New York Federal Criminal Practice Blog
October 4, 2007

EDNY Judge Weinstein Issues Important Decision on Achieving Concurrent State and Federal Sentences

The interaction between state and federal sentences is one of the thorniest of sentencing problems. Despite everyone’s best intentions, and clear statements on the record of the sentencing judge’s intent, the Bureau of Prisons (BOP) beats to its own drum on this issue, and absent the appropriate formula in the federal judge’s written judgment of conviction, may refuse to give a federal prisoner credit for time spent in state custody – a decision that could add years to an inmate’s period of incarceration.

The situation is neatly illustrated in the decision Judge Weinstein issued the other day in United States v. Jenkins, 2007 WL 2827574 (E.D.N.Y., October 2, 2007). Jenkins was arrested and incarcerated on a state charge in New Jersey. At the time, he was awaiting sentencing in a federal case before Judge Weinstein. The government “borrowed” him into federal custody by means of a writ so that his federal sentence could be imposed. >The federal court imposed a sentence of 27 months, but denied Jenkins’s request that his federal sentence run concurrently with his state sentence, since the state sentence had not yet been imposed. Jenkins was returned to state custody, after which the state court imposed a three-year term of imprisonment to run concurrently with the federal one. Despite the state judge’s clear intent that both sentences run concurrently, the BOP lodged detainers against Jenkins for the completion of his federal sentence once his state sentence was served – effectively rendering both sentences consecutive. This is because the BOP ignores the state court judge’s intent, and relies exclusively on the intent of the federal sentencing judge, as expressed in the federal judgment of conviction. If the federal judgment is silent as to concurrency, the BOP takes the position that the federal sentence must run consecutively with the state sentence.

Jenkins moved under 28 U.S.C. § 2255 for an amended federal judgment directing that his federal and state terms of incarceration run concurrently. In his decision, Judge Weinstein highlights a number of procedural hurdles Jenkins must surmount: whether § 2255 was the appropriate vehicle for the petition; the fact that Jenkins’s circumstances did not come within the narrow class of cases in which the court is authorized to amend its judgment of conviction; the fact that a state court’s specification that a state sentence run concurrently with the existing federal sentence is not binding on federal authorities; and the fact that only the BOP has the power to designate the place of imprisonment, and thus the power to designate a state institution for service of a federal sentence.

The judge did an end-run around these problems, however, by denying Jenkins’s application but “recommending” that the BOP grant Jenkins’s application to designate his state correction facility nunc pro tunc (i.e. retroactive to the date of initial incarceration) as a federal prison and credit time served in state custody to his federal sentence. While the court used the word “recommend,” Judge Weinstein noted the BOP usually follows such recommendations. Moreover, if the BOP does not give “full and fair consideration” to Jenkins’s application, the court invited Jenkins to file a petition under 28 U.S.C. § 2241 (a habeas corpus provision for petitions challenging the manner in which one’s sentence is being executed). One can hardly doubt that the BOP will choose the path of least resistance here.

The case highlights the gravity and complexity of the problems presented by simultaneous state and federal sentences. Practitioners encountering this issue in a case would do well to read the BOP’s publication on the subject, and formulate a strategy that minimizes the risk or severity of serving consecutive time.

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