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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 f or 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

, C ircuit Judges

(Opinion filed : July 12, 2011 )

George William Blood Appellant Pro se2 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 Ap

pellee

___________

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 federa l 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 t he Federal Pris on 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 Distri ct of Delaware. Before the Delaware court could sentence Blood, the United States Court3 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, 61 6 ( 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

w hether 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 s ente nce to have commenced on February 9, 2004

– the date Blood began serving on the original, vacated4 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 suc h that only about half of the Tennes see 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 t he Delaware sentence to count solely toward the Tennessee sentence. After credit ing him for seven days spent in custody after his initial Tennessee arrest, the BOP calculated Blood‟s full te rm date to be September 5, 2012. H is projected release date with good time credit is July 29, 2011.

After exhausting his administrative remedies, Blood filed a habeas petition in the District Cour t, 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”) 1 toward 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 Bloo d‟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 intent ion 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 fro m 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 cred it time toward a sentence under § 3585(b)

– that function rests in the sole authority of the BOP. 3 See United States v.

3 T he 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 the7 Wilson , 503 U.S. 329, 333

- 35 (1992). We believe that if the Delaware court intended to fashion a sentence that would effectively “cred it” 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 Delawa re 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 clar ify that subs ection (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 Del aware 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 Commis sion recommends that any downward departure under this application note be clearly stated in the Judgment in a Criminal Case Order as a downward de parture 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

– des pite the fact that he would inevitably be resentenced on the T ennessee 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 voluntar ily 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 offens e 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 was9 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 interpre ted § 3585 in its internal sentencing manual, Program Statement 5880.28. The BOP‟s interpretation

warrants “some deference” so long as it set s 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/588 0_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. a t 1

- 17. I n such cases , “the date the sentence [imposed on remand] begins will be the s ame as the original computation,” i d. a t 1

- 18, such that time served on the original sentenc e is treate d as time served on the post

remand sentence. Id. a t 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 1 8 U.S.C. § 3584(c), we disagree. T he 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 origi nal

, 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 da te 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 ter m 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 „com mence‟ 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 fo r 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 th e 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 , 1 53 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. Fur thermore, 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 inconsisten t. That the manual could be clearer, however, does not change our conclusion that the BOP‟s framework is a legitimate exercise of its authority. T o conclude otherwise w ould 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 und er 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 a n 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 count ed toward his Delaware

sentence

. See Wilson , 503 U.S. at 337 (“Congress made clear [in § 3585(b)] that a defendant cou ld not receive a double cred it 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 s entence 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.”