McCarthy v. Doe

• Decision Date: 09 June 1998
• Docket Number: No. 96-2767,96-2767
• Citation: 146 F.3d 118
• Parties: John J. McCARTHY, Petitioner-Appellant, v. John DOE, Director of the Federal Bureau of Prisons; Kathleen M. Hawk, Director; Joe Aguirre, Chief; T.Y. Butt, Administrator, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 118

146 F.3d 118

John J. McCARTHY, Petitioner-Appellant, v. John DOE, Director of the Federal Bureau of Prisons Kathleen M. Hawk, Director; Joe Aguirre, Chief T.Y. Butt, Administrator, Respondents-Appellees.

No. 96-2767.

United States Court of Appeals Second Circuit.

Argued Dec. 8, 1997.

Decided June 9, 1998.

John J. McCarthy, Petitioner-Appellant pro se, Somers, CT.

Christopher F. Droney, U.S. Atty., New Haven, CT (David J. Sheldon, Asst. U.S. Atty., New Haven, CT, on brief), for Respondents-Appellees.

Before: LEVAL and CABRANES, Circuit Judges, and MURTHA, Chief District Judge ^*

MURTHA, Chief District Judge:

This appeal raises a narrow but important sentencing question: Where a sentencing court does not indicate whether a federal sentence should be served consecutively to or concurrently with a not-yet-imposed state sentence, does the Bureau of Prisons have discretion to designate the state correctional facility as the place of confinement for the federal sentence, thus allowing the federal and state sentences to run concurrently? We hold that it does.

I. Background

In late 1992, petitioner was in the custody of the State of Connecticut, facing numerous state criminal charges. Petitioner also had been indicted on federal firearms charges. Beginning in December 1992, petitioner made several appearances in federal district court, each time pursuant to a writ of habeas corpus ad prosequendum, and was eventually convicted of two counts of possession of a firearm. See 18 U.S.C. §§ 922(g), 924(e). In January 1994, the federal district court sentenced petitioner to a term of 235 months. The court did not indicate whether the federal sentence was to run concurrently with or consecutively to any future state sentence. At sentencing, however, petitioner's stand-by counsel informed the court that petitioner would soon be sentenced on the state charges, and that the state sentence would likely run concurrently with the federal sentence.

Shortly thereafter, in April 1994, petitioner pleaded guilty to several state charges of burglary and larceny. The state court sentenced petitioner to a seven-year term to run concurrently with his federal sentence. Petitioner remained in state custody.

In August 1995, petitioner requested that the Bureau of Prisons ("Bureau") designate, nunc pro tunc, the state facility in which he was confined as a federal prison. Such a designation would allow petitioner to serve his state and federal sentences concurrently. In response, petitioner received a letter from Joe Aguirre, Chief of Inmate Systems Management at the Central Office of the Bureau, dated August 28, 1995. Aguirre explained that, in accordance with 18 U.S.C. § 3584(a), petitioner's federal sentence would run consecutively to his state sentence because the federal sentencing court had not specified otherwise.

A few days later, petitioner sent a letter to both Aguirre and Kathleen Hawk, Director of the Bureau, again requesting nunc pro tunc designation. Aguirre forwarded this second request to the Bureau's regional Inmate Systems Administrator. The Administrator, T.Y. Butt, notified petitioner in December 1995 that his request had been denied. Butt noted that the federal sentencing court had made no provision for a concurrent sentence, although the court was aware of petitioner's impending state sentence. Citing 18 U.S.C. § 3584, Butt explained that because of the federal's court silence, petitioner's federal sentence would run consecutively to his state sentence.

On August 22, 1995, before receiving any response from the Bureau, petitioner filed his first petition to compel the Bureau to respond to his request. At issue in this appeal, however, is petitioner's second amended petition, filed March 25, 1996. The second amended petition raised two claims: that the Bureau erred in refusing to designate petitioner's state prison as a place of confinement for service of his federal sentence, and that the Bureau erred in refusing to recognize its authority to make such a designation.

The district court denied the petition. The court reasoned that, in part, petitioner sought modification of his federal sentence to specifically provide that the federal sentence should run concurrently with any future state sentence. The court held that such a claim was properly considered on a motion to vacate, modify, or correct a sentence pursuant to 28 U.S.C. § 2255, and denied the request. ¹ To the extent petitioner sought review of the Bureau's denial of nunc pro tunc designation, the court held that petitioner had obtained the only relief to which he was entitled--consideration of the request by the Bureau--and denied the petition as moot. Petitioner timely appealed.

II. Discussion

After examining petitioner's contentions on appeal, we conclude that one of his claims for relief is meritorious. Specifically, we hold that the Bureau failed to properly consider petitioner's request for nunc pro tunc designation. The Bureau's responses to petitioner's request suggest the Bureau believed it had no authority to make such a designation. As we explain below, however, the Bureau does have authority to grant petitioner's request for nunc pro tunc designation, and petitioner is entitled to full review of that request.

The law governing prisoners subject to multiple sentences, particularly prisoners subject to multiple state and federal sentences, is hardly a model of clarity. We begin our discussion of this case by explaining what is not at issue. First, although petitioner emphasizes the state court's designation of its sentence to run concurrently with petitioner's federal sentence, we note that the state court's intent is not binding on federal authorities. See United States v. Sackinger, 704 F.2d 29, 32 (2d Cir.1983) (federal court is not obligated to comply with terms of plea agreement entered into between defendant and state authorities). Second, this case does not raise the issue of a sentencing court's authority to designate a federal sentence to run consecutively to a not-yet-imposed state sentence. This Court previously held that sentencing courts had such authority under the statutes effective prior to 1987, see Salley v. United States, 786 F.2d 546, 547 (2d Cir.1986), but has not addressed the issue under 18 U.S.C. § 3584(a), the current statute governing imposition of multiple terms of imprisonment. Our sister circuits are split on this question. See, e.g., United States v. Williams, 46 F.3d 57, 59 (10th Cir.1995) (18 U.S.C. § 3584(a) does not prohibit district court from ordering that federal sentence be served consecutively to state sentence that has not yet been imposed); United States v. Clayton, 927 F.2d 491, 492 (9th Cir.1991) (limiting language of 18 U.S.C. § 3584(a) indicates that Congress did not vest federal courts with authority to impose federal sentence to run consecutively to state sentence that has not yet been imposed).

Here, the sentencing court was silent as to whether petitioner's federal sentence should be served consecutively to or concurrently with his not-yet-imposed state sentence. This case therefore raises an issue left open by our recent decision in United States v. Pineyro, 112 F.3d 43 (2d Cir.1997) (per curiam), a case with very similar facts. While in state custody awaiting trial for armed robbery, the Pineyro defendant received a 15-month federal sentence for selling a silencer. The federal court did not indicate whether its sentence should run consecutively to or concurrently with the prospective state sentence. After his conviction and sentencing on the armed robbery charge, the defendant petitioned the Bureau for nunc pro tunc designation of his state prison as the place of confinement for his federal sentence. In response, the Bureau instructed the defendant to seek the recommendation of the federal sentencing judge. The judge recommended against the designation, and we held on appeal that the recommendation was not appealable. Id. at 45. We "express[ed] no opinion," however, regarding the Bureau's "authority to make the nunc pro tunc designation" sought by the defendant. Id. at 46.

The Bureau disclaims such authority in this case. To the contrary, the Bureau maintains that it is powerless to make the designation defendant seeks because the federal sentencing court did not order defendant's federal sentence to run concurrently with his state sentence. In support of its position, the Bureau relies on 18 U.S.C. § 3584(a), which states in relevant part:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

The Bureau emphasizes the presumption established by the last sentence of this provision. According to the Bureau, that presumption controls this case, because defendant's state and federal sentences were imposed at different times, and the federal sentencing court did not order the sentences to run concurrently.

The Bureau's interpretation of this statute is incorrect. The opening sentence of § 3584(a) establishes that this statute applies where multiple terms of imprisonment are imposed on a defendant at the same time, or where a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment. The presumptions established by the last two sentences of § 3584(a) must be read in light of this limiting language at the beginning of the section. As defendant was neither subjected to multiple terms of imprisonment at the same time nor was he already...