. 

His projected release date with good time credit is July 29, 

2011. 

After exhausting his administrative remedies, Blood 

filed a habeas petition in the District Court, pursuant to 28 

U.S.C. § 2241. He argued that the BOP failed to credit the 25 

months and 11 days he served pursuant to his vacated 

Tennessee sentence (the “disputed time”)1toward his 

Delaware sentence. According to Blood, if the BOP had 

calculated his sentence correctly, he would have been 

released well over a year ago after accounting for good time 

credit. The case was referred to a Magistrate Judge who 

recommended denying the petition. Blood objected to the 

Magistrate Judge‟s Report and Recommendation (R&R), but 

the District Court overruled his objections and denied the

 

1

That time is comprised of the seven days Blood spent in custody 

after his arrest plus the time he spent incarcerated between 

February 9, 2004, when he reported for service of the Tennessee 

sentence, and March 13, 2006, when he was sentenced on the 

Delaware convictions.
5

petition. 

Blood timely appealed.2 We ordered expedited 

briefing in light of his impending release. Specifically, we 

asked the parties to address the possibility that the BOP‟s 

sentencing manual was internally inconsistent, as discussed 

further below.

II.

The District Court had jurisdiction over Blood‟s 

habeas petition pursuant to 28 U.S.C. § 2241. See Woodall v. 

Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005). 

We have jurisdiction under 28 U.S.C. § 1291. We review the 

District Court‟s denial of Blood‟s habeas petition de novo. 

 

2 After the Magistrate Judge issued the R&R, Blood filed a petition 

for a writ of mandamus in this Court, requesting immediate 

release. We concluded that mandamus relief was inappropriate but 

noted that we might consider a renewed petition if the District 

Court failed to timely rule on Blood‟s objections to the R&R. 

Once the District Court ruled on his objections, Blood filed a 

“renewal petition” with this Court, which the Clerk forwarded to 

the District Court to be docketed as a notice of appeal. Blood 

thereafter submitted a letter, which we will construe as a motion 

that we take judicial notice of the submissions he filed in 

connection with his prior petition, and a letter motion objecting to 

any recharacterization of his “renewal” as a notice of appeal. We 

will deny those motions. Blood‟s “renewal petition” is most 

appropriately treated as a notice of appeal because it seeks review 

of the District Court‟s judgment. And since his prior submissions 

duplicate the record submitted in connection with the instant 

appeal, there is no need for us to take judicial notice of them.
6

See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007). 

III.

Blood contends that the BOP disregarded the Delaware 

court‟s intention to credit the disputed time toward his 

Delaware sentence. We, however, agree with the District 

Court that the Delaware court‟s statement, “the time you 

[Blood] served to date will be credited to this conviction,” 

when read in context, merely reflects the Delaware court‟s 

prediction that the BOP would credit the disputed time toward 

the Delaware sentence under 18 U.S.C. § 3585(b). See

Ruggiano v. Reish, 307 F.3d 121, 134 (3d Cir. 2002) (“In 

interpreting the oral statement [of a sentencing judge], we 

have recognized that the context in which this statement is 

made is essential.”), superseded on other grounds by, 

U.S.S.G. § 5G1.3(c) app. Note 3(E) (2003). Indeed, the 

Delaware court explained that any such credit resulted from 

“circumstances that are entirely fortuitous, . . . not in [the 

court‟s] control,” namely, the Sixth Circuit remand. Then, 

the Delaware court transitioned from the topic of credit by 

stating, “for what is before me, though, this is the sentence 

that I intend to impose . . . ,” thereby segmenting the court‟s 

intended sentence from its discussion of credit. 

Furthermore, district courts have no authority to credit 

time toward a sentence under § 3585(b) – that function rests 

in the sole authority of the BOP.3 See United States v. 

 

3

The BOP could have credited the disputed time toward the 

Delaware sentence, provided the time was not also credited toward 

the Tennessee sentence, because Blood was arrested for the 
7

Wilson, 503 U.S. 329, 333-35 (1992). We believe that if the 

Delaware court intended to fashion a sentence that would 

effectively “credit” Blood with the disputed time, it would 

have explicitly granted a downward departure in accordance 

with § 5G1.3(c) of the United States Sentencing Guidelines.4 

Our conclusion that the Delaware court lacked any 

specific intent vis-à-vis the disputed time, however, does not 

answer whether the BOP properly calculated Blood‟s 

sentence. Blood contends that because the original Tennessee 

sentence was vacated on appeal, his post-remand Tennessee 

 

Tennessee charges in 2002, after he committed the Delaware 

offenses in 2000. See § 3585(b)(2) (requiring credit for time 

served “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 appears to be the calculation the Delaware 

court envisioned.

4

In Ruggiano, upon which Blood relies, we authorized district 

courts to grant credit for time served on a prior undischarged term 

of imprisonment under § 5G1.3(c). 307 F.3d at 131. However, § 

5G1.3 was amended in 2003 to clarify that subsection (c) does not 

authorize such an adjustment unless the court grants a downward 

departure. See U.S.S.G. § 5G1.3 app. note 3(E). That amendment 

was in effect in 2006, when the Delaware court sentenced Blood, 

and we believe that if the Delaware court had intended to invoke 

the provision, it would have indicated as much. See id. (“To avoid 

confusion with the [BOP‟s] exclusive authority provided under 18 

U.S.C. § 3585(b) to grant credit for time served under certain 

circumstances, the Commission recommends that any downward 

departure under this application note be clearly stated in the 

Judgment in a Criminal Case Order as a downward departure 

pursuant to § 5G1.3(c) . . . .”).
8

sentence could not have commenced until he was resentenced 

on August 14, 2006. And since neither the original nor the 

post-remand Tennessee sentence was in effect at the time he 

was sentenced by the Delaware court, Blood argues that the 

BOP was required to credit the disputed time toward his 

Delaware sentence – despite the fact that he would inevitably 

be resentenced on the Tennessee convictions – because there 

was no other federal sentence to which it could be credited. 

The BOP contends that it correctly treated Blood‟s Tennessee 

sentence as commencing on February 9, 2004, in accordance 

with its internal sentencing manual, Program Statement 

5880.28, because the underlying convictions were never 

vacated and his post-remand Tennessee sentence essentially 

modified the original sentence. Accordingly, contends the 

BOP, Blood served the disputed time on the Tennessee 

sentence and is not entitled to double credit that time toward 

the Delaware sentence. 

In calculating a federal sentence, the BOP first 

determines when the sentence commenced and then 

determines whether the prisoner is entitled to any credits 

toward his sentence. See 18 U.S.C. § 3585. Section 3585(a) 

states that “[a] sentence to a term of imprisonment 

commences on the date the defendant is received in custody 

awaiting transportation to, or arrives voluntarily to commence 

service of sentence at, the official detention facility at which 

the sentence is to be served.” Pursuant to § 3585(b), a

prisoner is entitled to credit for time served 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 
9

imposed[,]” so long as the time has not been credited toward 

another sentence. When a prisoner is serving multiple 

sentences, the BOP must combine those sentences to form a 

single aggregate term. 18 U.S.C. § 3584(c).5 

Section 3585 does not directly address the 

recalculation of sentences post-remand. However, the BOP 

has interpreted § 3585 in its internal sentencing manual, 

Program Statement 5880.28. The BOP‟s interpretation 

warrants “some deference” so long as it sets forth a 

permissible construction of the statute. See Reno v. Koray, 

515 U.S. 50, 61 (1995). According to that manual, “[i]n no 

case can a federal sentence of imprisonment commence [in 

accordance with § 3585(a)] earlier than the date on which it is 

imposed.” See BOP Program Statement 5880.28, Sentence 

Computation Manual (July 20, 1999) available at 

http://www.bop.gov/policy/progstat/5880_028.pdf, at 1-13. 

However, a portion of the manual interpreting § 3585(b)

provides that “[t]ime spent serving another . . . sentence that 

is vacated merely for resentencing shall not have any effect 

on [a] sentence computation until such time as the inmate is 

resentenced.” Id. at 1-17. In such cases, “the date the

sentence [imposed on remand] begins will be the same as the 

original computation,” id. at 1-18, such that time served on 

the original sentence is treated as time served on the postremand sentence. Id. at 1-17. Because the manual appears to 

prohibit treating a sentence as commencing prior to the date 

 

5

To the extent Blood suggests that the BOP failed to comply with

18 U.S.C. § 3584(c), we disagree. The issue is not whether the 

BOP aggregated Blood‟s sentences– it did – but rather, whether the 

BOP correctly calculated the sentences in accordance with § 3585.
10

of imposition, yet treats a post-remand sentence as having 

commenced on the date of the original, vacated sentence, we 

asked the parties to address that apparent inconsistency.

The BOP explains that the two provisions can be 

harmonized by understanding how they work together in 

context. Program Statement 5880.28, like § 3585(a), focuses 

on the date that a prisoner physically reports to the BOP for 

service of a federal sentence on a given conviction. When a 

federal sentence is vacated without disturbing its underlying 

conviction, the BOP – using a “conviction based” as opposed 

to a “sentence based” approach – treats the post-remand 

sentence as commencing on the same date as the original 

sentence. That is because, practically speaking, “[a] 

resentencing does not change the date a defendant actually 

physically appeared and commenced service of a term of 

imprisonment resulting from a particular conviction.”6 

(Appellee‟s Br. 25.) Blood, however, contends that Program 

Statement 5880.28 is “contrary to law,” because “it is 

physically and legally impossible for a federal sentence of 

imprisonment to „commence‟ prior to the date a sentence of 

imprisonment is „imposed by the court.‟” (Appellant‟s Br. 9.) 

 

6

In contrast, when a defendant serves time on a sentence for a 

conviction that has been vacated on appeal, but the defendant is 

resentenced after a retrial, the BOP does not treat the new sentence 

as a modification of the former, vacated sentence. In that case, the 

defendant‟s term of imprisonment commences on the date he was 

sentenced after retrial, and any time spent in custody on the 

vacated convictions is credited pursuant to § 3585(b). Program 

Statement 5880.28 at 1-18. 
11

We conclude that Program Statement 5880.28 is a 

permissible interpretation of § 3585, and that it therefore 

warrants deference. See Allen v. Crabtree, 153 F.3d 1030, 

1033 (9th Cir. 1998).7 We have found nothing in the law that 

prohibits the BOP from treating Blood‟s post-remand 

Tennessee sentence as commencing on the date the original 

sentence was imposed, nor compels the calculation Blood 

proposes. Furthermore, we think it is reasonable for the BOP, 

from an administrative standpoint, to treat a sentence imposed 

on remand as a continuation of an initial sentence when the 

initial sentence has been vacated, but the underlying 

convictions are undisturbed. In such cases, there can be no 

question that the prisoner continues to serve time on the intact 

convictions despite the need for resentencing. 

Certainly, it would be preferable if the language in 

Program Statement 5880.28 did not appear to be inconsistent. 

That the manual could be clearer, however, does not change 

our conclusion that the BOP‟s framework is a legitimate 

exercise of its authority. To conclude otherwise would lead 

to absurd results. Instead of the predictable regime 

established by Program Statement 5880.28, Blood‟s proposed 

method of calculation would result in a windfall to some 

inmates serving multiple sentences (such as himself) while 

 

7 Although the court in Allen should not have deferred to Policy 

Statement 5880.28 under Chevron U.S.A. v. Natural Resources 

Defense Council, 467 U.S. 837 (1984), because Policy Statement 

5880.28 is only an internal agency guideline, see Tablada v. 

Thomas, 533 F.3d 800, 806 (9th Cir. 2008); Stiver v. Meko, 130 

F.3d 574, 578 (3d Cir. 1997), we agree with its conclusion even 

under the appropriate, less deferential standard.
12

other inmates would end up serving a longer aggregate term

despite obtaining a reduced sentence after a successful appeal. 

That is an illogical result that we will not require. 

In sum, the BOP appropriately treated Blood‟s 

Tennessee sentence as commencing on February 9, 2004, 

consistent with Policy Statement 5880.28.8 Accordingly, the 

disputed time was served on the Tennessee sentence. Since § 

3585(b) prohibits double crediting, Blood is not also entitled 

to have the disputed time counted toward his Delaware 

sentence. See Wilson, 503 U.S. at 337 (“Congress made clear 

[in § 3585(b)] that a defendant could not receive a double 

credit for his detention time.”). Because Blood is not entitled 

to the relief he seeks in his habeas petition, we will affirm the

District Court‟s judgment.

9

 

8 Our result is consistent with the Sixth Circuit‟s treatment of 

Blood‟s aggregate sentence. The Sixth Circuit dismissed as moot 

Blood‟s appeal of his 51-month Tennessee sentence because he 

began serving that sentence on February 9, 2004, and had 

completed his service by the time the case was ready for review. 

United States v. Blood, 259 F. App‟x 712, 713 (6th Cir. 2007). 

9

In light of our disposition, we will deny Blood‟s motion for 

immediate release and his “motion for summary affirmance.”