dissenting:
The majority opinion rests on two conclusions: 1) that the imposition of the sentence in the first case was the sole basis for Shelvy’s incarceration from May 15 to November 20, 1970, and 2) that a subsequent sentence ordered to run concurrently with an earlier sentence can only run with the unexpired portion of the earlier sentence. Because I believe that the first conclusion is incorrect and the second reaches an issue that was never addressed by the parties, I must dissent.
I. Credit Under 18 U.S.C. § 3568
The relevant statute awards credit for time spent in custody “in connection with the offense or acts for which sentence was imposed.”1 Shelvy was arrested on both charges on the same day. It is undisputed that before the imposition of the first sentence, Shelvy was being held “in connection with” both criminal charges.2 The majority *447holds, however, that between the imposition of the first and second sentences, the first sentence was the sole effective cause of Shelvy’s continued incarceration. In the majority view, the second charge became irrelevant; his custody was only “in connection with” the criminal sentence, and not “in connection with” the pending charge.3
In most criminal cases that are appealed, however, the imposition of a sentence does not mandate immediate imprisonment. Convicted criminal defendants are ordinarily released on bond and their sentences are stayed pending resolution of their appeals.4 Shelvy did pursue an appeal. Had Shelvy been granted and been able to make bail, he would have been free for the six months at issue in this case. But bail was not even a possibility for Shelvy. As the majority correctly points out, “while Shelvy was held in lieu of a money bond in case 1, the armed robbery case, he was held without bond in case 2, the murder case.”5 Just as the second, nonbailable charge foreclosed release on the first charge prior to the first conviction, so too the second charge foreclosed release after the first conviction. In both situations, the second charge was fully sufficient to hold Shelvy; the first was not either before or after conviction. Shelvy could have been released on the conviction; he could not have been freed on the second charge. It therefore is illogical for the majority to conclude that Shelvy was in custody only “in connection with” the first charge and not “in connection with” the second.
Given that the second charge effectively precluded possible release on the first conviction, it is inescapable that, at the very least, Shelvy was held “in connection with”
both the sentence and the second charge from May 15 to November 20, 1970. The government concedes that Shelvy was held from his arrest until the May 15 sentencing on both charges. It is similarly undisputed that Shelvy was held on both convictions after the November 20, 1970 sentencing. In view of the second charge’s prevention of post-conviction release, I cannot agree that the imposition of the first sentence could make the second charge a nullity for six months, after which it could arise again to serve as a cause of confinement. Shelvy was held “in connection with” the second charge from his arrest until the second conviction. Under 18 U.S.C. § 3568, he should receive credit against the second sentence for this entire period.
Granting the credit requested would not require an alteration in the operation of the concurrent sentences. The statute directs the Attorney General to give a prisoner “credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.”6 Since Shelvy was held “in connection with” the second charge, as well as the first sentence, he is entitled to an administrative credit against the second sentence. The awarding of this credit would not require post-dating the first sentence or back-dating the second. It would merely oblige the Attorney General to credit an additional six months of presentence custody against the second sentence.
II. Operation of Concurrent Sentences
Having assumed that alteration of the concurrent sentences would be necessary, the majority grounds its holding on its con*448struction of the proper operation of concurrent sentences.7 I express no opinion as to the correctness of this construction. I cannot accept, however, the majority’s resolution of this vexing and ambiguous legal question given the present posture of this case.
Neither Shelvy, in his pro se brief, nor the government, ever addressed this issue, Moreover, this panel, although specifying two other questions for briefing, never deemed it necessary to request that amicus address the issue of judicial power to affect the timing of concurrent sentences.8 Given the dearth of information before us, the absence of precedent in this circuit,9 and the unilluminating precedents from other circuits,10 the majority’s resolution of this *449question is patently premature. Supplemental briefing and argument seem essential to a considered disposition of this case.
. 18 U.S.C. § 3568 (1976).
. Indeed, Shelvy was granted credit against both sentences for the period between his arrest and the first sentence. Majority opinion (Maj. op.) at 443.
. See maj. op. at 444.
. See 3A C. Wright, Federal Practice and Procedure § 767 at 122 (1982); Harris v. United States, 404 U.S. 1232, 1232, 92 S.Ct. 10, 12, 30 L.Ed.2d 25 (Douglas, Circuit Justice, 1971) (post-conviction bail may be denied “only for the strongest of reasons” (quoting Seilers v. United States, 89 S.Ct. 36, 21 L.Ed.2d 64 (1968))); Leigh v. United States, 82 S.Ct. 994, 996, 8 L.Ed.2d 269 (Warren, Circuit Justice, 1962); Ward v. United States, 76 S.Ct. 1063, 1065,1 L.Ed.2d 25 (Frankfurter, Circuit Justice, 1956); see also 18 U.S.C. § 3148 (1976) (release pending appeal should be treated as release prior to conviction unless it appears that (1) appeal is frivolous or dilatory; (2) there is reason to believe that conditions of release will not prevent absconding; (3) there is reason to believe the convicted defendant poses a danger to the community).
-Maj. op. at 445.
. 18 U.S.C. § 3568 (1976).
. In addition to its finding that no statute authorizes a change in the operation of concurrent sentences, the majority also concludes that even if the sentencing court had that power, it did not exercise it in this case. As discussed below, infra note 8,1 do not find this conclusion adequately supported.
. The majority asserts that, had he intended to make Shelvy’s sentence “fully concurrent,” the sentencing judge would have done so by imposing less than the maximum sentence. Maj. op. at 446 n. 8. Although the intent of the trial judge is not dispositive in this case, the court’s inferences as to his intent are nevertheless without adequate bases. It is as possible that he imposed the maximum sentence because of a belief that time already served would be credited. I venture no opinion as to what the sentencing judge did intend in passing sentence; but I think it unwarranted to infer an intention merely from the imposition of the most severe sentence. The “contemporaneous interpretation” of concurrent sentences to which the majority refers, maj. op. at 446 n. 8, was an unpublished order of this court, hardly the sort of authority that we can assume informed the sentencing judge. That unreported case, moreover, was factually distinguishable from this case. See infra note 9. In view of the majority’s inability to infer the sentencing judge’s intent from the record, I must take issue with the majority’s finding that “it is evident that no such order was made in this case.” Maj. op. at 446.
. The majority cites an unpublished order of this court, O’Connor v. Rodgers, No. 22,853 (D.C.Cir. June 24, 1970), aff'g Habeas Corpus 233-68 (D.D.C. Nov. 20, 1968). See Maj. op. at 444 n. 4. As the majority correctly notes, an unpublished order cannot be invoked for its precedential value. D.C.Cir.R. 8(f). The majority asserts that it cites this order not to support its position, but to illustrate that its position is so well settled that even an opinion is unnecessary. In view of the majority’s assertion, its extended treatment of these purportedly settled issues is puzzling. Moreover, O’Connor v. Rodgers is clearly distinguishable on its facts from the instant case. Since the decision is unpublished, some recitation of the facts is necessary to illuminate the differences between the two cases.
O’Connor was arrested in case 1 in October, 1964. He made bail and was released. In January, 1965, he was arrested in case 2 and failed to make bail. He remained in custody until May, 1965, when case 2 was dropped. He was convicted in June and sentenced in July of 1965 in case 1. He applied for and was granted appeal bond of $2500 in case 1. On January 10, 1966, he posted the appeal bond and was released. Eleven days later, O’Connor was arrested yet again, in case 3. Bail was set at $3500; he was unable to post this sum and remained incarcerated. He was convicted and sentenced in case 3 on April 25, 1968. The sentence was ordered to run concurrently with the conviction in case 1 nearly three years earlier. O’Connor sought and was denied credit against sentence in case 3 for the time served after his rearrest and failure to post the higher bond in case 3.
Shelvy was arrested on the same day for the two crimes. That the longer sentence was imposed after the shorter sentence was a mere fortuity. O’Connor, however, was arrested for the crime for which he received a longer sentence over a year after the first arrest and six months after he received the first sentence. Indeed, the latter crime had not even been committed when the first sentence was imposed.
Shelvy, in addition, was never given an opportunity to post pre- or post-conviction bond; the second charge at all times kept him unconditionally incarcerated. O’Connor was granted and made bail both before and after his first conviction. Even after his arrest while free on appeal bond, O’Connor was granted bail in case 3. We do not know from the record whether appeal bond was revoked after the case 3 arrest. If it was revoked, then O’Connor’s custody on the conviction was unconditional, while custody on the charge in case 3 was conditional. This is precisely the reverse of Shelvy’s situation. If O’Connor’s appeal bond was not revoked, then custody in both cases was conditional. For Shelvy, custody was at all times conditional in the first case and at all times unconditional in the second case.
. None of the cases cited by the majority that do construe the meaning of concurrent sentences offers any support or explanation for those constructions. With respect to the Fifth *449Circuit cases, Flores cites to Wilson and Wilson reprints a district court order simply asserting that “[a] sentence cannot commence prior to the date it is pronounced even if it is to be concurrent to a sentence already being served.” 468 F.2d 582, 584 (5th Cir.1972). Del Genio denied the relief requested, but asserts, in dicta, that a sentencing court could do what the Wilson court said it could not do: make a sentence retroactive. I.do not claim that any of the holdings in these cases fail to support the propositions for which they are invoked by the majority. It is abundantly clear, however, that they lack the clarity, consistency, or persuasive reasoning necessary to warrant acceptance in this circuit.