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February 1, 1999


The opinion of the court was delivered by: Caldwell, District Judge.


I. Introduction.

We are considering the respondent's timely filed motion to alter or amend, styled as a motion for reconsideration.*fn1 The motion seeks review of our order, dated December 8, 1998, granting the petitioner, Francisco Rios, habeas relief. Specifically, the order required the Bureau of Prisons (BOP) to give the petitioner credit for about 22 months he spent incarcerated before the petitioner's federal sentence was imposed.

II. Background.

The background section of Rios v. Wiley, 29 F. Supp.2d 232, 1998 WL 864455 (M.D.Pa. 1998), the memorandum accompanying the order granting habeas relief, can serve as the background for the instant discussion. We would supplement it by only one fact, that the petitioner's federal trial took place from June 15 through June 17, 1992, more than a year and one-half before his federal sentencing. And we would make only one alteration, although a very important one, concerning the related nature of the state charges. The state charges on which the petitioner was incarcerated at the time federal authorities took him on the second ad prosequendum writ were not related to either of the two federal charges for which he is now imprisoned, as recited in that background section, The state charges were indeed based on a narcotics violation, as recited in the original memorandum, but they involved possession of cocaine, (presentence report at ¶¶ 75-76, exhibit to petitioner's opposition brief on reconsideration), not a conspiracy to distribute heroin or possess heroin with intent to distribute, the bases of the two federal charges. As such, the state charges were, properly, not included in the calculation of petitioner's offense level. (Sentencing transcript at p. 5).*fn2

III. Discussion

The respondent first reiterates the arguments he made in opposing habeas relief. We need not deal with those arguments, finding it more fruitful to focus on the respondent's criticisms of our memorandum.

By way of background, the memorandum was supported by two rationales. First, quoting United States v. Benefield, 942 F.2d 60 (1st Cir. 1991), we concluded that when a federal sentence is imposed to run concurrently with a related state sentence, it would be illogical not to grant credit for time already served on the state sentence based on the happenstance of when the federal sentencing took place. We believed that this would defeat the intent of the sentencing court in imposing a concurrent sentence.

This rationale was buttressed by a second one, which noted that before enactment of 18 U.S.C. § 3584, a part of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, 212(a)(2), Oct. 12, 1984, 98 Stat. 2000, and the statutory authority for the imposition of a concurrent sentence by a federal court, district courts had no authority to impose a sentence concurrent to a state sentence, citing Cozine v. Crabtree, 15 F. Supp.2d 997, 1020 (D.Or. 1998) (citing, among other cases; Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir. 1976)). Instead, under the old law, the BOP had that authority. Id. We concluded that:

  This previous authority must now give way to the
  district court's current authority to impose a
  concurrent sentence, which includes the implicit
  requirement that a defendant receive credit on the
  federal sentence for time served on the related state
  offense so that the sentences are truly concurrent.

Rios, 29 F. Supp.2d at 235, 1998 WL 864455. As support for this rationale, we cited United States v. Kiefer, 20 F.3d 874, 876 (8th Cir. 1994), a case involving the application of U.S.S.G. § 5G1.3(b). That sentencing guideline confers authority on district courts to grant credit for time served on a related state offense that has been taken into account in establishing the offense level for the federal offense.

In a related argument, the respondent contends that the BOP has no quarrel with a federal court's authority to impose a concurrent sentence under section 3584, but that section 3584 does not confer authority on a district court to make the sentence retroactive. To the contrary, the retroactivity of a federal sentence is governed by section 3585(b). That section, the respondent argues, confers exclusive authority on the BOP to determine retroactivity by authorizing the BOP to award credit for time served before the federal sentencing. In fact, power in the sentencing court to make a sentence retroactive would endanger the purpose of the Sentencing Reform Act and the Sentencing ...

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