United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
MATTER comes before the Court on Defendant's
letter requesting the Court to either: (1) amend the federal
Judgment of Conviction (ECF No. 20) to reflect federal
custody credit towards time spent in State custody on a
subsequent escape charge conviction; or (2) recommend to the
Federal Bureau of Prisons (“BOP”) a nunc pro
tunc (retroactive) designation that would aid in
accomplishing the same result. ECF No. 23.
serving a State sentence for possession of cocaine and a
firearm (the “first State sentence”), Defendant
appeared in this Court and was sentenced to 60 months'
imprisonment which was to run consecutive to the first State
sentence Defendant was presently serving. After the Count
pronounced sentence, Defendant returned to State custody. At
the same time of sentencing, Defendant had a pending State
charge for leaving a halfway house (the “escape
the Court ordered the federal sentence to run consecutively
with the first State sentence, it could not order the federal
sentence to run concurrently with the yet-to-be imposed
sentence on the escape charge because that State case
remained pending. But the Court noted that should Defendant
be adjudged guilty on the escape charge, the State court
judge could order the sentence to run concurrent with the
now finds fault with the BOP's refusal to award him
federal credit for time spent in State custody on the escape
charge. Because after Defendant completed the first State
sentence, he remained in State custody to serve out the
imposed prison time on the escape charge.
federal “court cannot modify a term of imprisonment
after it has been imposed without specific
authorization.” McMillan v. United States, 257
Fed.Appx. 477, 479 (3d Cir. 2007) (per curiam) (citation
omitted); see also Dillion v. United States, 560
U.S. 817, 819 (2010). Such authorizations include correcting
an illegal sentence, clerical mistake, or error in the
record. See United States v. DeLeo, 644 F.2d 300,
301 (3d Cir. 1981).
presumes this Court has the inherent authority to modify a
sentence so that his federal sentence can now run
concurrently with the subsequently-imposed State sentence on
the escape charge. That is not the case.
State was the first sovereign to take physical custody of
Defendant upon his arrests on the first State sentence and
the escape charge, the State retained primary jurisdiction.
It was only after Defendant completed the States sentences
did the State relinquish jurisdiction to the BOP. See
Davis v. Sniezek, 403 Fed.Appx. 738, 740 (3d Cir. 2010)
(citations omitted). Thus, the BOP correctly determined
Defendant's federal sentence commenced on the date he
entered federal custody. See 18 U.S.C. §
federal district court has discretion to run a
defendant's federal sentence concurrently with or
consecutively to an anticipated state sentence, but such
action must occur at the time of sentencing, not at any time
thereafter. Setser v. United States, 566 U.S. 231,
235-36 (2012); see also United States v. Sharpe, 554
Fed.Appx. 123, 124 (3d Cir. 2014) (per curiam). Thus, this
Court lacks specific authorization to modify Defendant's
sentence. And although the State court judge determined the
escape charge sentence and federal sentence should run
concurrently, “neither the federal courts nor the [BOP]
are bound in any way by the state court's direction that
the state and federal sentences run concurrently.”
Barden v. Keohane, 921 F.2d 476, 748 n.4 (3d Cir.
the Court notes Defendant must first exhaust his
administrative remedies before seeking judicial relief.
United States v. Wilson, 503 U.S. 329, 334-35
(1992); Moscato v. Fed. Bureau of Prisons, 98 F.3d
757, 760 (3d Cir. 1996). A federal prisoner challenging a
federal sentence computation must first seek relief through
the BOP's administrative process, codified at 28 C.F.R.
§§ 542.10-19. The BOP's administrative remedy
procedure sets forth how to resolve a complaint: “An
inmate must submit an administrative remedy form to the
prison Warden. If the inmate is not satisfied with the
Warden's response, he may appeal to the Regional
Director. The inmate may then appeal to the Central Office of
the Bureau of Prisons. Each step must be completed within a
prescribed time.” Tiffin v. Lewisburg, 589
Fed.Appx. 609, 611 (3d Cir. 2014).
mentioning the availability of using BOP channels to request
a nunc pro tunc designation here, Defendant has not
shown any attempt to avail himself of the BOP's
administrative remedy procedures to seek credit towards his
federal sentence for time spent in State custody. Further, it
is unclear from the record whether Defendant has raised this
issue with the BOP at all. For these reasons; IT