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George William Blood v. Warden B. A. Bledsoe


July 12, 2011


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

Per curiam.


Submitted Pursuant to Third Circuit LAR 34.1(a)

July 11, 2011

Before: RENDELL, FUENTES and SMITH, Circuit Judges


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.


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 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 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")*fn1 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 petition.

Blood timely appealed.*fn2 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.


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.

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


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.*fn3 See United States v. 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.*fn4

Our conclusion that the Delaware court lacked any specific intent vis-a-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 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 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).*fn5

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, 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 post-remand sentence. Id. at 1-17. Because the manual appears to prohibit treating a sentence as commencing prior to the date 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."*fn6

(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.)

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).*fn7 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 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.*fn8 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.*fn9

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