Reynolds v. Thomas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHARLES LEE REYNOLDS,  No. 08-35810
Petitioner-Appellant,
v.  D.C. No.
3:07-CV-01244-ST
J. E. THOMAS, warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Janice M. Stewart, Magistrate Judge, Presiding

Argued and Submitted
May 5, 2009—Portland, Oregon

Filed May 7, 2010

Before: William A. Fletcher, Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;
Concurrence by Judge W. Fletcher

6811
 REYNOLDS v. THOMAS 6813

COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender, for
the appellant.
6814 REYNOLDS v. THOMAS
Suzanne A. Bratis, Assistant United States Attorney, for the
appellee.

OPINION

IKUTA, Circuit Judge:

Charles Lee Reynolds appeals from the denial of his peti-
tion for a writ of habeas corpus under 28 U.S.C. § 2241, con-
tending that the Federal Bureau of Prisons (“BOP”) erred by
refusing to issue an order under 18 U.S.C. § 3621(b) that
retroactively (nunc pro tunc) designated the Montana state
prison where Reynolds served his state sentence as the place
where he began serving his federal sentence. Such an order,
in effect, would have deemed that Reynolds’s federal sen-
tence ran concurrently with his state sentence, and thus would
have shortened Reynolds’s term of federal imprisonment by
the amount of time he served in state prison. We affirm the
district court’s denial of the petition.

I

On October 3, 2002, Reynolds attempted unsuccessfully to
cash a forged cashier’s check at a bank in Ennis, Montana.
Notified by the bank, state police arrived, and Reynolds fled
in his car. Following a high-speed chase, the police captured
Reynolds and booked him in the Madison County, Montana,
jail in the early hours of October 4. His booking sheet indi-
cated that his arrest was “pursuant to a warrant.” Five hours
after booking, Reynolds’s arresting officer received a copy of
a federal warrant issued for Reynolds, which listed offenses
relating to identity theft and interstate flight to avoid prosecu-
tion. On October 29, the county attorney for Madison County
charged Reynolds by Information with forgery, identity theft,
and violation of the terms of three suspended sentences. The
county attorney for Lewis and Clark County, Montana, filed
additional charges against Reynolds shortly thereafter.
 REYNOLDS v. THOMAS 6815
Before Reynolds was tried or convicted in state court, the
federal district court in Montana issued a writ of habeas cor-
pus ad prosequendum, which released Reynolds to federal
custody to answer federal criminal charges. On May 22, 2003,
Reynolds pleaded guilty to identity theft, 18 U.S.C.
§ 1028(a)(7), and bank fraud, 18 U.S.C. § 1344. The district
court judge, Judge Charles Lovell, sentenced Reynolds to 71
months’ imprisonment for each count, with the sentences to
be served concurrently. That same day, Reynolds was
returned to state custody.

Reynolds pleaded guilty to charges in Lewis and Clark
County on July 24, 2003. The state court sentenced Reynolds
to a term of fifteen years in state prison, with five years sus-
pended. The state judge ordered Reynolds’s sentence for cer-
tain charges to run concurrently “with the federal sentence
imposed on defendant.” Four months later, the state court in
Madison County sentenced Reynolds to an additional five
years in state prison, and likewise specified that this sentence
should “be served concurrently with Defendant’s sentences in
Lewis and Clark County, Montana, and U.S. District Court to
the extent which they overlap.” Reynolds served 51 months
in state prison.

While in state prison, Reynolds petitioned the BOP to des-
ignate nunc pro tunc the Montana state prison as the “place
in which he may serve his federal sentence” pursuant to 18
U.S.C. § 3621(b).1 Reynolds sought a declaration that his fed-
1
Section 3621(b) states, in pertinent part:
(b) Place of Imprisonment.— The Bureau of Prisons shall desig-
nate the place of the prisoner’s imprisonment. The Bureau may
designate any available penal or correctional facility that meets
minimum standards of health and habitability established by the
Bureau, whether maintained by the Federal Government or other-
wise and whether within or without the judicial district in which
the person was convicted, that the Bureau determines to be
appropriate and suitable, considering—
6816 REYNOLDS v. THOMAS
eral sentence began when he was first incarcerated in state
prison. In support of his request, Reynolds noted that the
Montana courts had ordered that Reynolds’s state sentence
was to run concurrently with his federal sentence. The BOP
determined, however, that the federal court had not ordered
that his sentences run concurrently, and confirmed this inter-
pretation with Judge Lovell. The BOP denied Reynolds’s
request in December 2004.

On December 22, 2006, Reynolds was released from state
prison and transferred to federal custody. He thereafter
renewed his request for retroactive designation of the state
prison as the place where he began serving his federal sen-
tence. In response, the BOP again asked Judge Lovell to indi-
cate “the Court’s position on a retroactive designation” in
Reynolds’s case. In its letter, the BOP explained that if Reyn-
olds’s request were granted, he would have a projected release
date of July 17, 2008; otherwise, his projected release date
would be February 17, 2012. In a letter dated October 2007,
Judge Lovell stated that he had “no comment on [the BOP’s]
consideration of Defendant Reynolds for retroactive designa-
tion of the state institution for the service of the federal sen-
tence.”

The BOP denied Reynolds’s request in November 2007
based on the factors listed in 18 U.S.C. § 3621(b), specifically

(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence—
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility
as appropriate; and
(5) any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994 (a)(2) of title 28.
 REYNOLDS v. THOMAS 6817
the nature and circumstances of Reynolds’s offense, Reyn-
olds’s history and characteristics, and Judge Lovell’s
response. Reynolds appealed this administrative determina-
tion. The BOP denied the appeal, stating that “[t]he federal
judgment was silent regarding the execution of your service.
As such, multiple terms of imprisonment imposed at different
times are deemed consecutive unless the court dictates other-
wise.” Furthermore, the BOP explained, Reynolds did not
merit nunc pro tunc designation of the state prison under the
factors enumerated in 18 U.S.C. § 3621(b). Reynolds’s
actions (as noted by the federal sentencing court) posed a
“significant danger to the community,” Reynolds’s flight from
state authorities created a “substantial risk of death or serious
bodily injury to others,” and he had attempted to influence a
witness. Furthermore, the BOP noted that in light of “the
career nature of [his] criminal activities, lengthy criminal his-
tory to include violence, and the characteristics of the instant
offense, the likelihood of [his] recidivism is highly probable.”

Reynolds filed a petition for writ of habeas corpus under 28
U.S.C. § 2241. The district court denied the petition, and
Reynolds timely appealed. In November 2009, while this
appeal was pending, Reynolds renewed his request for a nunc
pro tunc designation of the Montana state prison where he had
been incarcerated as the place where he began service of his
federal sentence. The BOP contacted Judge Lovell for a third
time; this time, the judge responded that “since the objectives
of sentencing have apparently been largely met in his case, I
have no objections to your suggestion for a retroactive desig-
nation.” On November 18, 2009, the BOP granted Reynolds’s
request. Based on this ruling, the BOP determined that Reyn-
olds was entitled to immediate release. His five-year term of
supervised release thus began on November 20, 2009.

II

Before addressing the merits of Reynolds’s petition, we
must address the government’s argument that Reynolds’s
6818 REYNOLDS v. THOMAS
challenge to the BOP’s November 2007 decision is moot
because it was superseded by the BOP’s November 2009
decision.

[1] We conclude that Reynolds’s petition is not moot. A
challenge to a term of imprisonment is not mooted by a peti-
tioner’s release where the petitioner remains on supervised
release and “[t]here is a possibility that [petitioner] could
receive a reduction in his term of supervised release under 18
U.S.C. § 3593(e)(2).” Mujahid v. Daniels, 413 F.3d 991, 995
(9th Cir. 2005); accord Arrington v. Daniels, 516 F.3d 1106,
1112 n.4 (9th Cir. 2008); United States v. Verdin, 243 F.3d
1174, 1179 (9th Cir. 2001). Reynolds is currently scheduled
to remain on supervised release until 2014. In support of his
petition challenging the BOP’s November 2007 decision,
Reynolds claims he is entitled to a recalculation of his release
date to July 17, 2008, and asserts that he was overincarcerated
for sixteen months: from July 17, 2008 to his actual release
date of November 20, 2009. A court could consider this
alleged period of over-incarceration under 18 U.S.C.
§ 3583(e) as a factor weighing in favor of reducing the term
of supervised release. See United States v. Johnson, 529 U.S.
53, 60 (2000). Furthermore, because the BOP’s November
2009 decision did not recalculate Reynolds’s release date to
July 17, 2008, it did not give Reynolds the relief he requested
in his petition for habeas corpus. Accordingly, we reject the
government’s contention that Reynolds’s appeal is moot.

III

We turn to the merits of Reynolds’s claim that the BOP
erred in November 2007 when it denied his request for nunc
pro tunc designation of the Montana prison as the facility for
service of his federal sentences. We review de novo the denial
of a petition filed under 28 U.S.C. § 2241, Bowen v. Hood,
202 F.3d 1211, 1218 (9th Cir. 2000), reviewing underlying
factual findings for clear error, McNeedly v. Blanas, 336 F.3d
822, 826 (9th Cir. 2003).
 REYNOLDS v. THOMAS 6819
A

[2] We begin with a brief overview of the law applicable
to federal courts and the BOP’s determination of whether sen-
tences should be served consecutively or concurrently. Under
18 U.S.C. § 3584, “[m]ultiple terms of imprisonment imposed
at different times run consecutively unless the court orders
that the terms are to run concurrently.”2 A court has the dis-
cretion, however, to order that multiple terms of imprison-
ment run concurrently when the court is imposing multiple
terms on a defendant at the same time or is sentencing a
defendant already subject to an undischarged term of impris-
onment. Id. The discretion granted by this provision is limited
in two respects. First, “concurrent sentences imposed by state
judges are nothing more than recommendations to federal
officials.” Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir.
2002). Accordingly, “the court” referenced in § 3584(a) refers
only to federal courts. Second, we have held that even federal
courts “cannot order a sentence to run either concurrently or
consecutively to a non-existent term.” Id.; see 18 U.S.C.
2
Section 3584 provides, in relevant part:
(a) Imposition of concurrent or consecutive terms.— 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, except that the
terms may not run consecutively for an attempt and for another
offense that was the sole objective of the attempt. 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.
(b) Factors to be considered in imposing concurrent or consecu-
tive terms.— The court, in determining whether the terms
imposed are to be ordered to run concurrently or consecutively,
shall consider, as to each offense for which a term of imprison-
ment is being imposed, the factors set forth in section 3553 (a).
6820 REYNOLDS v. THOMAS
§ 3584(a). In other words, a federal court cannot order a sen-
tence to be served concurrently with a sentence, including a
state sentence, that has not yet been imposed. Id.

During the sentencing process, federal courts must also
consider the United States Sentencing Guidelines. See United
States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc).
Section 5G1.3 of the Guidelines provides that under certain
circumstances, if a defendant is already subject to an undis-
charged term of imprisonment for “relevant conduct,” the sen-
tencing court should adjust a defendant’s sentence for the
crime of conviction to take into account the time already
served and should order the sentence to run concurrently with
the remaining undischarged term of imprisonment.3 This
Guideline also includes the Sentencing Commission’s policy
3
Section 5G1.3(b)-(c) provides:
(b) If subsection (a) does not apply, and a term of imprisonment
resulted from another offense that is relevant conduct to the
instant offense of conviction under the provisions of subsec-
tions (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct)
and that was the basis for an increase in the offense level for
the instant offense under Chapter Two (Offense Conduct) or
Chapter Three (Adjustments), the sentence for the instant
offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term
of imprisonment if the court determines that such
period of imprisonment will not be credited to the fed-
eral sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to
run concurrently to the remainder of the undischarged
term of imprisonment.
(c) (Policy Statement) In any other case involving an undis-
charged term of imprisonment, the sentence for the instant
offense may be imposed to run concurrently, partially con-
currently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the
instant offense.
 REYNOLDS v. THOMAS 6821
statement that where there is an undischarged term of impris-
onment, the district court should exercise its discretion “to
achieve a reasonable punishment” for the offense. § 5G1.3(c).

Once the district court has discharged its sentencing func-
tion, the defendant is committed to the custody of the BOP,
which has the authority to calculate the defendant’s sentences
in accordance with the district court’s orders, as well as to
designate the facility for service of such sentences. By statute,
a federal sentence “commences on the date the defendant is
received in custody” at the “official detention facility at which
the sentence is to be served.” 18 U.S.C. § 3585(a). The BOP
has the authority to “designate the place of the prisoner’s
imprisonment.” 18 U.S.C. § 3621(b). In exercising this desig-
nation authority, the BOP is directed to consider a range of
factors, including “the nature and circumstances of the
offense,” “the history and characteristics of the prisoner,”
“any statement by the court that imposed the sentence”
including any recommendation as to the type of correction
facility, and “any pertinent policy statement” of the Sentenc-
ing Commission. Id.

[3] On its face, § 3621(b) gives the BOP only the adminis-
trative responsibility to identify the facility in which a federal
prisoner will serve out the sentence imposed by the district
court. The BOP has interpreted this statute, however, as
authorizing it to issue a nunc pro tunc order designating a
state prison as the facility for service of a federal sentence
“when it is consistent with the intent of the federal sentencing
court or with the goals of the criminal justice system.” BOP
Program Statement 5160.05 (January 16, 2003). Program
Statement 5160.05 explains, “[w]hen a federal judge orders or
recommends a federal sentence run concurrently with a state
sentence already imposed the Bureau implements such order
or recommendation, ordinarily by designating the state facility
as the place to serve the federal sentence.” The BOP will also
consider “an inmate’s request for pre-sentence credit toward
a federal sentence for time spent in service of a state sentence
6822 REYNOLDS v. THOMAS
as a request for a nunc pro tunc designation.” The Program
Statement requires the BOP to consider the inmate’s request,
and sets forth the procedure the BOP must follow in determin-
ing whether to designate a state prison for (in effect) concur-
rent service of a federal sentence. Such procedures require the
BOP to ask the federal sentencing court if it has any objec-
tions to such designation.

We approved the BOP’s approach under this Program
Statement in Taylor v. Sawyer, 284 F.3d at 1148-49.4 In that
case, we considered and rejected the argument that the Pro-
gram Statement’s grant of authority to the BOP to issue a
nunc pro tunc designation was inconsistent with § 3584 and
thus invalid. Id. Instead, joining other circuits that had consid-
ered the issue, we concluded that “such a designation by the
BOP is plainly and unmistakably within the BOP’s discre-
tion.” Id. at 1149; see McCarthy v. Doe, 146 F.3d 118, 123
(2d Cir.1998) (holding that the BOP has the discretion to
grant or deny a request for nunc pro tunc relief); Barden v.
Keohane, 921 F.2d 476, 478 (3d Cir. 1990) (same); see also
Romandine v. United States, 206 F.3d 731, 738 (7th Cir.
2000) (expressing agreement with “McCarthy’s bottom line”
on this point). Finally, we rejected the defendant’s arguments
that such a conclusion was contrary to the doctrine of dual
sovereignty, principles of comity and federalism, and the Full
Faith and Credit Clause. Taylor, 284 F.3d at 1151-53.

B

Reynolds raises two arguments on appeal. First, notwith-
standing our decision in Taylor, he asserts that the BOP had
an obligation to comply with the state court’s determination
4
The BOP replaced Program Statement § 5160.04 (April 19, 2000) ref-
erenced in Taylor, 284 F.3d at 1143, with the current Program Statement
§ 5160.05 in January 2003 in order to comply with a federal “plain lan-
guage” initiative. The two program statements are identical in all material
respects.
 REYNOLDS v. THOMAS 6823
that Reynolds’s sentences should run concurrently with his
federal sentence. Second, he asserts that the BOP’s denial of
his request for nunc pro tunc designation of the Montana
prison was arbitrary and capricious, primarily because the
BOP based its denial on the historical accident that Reynolds
was sentenced by the federal court before the state court. We
address these arguments in turn.

1

Reynolds begins with a two-part argument as to why the
BOP erred in ignoring the state court’s orders. Reynolds first
points to § 3584(a), which states that multiple terms of
imprisonment imposed at different times “run consecutively
unless the court orders that the terms are to run concurrently.”
Because the state court here ordered the state and federal
terms to run concurrently, Reynolds argues, the BOP was
bound by this ruling. The BOP’s decision to the contrary,
Reynolds contends, was an improper assumption of judicial
authority to determine the length of his sentences, rather than
a proper exercise of discretion under § 3126(b). Thus, the
BOP’s actions contravened Congressional intent and the prin-
ciples of federalism and separation of powers.

[4] Reynolds’s arguments fail because they are contrary to
Taylor, in which we upheld the BOP’s authority to decline to
make a nunc pro tunc designation of a state prison notwith-
standing a state court’s contrary order. 284 F.3d at 1149. In
Taylor, a defendant in state pre-trial custody appeared before
a federal court on a writ ad prosequendum, and was sentenced
to a term of imprisonment on a federal offense. Id. at 1146.
Returned to state custody, the defendant was sentenced to a
term of state imprisonment to run concurrently with the fed-
eral sentence. Id. The federal sentencing court denied the
defendant’s request for an order giving him credit for time
served in state prison, and also declined to recommend that
the BOP issue a nunc pro tunc order designating the state
prison as the place to serve his federal sentence. Id. Affirming
6824 REYNOLDS v. THOMAS
the denial of the defendant’s petition for habeas corpus, we
held that § 3584(a) did not impose any obligation on the BOP
to implement a state’s concurrency order. Id. at 1149-50. Fur-
ther, we held that the BOP had discretion under § 3621(b) and
its Program Statement to decline to issue such an order,
explaining that “we cannot lightly second guess a deliberate
and informed determination by the agency charged with
administering federal prison policy.” Id. at 1149.

Reynolds attempts to distinguish Taylor on the ground that
the federal sentencing court in that case expressly stated its
intent that the federal sentence run consecutively to the state
sentence. Reynolds argues that under such circumstances, the
state court’s intent cannot bind a federal court, and the BOP
was required to follow the federal court’s order that its sen-
tence run consecutively. Because the federal court in his case
did not make such an order, Reynolds asserts that the state
court’s order bound the BOP.

[5] We disagree. Notwithstanding factual differences, Tay-
lor forecloses Reynolds’s argument. As in this case, the
defendant in Taylor argued “that the BOP, in administering a
federal sentence, should not be allowed to disregard a state
court’s alleged order of concurrency,” and that the BOP’s
action was invalid because it was “preempting what he claims
are rights of the state court.” Id. at 1151. We rejected those
arguments as having “no persuasive support in constitutional
principle, consistent practice or established case law.” Id.
Given our ruling in Taylor, we must conclude that the BOP
had discretion to reject Reynolds’s request for a nunc pro tunc
designation notwithstanding the state court’s order, and such
a determination was not inconsistent with § 3584(a).

In light of this conclusion, we need not reach Reynolds’s
argument that the BOP is powerless to designate a state prison
nunc pro tunc on its own authority in light of contrary Con-
gressional intent, separation of powers principles, and federal-
ism concerns. Because the BOP did not order a nunc pro tunc
 REYNOLDS v. THOMAS 6825
designation of the state prison in this case, and it is that failure
that Reynolds here challenges, any question about the scope
of the BOP’s authority to do so is not properly before us. In
any event, Taylor held that “such a designation by the BOP
is plainly and unmistakably within the BOP’s discretion.” Id.
at 1149.

2

Although it is not entirely clear, Reynolds’s second argu-
ment appears to be that, but for the historical accident that
Reynolds’s federal sentence was imposed first, his state and
federal sentences would have run concurrently by force of
law. Under these circumstances, Reynolds argues, the BOP’s
denial of Reynolds’s requested nunc pro tunc designation was
arbitrary, capricious, an abuse of discretion, and contrary to
law. Reynolds provides three reasons why his sentences
should have been imposed in a different order, and should
now be deemed to run concurrently.

First, Reynolds claims that his original arrest in October
2002 was under a federal warrant, and the district court erred
in holding otherwise. Therefore, Reynolds argues, he was in
primary federal jurisdiction at the time the federal district
court issued its sentence and he should have served the federal
sentence first. If this had occurred, Reynolds would then have
received credit for the entire federal sentence because the
state court ordered the state sentence to be served concur-
rently.

We need not reach the question whether it would be an
abuse of discretion to deny a nunc pro tunc designation under
these circumstances, because here the district court did not
clearly err in determining that Reynolds was under the pri-
mary jurisdiction of the state at the time of his federal convic-
tion. “Normally, the sovereign which first arrests an
individual acquires priority of jurisdiction for purposes of
trial, sentencing, and incarceration.” United States v. Warren,
6826 REYNOLDS v. THOMAS
610 F.2d 680, 684-85 (9th Cir. 1980). Although both state and
federal arrest warrants were outstanding for Reynolds, his
arresting officers did not receive a copy of the federal arrest
warrant until 9:00 a.m. on October 4, five hours after Reyn-
olds was booked into Madison County jail. Additionally, the
federal district court brought Reynolds before it pursuant to a
writ of habeas corpus ad prosequendum, a further indication
that the state had primary jurisdiction over him. See, e.g.,
Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991); Gun-
ton v. Squier, 185 F.2d 470, 470-71 (9th Cir. 1950). More-
over, even were we to assume that a state’s prosecutorial
delay might result in an abdication of primary jurisdiction, see
Buggs v. Crabtree, 32 F. Supp. 2d 1215, 1220 (D. Or. 1998),
no such delay occurred here. Reynolds was taken into federal
custody less than sixty days after his arrest and was sentenced
by state court approximately two months after being returned
to federal custody.

Reynolds’s second argument is that the BOP acted arbitrar-
ily and capriciously in failing to consider that the federal sen-
tence would have run concurrently with the state sentence
under § 5G1.3 if the state sentence had been imposed first.
Reynolds explains that had the state sentence been pending
when he appeared before the district court, § 5G1.3 would
have led the federal sentencing court to impose a federal sen-
tence that ran concurrently with the remaining undischarged
term of state imprisonment. According to Reynolds, the
BOP’s failure to take into account this direction constituted an
abuse of discretion and violated the Sentencing Commission’s
policy direction that, where there is an undischarged term of
imprisonment, the district court should exercise its discretion
“to achieve a reasonable punishment” for the offense.
§ 5G1.3(c).

This argument is unavailing, even assuming the state
court’s sentence was for “relevant conduct” and otherwise
met the criteria in § 5G1.3. The record establishes that the
BOP carefully and thoroughly reviewed the factors set forth
 REYNOLDS v. THOMAS 6827
in its Program Statement before denying Reynolds’s request.
There is no evidence that Reynolds asked the BOP to consider
§ 5G1.3 in connection with his request for nunc pro tunc des-
ignation. Even if Reynolds had brought § 5G1.3 to the BOP’s
attention, that Guideline is inapplicable by its own terms, see
supra; the BOP’s failure to follow an inapplicable Guideline
is not an abuse of discretion.

[6] Finally, Reynolds asserts that the BOP acted arbitrarily
and capriciously because it incorrectly interpreted the federal
court’s silence as intent that Reynolds’s state and federal sen-
tences run consecutively. Had the BOP not made such an
error, Reynolds argues, it would have issued a nunc pro tunc
designation. However, we see no error on the BOP’s part.
Section 3584(a) explicitly states that multiple terms of state
and federal imprisonment run consecutively absent a court
order that the sentences run concurrently. 18 U.S.C.
§ 3584(a). Here there was no federal court order indicating
that Reynolds’s sentences should run concurrently. By deny-
ing Reynolds’s request, the BOP did no more than enforce the
plain terms of § 3584(a). Accordingly, the BOP acted within
its broad discretion under § 3621(b) and the Program State-
ment to grant or deny a request for nunc pro tunc relief after
full and fair consideration.

AFFIRMED.

W. FLETCHER, Circuit Judge, concurring:

I would also affirm the district court’s denial of the writ of
habeas corpus. The federal Bureau of Prisons (“BOP”) acted
properly in construing the sentencing judge’s answer to the
BOP’s letter, in which the judge refused to express a prefer-
ence, as an indication that a consecutive sentence was appro-
priate. I write separately to express my concern that the
6828 REYNOLDS v. THOMAS
BOP’s nunc pro tunc practice raises serious separation of
powers questions.

I. Calculation of Sentences

In order to understand why the BOP’s practice raises sepa-
ration of powers concerns, it is necessary to discuss at some
length the manner in which sentences are determined and cal-
culated. A federal judge determines the length of a term of
imprisonment for a person convicted of a federal crime. See
18 U.S.C. §§ 3551, 3553. Included in that determination is a
decision whether terms of imprisonment will be served con-
currently or consecutively. When choosing between concur-
rent and consecutive terms, a federal judge must “consider, as
to each offense for which a term of imprisonment is being
imposed, the factors set forth in [18 U.S.C.] section 3553(a).”
18 U.S.C. § 3584(b). The factors set forth in § 3553(a)
include “the nature and circumstances of the offense and the
history and characteristics of the defendant”; “the need for the
sentence . . . to reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment . . . ;
to afford adequate deterrence . . . ; to protect the public from
further crimes of the defendant”; and “the need to avoid
unwarranted sentence disparities.”

The federal Bureau of Prisons incarcerates persons con-
victed of federal crimes. See 18 U.S.C. § 3621. Among its
other responsibilities, the BOP calculates the length of time a
person spends in federal prison in fulfilling the sentence
imposed by a federal judge. In United States v. Wilson, 503
U.S. 329 (1992), the Supreme Court held that the BOP is
responsible for calculating the amount of credit, if any, a fed-
eral prisoner should receive based on time previously served
under another sentence, including a sentence served in state
prison. See 18 U.S.C. § 3585(b) (“A defendant shall be given
credit toward the service of a term of imprisonment for any
time he has spent in official detention prior to the date the
sentence commences . . . as a result of any other charge for
 REYNOLDS v. THOMAS 6829
which the defendant was arrested after the commission of the
offense for which the sentence was imposed[ ] that has not
been credited against another sentence.”).

A rule of construction for determining whether a federal
sentence is concurrent or consecutive with another sentence is
provided in 18 U.S.C. § 3584(a):

If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of imprison-
ment is imposed on a defendant who is already sub-
ject 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 consecu-
tively. Multiple terms of imprisonment imposed at
different times run consecutively unless the court
orders that the terms are to run concurrently.

The first sentence of § 3584(a) has two clauses that address
distinct situations. The first clause refers to multiple terms of
imprisonment imposed on a defendant at the same time; this
clause applies when a judge sentences a defendant in the same
criminal proceeding for multiple violations of federal law.
The second sentence of § 3584(a) provides that in this situa-
tion, if the federal judge fails to specify either concurrent or
consecutive sentences, the sentences are concurrent. The sec-
ond clause of the first sentence refers to a term of imprison-
ment imposed when a defendant has already been sentenced
in a separate state or federal proceeding, and when that earlier
term has not yet been fully served. The third sentence of
§ 3584(a) governs this situation, providing that if the federal
judge fails to specify either a concurrent or consecutive sen-
tence, the federal sentence is consecutive. The third sentence
may be read more broadly to govern, in addition, the situation
in which the federal judge imposes a sentence and another
6830 REYNOLDS v. THOMAS
sentence is imposed afterwards. In these situations, if the fed-
eral judge fails to specify, the sentences are consecutive.

The federal courts of appeals have split on the question of
whether a federal sentencing judge has the authority to dictate
whether a sentence is to run concurrently or consecutively
with respect to a yet-to-be imposed sentence. The Eighth,
Tenth and Eleventh Circuits have held that the judge has this
authority. See United States v. Mayotte, 249 F.3d 797, 798-99
(8th Cir. 2001) (per curiam); United States v. Williams, 46
F.3d 57, 58-59 (10th Cir. 1995); United States v. Ballard, 6
F.3d 1502, 1510 (11th Cir. 1993). The Second, Fourth, Sixth
and Seventh Circuits, as well as our own, have held that the
judge does not have this authority. See United States v.
Donoso, 521 F.3d 144, 149 (2d Cir. 2008); United States v.
Smith, 472 F.3d 222, 225-26 (4th Cir. 2006); Taylor v. Saw-
yer, 284 F.3d 1143, 1148 (9th Cir. 2002) (citing United States
v. Neely, 38 F.3d 458, 460-61 (9th Cir. 1994); United States
v. Clayton, 927 F.2d 491, 492 (9th Cir. 1991)); Romandine v.
United States, 206 F.3d 731, 737-38 (7th Cir. 2000); United
States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998).
The Fifth Circuit has held that the judge has this authority
with regard to a yet-to-be imposed state sentence, but not a
federal sentence. See United States v. Quintana-Gomez, 521
F.3d 495, 498 (5th Cir. 2008); United States v. Brown, 920
F.2d 1212, 1217 (5th Cir. 1991), abrogated on other grounds
by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir.
2006).

In circuits where the federal sentencing judge does not have
the authority to dictate whether the federal sentence is to run
concurrently or consecutively with a yet-to-be imposed sen-
tence, the default is that the two sentences run consecutively.
See Romandine, 206 F.3d at 737-38; see also Taylor, 284 F.3d
at 1149. The same default result is achieved in circuits where
the judge has the authority, if the judge fails to specify a con-
current or consecutive sentence. See 18 U.S.C. § 3584(a)
(third sentence). The default result can frustrate the desire of
 REYNOLDS v. THOMAS 6831
a federal sentencing judge. This is clearly so in circuits where
the federal sentencing judge would impose a concurrent sen-
tence with the yet-to-be imposed sentence but has no author-
ity to do so. This can also be so in circuits where the federal
sentencing judge has the authority to impose a concurrent sen-
tence but at the time of sentencing has insufficient informa-
tion about the circumstances of the other crime and the yet-to-
be imposed sentence for that crime to decide whether a con-
current sentence is appropriate.

If the second sentencing judge is a federal judge, the desire
of the initial sentencing judge to impose a concurrent sentence
may sometimes be effectuated. In that circumstance, the sec-
ond judge has the authority to impose a sentence that will run
concurrently with the first. The second judge may or may not
have the same view of the case, and of the appropriate sen-
tence, as the first judge. But at least the second judge will be
applying the same federal sentencing criteria as the first
judge, and may reach the same answer the first judge would
have reached.

When the second sentencing judge is a state judge, the
desire of the initial sentencing judge to impose a concurrent
sentence may also be effectuated; but that possibility is more
remote than in the case where the second sentencing judge is
federal. The problem arises when the state authorities have
primary jurisdiction but the federal sentence is imposed first.
The federal circuits are unanimous in holding that a state
judge has no authority to require that a state sentence of
imprisonment be served concurrently with a previously
imposed federal sentence. See Taylor, 284 F.3d at 1151-52
(“[T]he BOP does not need to abide by a state’s express
desire to have its sentence run concurrent to a previously
imposed federal sentence.”); see also Fegens v. United States,
506 F.3d 1101, 1104 (8th Cir. 2007) (“It is well-settled that
the state court’s intent is not binding.”); Abdul-Malik v.
Hawk-Sawyer, 403 F.3d 72, 73 (2d Cir. 2005). That is, there
is nothing a state court judge can do to require federal authori-
6832 REYNOLDS v. THOMAS
ties to credit time served on a state sentence against a federal
sentence. The state judge may take a previously imposed fed-
eral sentence into account by imposing a shorter state sen-
tence than the judge otherwise would, thereby achieving a de
facto concurrent sentence. But the state judge, for reasons of
state law or policy, may be unable to do so even if that judge
so desires.

So far as I am aware, there are no statistics showing how
often a federal sentencing judge desires to impose a sentence
that will run concurrently with a yet-to-be-imposed sentence
but is unable to achieve that result. Similarly, I am not aware
of statistics showing how often, in cases in which the first
judge is federal and the second judge is state, both judges
desire to impose concurrent sentences but neither judge is
able to achieve that result. But even without reliable statistics,
it is obvious that under the law, at least as so far described,
there is a problem in effectuating the sentencing intention of
a federal judge when he or she is the first judge to impose
sentence.

In 1991, the Third Circuit devised an ingenious solution to
the problem posed when the state has primary jurisdiction but
the federal sentence is imposed before the state sentence. In
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991), the court
interpreted 18 U.S.C. § 3621(b) to permit the federal BOP to
issue a nunc pro tunc order designating state prison as the
place for service of a federal sentence, thereby achieving a
concurrent state and federal sentence beginning on the date
specified in the order.

Section 3621(b) provides:

Place of imprisonment.—The Bureau of Prisons
shall designate the place of the prisoner’s imprison-
ment. The Bureau may designate any available penal
or correctional facility that meets minimum stan-
dards of health and habitability established by the
 REYNOLDS v. THOMAS 6833
Bureau, whether maintained by the Federal Govern-
ment or otherwise and whether within or without the
judicial district in which the person was convicted,
that the Bureau determines to be appropriate and
suitable, considering—

(1) the resources of the facility contem-
plated;

(2) the nature and circumstances of the
offense;

(3) the history and characteristics of the
prisoner;

(4) any statement by the court that imposed
the sentence—

(A) concerning the purposes for which
the sentence to imprisonment was deter-
mined to be warranted; or

(B) recommending a type of penal or
correctional facility as appropriate; and

(5) any pertinent policy statement issued by
the Sentencing Commission pursuant to
section 994(a)(2) of title 28.

In designating the place of imprisonment or making
transfers under this subsection, there shall be no
favoritism given to prisoners of high social or eco-
nomic status. The Bureau may at any time, having
regard for the same matters, direct the transfer of a
prisoner from one penal correctional facility to
another. The Bureau shall make available appropri-
ate substance abuse treatment for each prisoner the
6834 REYNOLDS v. THOMAS
Bureau determines has a treatable condition of sub-
stance addiction or abuse.

18 U.S.C. § 3621(b).

On its face, § 3621(b) appears to direct the BOP to deter-
mine only where a prisoner may be housed. The BOP may
designate a non-federal facility, so long as that facility meets
“minimum standards of health and habitability,” and so long
as the BOP has determined that the facility is “appropriate and
suitable.” Nowhere does § 3621(b) explicitly authorize the
BOP, in designating a non-federal facility, to determine nunc
pro tunc that time served in a state facility pursuant to a state
sentence has been served concurrently with a federal sentence
that was imposed earlier. However, the Third Circuit in Bar-
den read § 3621(b) to provide that authorization.

In Barden, habeas petitioner Barden sought credit against
his federal sentence for bank robbery, which he was then
serving, for time already served in state prison for robbery,
rape and kidnaping. The federal BOP refused, stating that it
had no authority to grant such credit. The Third Circuit dis-
agreed, writing:

We agree with Barden that the federal government
has the statutory authority [under 18 U.S.C.
§ 3621(b)] to make the nunc pro tunc designation
Barden desires. . . . We do not pass upon Barden’s
contention that he is entitled to a favorable exercise
of the broad discretion the Federal Bureau of Prisons
(Bureau) has in acting on his request. Instead, we
hold only that the federal authorities have an obliga-
tion, on the peculiar facts before us, to look at Bar-
den’s case and exercise the discretion the applicable
statute grants the Bureau to decide whether the state
prison in which he served his sentence should be
designated as a place of federal confinement nunc
pro tunc.
 REYNOLDS v. THOMAS 6835
921 F.2d at 478. The BOP responded to Barden by instituting
a nunc pro tunc sentencing procedure set forth in its Program
Statements 5160.05 and 5880.28.

The Supreme Court has never endorsed the nunc pro tunc
procedure authorized by the Third Circuit in Barden. A year
after the Third Circuit’s decision in Barden, the Court held in
United States v. Wilson, 503 U.S. 329 (1992), that the BOP
has the authority under 18 U.S.C. § 3585(b) to perform the
mathematical computation involved in determining the time a
federal prisoner should be credited based on time served on
another sentence. However, the nunc pro tunc procedure
authorized in Barden goes well beyond the calculation
involved in Wilson. Under the nunc pro tunc procedure, the
BOP does not merely perform the computation involved in
determining how much a federal sentence should be reduced
on account of time already served under a separate concurrent
sentence. Rather, under the nunc pro tunc procedure, the BOP
makes the foundational decision of whether the separate sen-
tence should be concurrent.

II. Reynolds’s Arguments on Appeal

As the majority discusses, Reynolds makes two arguments
on appeal. One of these arguments is that the BOP erred in
denying Reynolds credit against his federal sentence for time
served in state custody. The other is that in denying Reynolds
credit, the BOP made a sentencing decision reserved to the
judicial branch and thereby violated the separation of powers.

A. Denial of Credit Against Federal Sentence

In support of his argument that the BOP erred in denying
him credit, Reynolds contends that federal authorities had pri-
mary jurisdiction, that U.S.S.G. § 5G1.3 required the nunc
pro tunc designation, and that the BOP wrongly construed the
federal judge’s silence in response to the BOP’s letter as an
indication that the federal sentence should be served consecu-
6836 REYNOLDS v. THOMAS
tively. I agree with the majority that the district court did not
clearly err in determining that the state had primary jurisdic-
tion over Reynolds, and that U.S.S.G. § 5G1.3 is not applica-
ble.

As to whether the BOP wrongly construed the federal
court’s silence, I agree with the majority that the BOP did not
err in construing the sentencing court’s silence as expressing
an intent that the terms run consecutively. I write separately,
however, to emphasize my concern with the statutory scheme
and the consequences of the majority’s holding.

In denying Reynolds’s request for a nunc pro tunc designa-
tion, the BOP wrote, “The federal judgment was silent regard-
ing the execution of your service. As such, multiple terms of
imprisonment imposed at different times are deemed consecu-
tive unless the court dictates otherwise.” Reynolds argues that
the BOP improperly construed the federal sentencing judge’s
silence. He writes in his brief, “There is simply no support for
the BOP’s conclusion that the sentencing court’s silence
denoted an intent for consecutive terms of imprisonment.”

The BOP construes a federal judge’s silence at the time of
sentencing to indicate that the judge intends the federal sen-
tence to be consecutive to a yet-to-be-imposed sentence. As
I noted above, the third sentence of § 3584(a) provides a rule
of construction for a sentence imposed by a federal judge. The
third sentence provides, “Multiple terms of imprisonment
imposed at different times run consecutively unless the [fed-
eral] court orders that the terms are to run concurrently.” As
discussed above, a broad but permissible reading of this third
sentence is that it includes not only a situation in which the
federal term of imprisonment is imposed after a previously
imposed term of imprisonment that is still being served, but
also a situation in which the other term of imprisonment is yet
to be imposed. In Program Statement 5880.28, the BOP has
so interpreted this sentence. Section 3(e) of Program State-
ment 5880.28 provides, “On occasion, a federal court will
 REYNOLDS v. THOMAS 6837
order the federal sentence to run concurrently with or consec-
utively to a not yet imposed term of imprisonment. . . . If the
federal sentence is silent, or ordered to run consecutively to
the non-existent term of imprisonment, then the federal sen-
tence shall not be placed into operation until the U.S. Mar-
shals’ Service or the Bureau of Prisons gains exclusive
custody of the prisoner.”

In jurisdictions where the federal sentencing judge has the
authority to choose between a federal sentence that will run
concurrently with or consecutive to a yet-to-be-imposed sen-
tence, the operation of § 3584(a) and Program Statement
5880.28 is quite straightforward. The BOP can look to the
sentencing proceeding in federal court, apply the rule of con-
struction provided by the third sentence of § 3584(a) and the
Program Statement, and determine the intent of the federal
sentencing judge. Those jurisdictions include the Fifth,
Eighth, Tenth and Eleventh Circuits. See Mayotte, 249 F.3d
at 798-99; Williams, 46 F.3d at 58-59; Ballard, 6 F.3d at
1510; Brown, 920 F.2d at 1217.

But in jurisdictions where the federal sentencing judge does
not have the authority to choose between a concurrent and
consecutive sentence with respect to a yet-to-be-imposed sen-
tence, the rule of construction cannot be sensibly applied to
what the judge says, or does not say, at the time of sentencing.
Those jurisdictions include the Second, Fourth, Sixth, Seventh
and Ninth Circuits. See Donoso, 521 F.3d at 149; Smith, 472
F.3d at 225-26; Taylor, 284 F.3d at 1148 (citing Neely, 38
F.3d at 460-61; Clayton, 927 F.2d at 492); Romandine, 206
F.3d at 737-38; Quintero, 157 F.3d at 1039-40. In those juris-
dictions, it makes little sense to rely on the silence of the fed-
eral sentencing judge at the time of sentencing to determine
that judge’s intent in choosing whether the federal sentence is
to be concurrent or consecutive, because the judge in those
jurisdictions has no authority to make that choice at the time
of sentencing. Thus, there is no reason for the judge to say
anything. Even if the judge would like to impose a concurrent
6838 REYNOLDS v. THOMAS
sentence, a statement to that effect would have no legal conse-
quence.

In a situation where a request for a nunc pro tunc designa-
tion is made, the subsequent state sentence has already been
imposed. At least in a jurisdiction in which the federal judge
has no authority to choose between a concurrent and consecu-
tive sentence at the time of sentencing, the BOP sends a letter
asking the judge whether he or she now wants the federal sen-
tence to run concurrently or consecutively. See Program
Statement 5160.05 § 9(b)(4)(c) (“In making the determination
[whether to grant a request for nunc pro tunc designation] the
[Regional Inmate Systems Administrator of the BOP] will
send a letter to the sentencing court . . . inquiring whether the
court has any objections [to the designation].”). This request
by the BOP allows the federal sentencing judge in such juris-
dictions, after the state sentence has been imposed, to say
whether the federal sentence should be concurrent or consecu-
tive. (The record before us is not clear on the point, but it is
possible that the BOP asks the federal sentencing judge this
question in all jurisdictions, even those jurisdictions in which
the judge has the authority, at the time of sentencing, to
choose whether the sentence would be concurrent or consecu-
tive. But see id. § 9(b)(4)(e) (“No letter need be written if it
is determined that a concurrent designation is not appropri-
ate.”).) Once the BOP receives a response from the federal
sentencing judge, it takes that response into account in decid-
ing whether to grant the nunc pro tunc request. See id. § 9(a)
(“Concurrent service of federal and non-federal sentences in
a non-federal institution occurs when the [BOP] designates a
non-federal institution for service of the federal sentence.”);
9(b) (“Normally, designating a non-federal institution for the
inmate is done when it is consistent with the federal sentenc-
ing court’s intent.”).

In Reynolds’s case, the federal sentencing judge responded
to the BOP’s letter by stating that he had no comment on
whether the federal sentence should be concurrent or consecu-
 REYNOLDS v. THOMAS 6839
tive. In its denial of Reynolds’s request, the BOP construed
the judge’s silence as an indication that the federal sentence
should be served consecutively. The BOP’s statement did not
cite § 3584(a) but tracked both its language and its rule of
construction. In implicitly relying on § 3584(a) in construing
the judge’s silence, the BOP construed the third sentence of
§ 3584(a) to include not only the judge’s silence at the time
of imposing sentence, but also his later silence when asked
whether a nunc pro tunc designation was appropriate. That is,
the BOP construed the phrase “unless the [federal] court
orders that the terms are to run concurrently” to apply not
only to silence at the time of sentencing but also to silence in
response to a letter of inquiry from the BOP. This broad read-
ing of the third sentence of § 3584(a) is not an implausible
construction. I would therefore conclude that the BOP acted
properly in construing the sentencing judge’s answer to the
BOP’s letter, in which the judge refused to express a prefer-
ence, as an indication that a consecutive sentence was appro-
priate.

B. Separation of Powers

Reynolds argues that in denying him credit towards his fed-
eral sentence for time served on his state sentence, the BOP
violated the separation of powers. Reynolds first contends that
the BOP could not disregard the express view of the state
court judges that his state sentences should be served concur-
rently with his federal sentence. I agree with the majority that
this argument—in reality a federalism rather than separation
of powers argument—is foreclosed by our decision in Taylor.
We considered the full range of federalism arguments in Tay-
lor when we held that the federal government is not obliged
to give effect to the sentencing intentions of state court
judges. See 284 F.3d at 1151-53.

Reynolds also contends that in denying a nunc pro tunc
designation, the BOP arrogated unto itself a sentencing deci-
sion that properly belongs to the federal judiciary. The major-
6840 REYNOLDS v. THOMAS
ity declines to address this argument. It holds that any
separation of powers arguments about the BOP’s nunc pro
tunc authority are not properly before the court because the
BOP (initially) declined to grant a nunc pro tunc designation
in this case, and that the arguments are foreclosed by Taylor
in any event. The petitioner in Taylor, however, did not argue
that the BOP’s practice of granting and denying nunc pro tunc
designations violated separation of powers, and our decision
in his case did not purport to decide that issue. I therefore
regard the separation of powers issue as presenting an open
question in this circuit.

I agree with the majority that, on the record before us, the
separation of powers question is not squarely presented in this
case. However, because the majority’s opinion and our deci-
sion in Taylor may be erroneously read as foreclosing a sepa-
ration of powers argument, I write separately to discuss the
argument, and to join other circuits in requesting that Con-
gress address the issue through legislation.

Two of our sister circuits have addressed the separation of
powers argument and have voiced doubts about the constitu-
tionality of the BOP’s practice. In Abdul-Malik v. Hawk-
Sawyer, 403 F.3d 72, 76 (2d Cir. 2005), the Second Circuit
wrote:

A separation of powers issue arises when the same
branch of government that prosecutes federal prison-
ers determines concurrency in lieu of the judge. Fed-
eralism concerns are implicated because the federal
BOP is given the effective authority to enforce (or
not) a state court’s determination that a state sen-
tence should run concurrently. Given the divergent
readings of the statutory scheme in the various cir-
cuits, the open questions as to how to treat prisoners
sentenced first in the federal and then in the state
court, and the phenomenon (in some circuits) that
neither the state nor the federal court can run these
 REYNOLDS v. THOMAS 6841
concurrently, we respectfully invite congressional
consideration of these statutes.

See also Fegans v. United States, 506 F.3d 1101, 1104 (8th
Cir. 2007) (“[W]e agree with the Second Circuit that Con-
gress should examine the issue because it implicates impor-
tant federalism and separation of powers concerns . . . .”
(citing Abdul-Malik, 403 F.3d at 76)).

The separation of powers argument is stated in summary
form in the first sentence of the passage just quoted from the
Second Circuit’s decision in Abdul-Malik. In a slightly more
expanded form, the argument is as follows: The task of the
executive branch of the federal government is to prosecute
those accused of federal crimes and incarcerate those who are
convicted and sentenced to prison terms. The task of the judi-
cial branch is to preside over criminal proceedings and
impose sentence upon those who are convicted. A decision
whether a federal sentence should run concurrently or consec-
utively is a sentencing decision that should be made by a
member of the judicial branch. A decision whether to grant a
nunc pro tunc designation has the effect of determining
whether a federal sentence is served concurrently or consecu-
tively. Therefore, a decision whether to grant a nunc pro tunc
request is a sentencing decision that properly belongs to a
member of the judicial branch. The BOP is part of the execu-
tive branch, so a decision whether to grant a nunc pro tunc
request does not properly belong to the BOP.

There is a great deal not to like about the nunc pro tunc
procedure followed by the BOP. It is a jerry-built, ad hoc sys-
tem imposed upon the BOP by the Third Circuit in Barden,
based on a questionable reading of 18 U.S.C. § 3621(b). One
may easily understand what prompted the Third Circuit’s
decision in Barden: Without Barden or something like it,
some federal prisoners would serve consecutive federal and
state sentences despite the fact that both the federal and state
sentencing judges desired to impose concurrent sentences. But
6842 REYNOLDS v. THOMAS
under Barden, an important sentencing decision may be made
by the executive rather than the judicial branch.

On the facts of the case before us, I would hold that there
has been no separation of powers violation. In this case, the
BOP asked the federal sentencing judge whether he wanted
Reynolds’s sentence to be concurrent with or consecutive to
the state sentences. When the federal judge declined to state
a preference, the BOP used a permissible rule of construction,
based on § 3584(a), to conclude that the federal judge’s
silence meant that Reynolds’s sentence should be consecutive.
(Later, following another nunc pro tunc request by Reynolds,
the BOP again solicited the federal judge’s view. The judge
expressed that he had “no objection,” and the BOP granted
the request.) In this circumstance, I would conclude that the
BOP’s earlier denial of Reynolds’s request for a nunc pro
tunc designation was based on a permissible interpretation of
what the federal sentencing judge intended, and that its denial
thus did not violate separation of powers.

However, I note that, in responding to nunc pro tunc
requests, the BOP may not always abide by the intentions of
federal sentencing judges. For example, BOP Program State-
ment 5160.05 § 9(b) provides, “Normally, designating a non-
federal institution for the inmate is done when it is consistent
with the federal sentencing court’s intent.” (Emphasis added.)
The word “normally” indicates that the BOP will usually, but
not always, abide by the preference of the federal sentencing
judge. Further, in its letter to Reynolds’s federal sentencing
judge, the BOP wrote, “It is the preference of the Bureau that
the Federal Sentencing Court be given an opportunity to state
its position with respect to a retroactive designation, which,
while not binding, can be helpful in our determination to grant
or deny the request.” (Emphasis added.) The BOP’s use of the
phrase “while not binding,” indicates that the BOP does not
believe that it is required to abide by the preference of the
sentencing judge. Finally, it is possible that at least in some
circumstances the BOP does not solicit the view of the federal
 REYNOLDS v. THOMAS 6843
sentencing judge at all. See Program Statement 5160.05
§ 9(b)(4)(e) (“No letter need be written [to the sentencing
judge] if it is determined that a concurrent designation is not
appropriate.”). However, we do not have before us a case in
which the BOP has not solicited the view of the sentencing
judge or, having done so, has disregarded that view.

III. Request to Congress

In view of the questionable interpretation of § 3621(b) on
which Barden was based, the ambiguity of 18 U.S.C.
§ 3584(a), and the serious constitutional questions posed by
the BOP’s nunc pro tunc practice implemented pursuant to
Barden, I would join the Second and Eighth Circuits in
respectfully requesting Congress to give its careful attention
to the issues raised by the imposition of overlapping federal
and state sentences.