1. Lauren Woods & Charles Bleil
Sentence Computation
Lauren Woods & Charles Bleil
Hello everyone. I’m Lauren Woods. Charles Bleil and I are here to talk to you today about sentence computation issues. And when I say sentence computation, I’m mainly talking about how much credit the BOP will give your client for the time he spent in jail.

2. Why are we talking about this
Preventing clients from serving more time than necessary
Clear up confusion around the meaning of “concurrent”
Easy tips for ensuring client gets the credit he deserves
Now, this is important, because oftentimes, even though a judge orders your client’s federal sentence to run concurrently to another pending state case he might have, that doesn’t automatically mean that your client’s going to receive credit for all the time he spent in jail waiting for his federal case to finish.
We’re hoping this session will help you (CLICK) prevent clients from serving more time than necessary, (CLICK) clear up any confusion you may have over what a “concurrent” sentence means, and (CLICK) to give you some pretty easy tips to ensure your client gets the credit he deserves.

3. Agenda Back to Basics 4 Practical Scenarios
Client in federal custody on a state writ
Client gets a federal sentence to run concurrently with one state sentence but consecutively to another state sentence
Client is convicted of a 924(c) charge and robberies in his federal case and has state cases for the same conduct
What to do with not-yet-filed state cases
ICE custody
Misc. Practical Advice
Charles is going to start us out by going over the basic principles behind sentence computation and what exactly a concurrent sentence means.
Then we’ll talk about four different scenarios that we frequently see, and explain what to do to ensure your client gets credit for time he’s served in jail. – These scenarios are (1) when your client is physically in federal custody but legally belongs to the state due to a writ. (2) when a federal judge orders your client’s sentence to run concurrently to one pending state case he has but consecutively to another unrelated pending state case, (3) what to do when your client is convicted of possessing a firearm in connection with a drug trafficking offense or a crime of violence – otherwise known as a 924(c) charge – and the client receives a separate sentence at state for the same offense conduct, and finally (4) what to do about state cases that haven’t been filed at the time of the federal sentencing, but are likely to come up.
Charles is then going to briefly discuss what you should do if your client spends time in administrative custody – or ICE custody – before being transferred to federal custody, he’ll discuss how the First Step Act affects good time credit, and finally tell you an easy way to figure out where your client is located and what his or her projected release date is.

4. Let’s Start at the Very Beginning
18 U.S.C. § 3585
According to 3585(a), federal sentences normally begin on the date a defendant arrives at a federal prison.
And subsection (b) allows a defendant to receive custody credit for time he spent prior to arriving at federal facility if (1) the time in custody was for the same offense for which the sentence was imposed, or (2) as a result of an arrest on another charge after the commission of the federal offense
But don’t forget these last words – “THAT HAS NOT BEEN CREDITED AGAINST ANOTHER SENTENCE”

5. “THAT HAS NOT BEEN CREDITED AGAINST ANOTHER SENTENCE”
Practical effect of this language is that a client won’t receive any credit for time spent in custody on a state writ before he is sentenced federally.

6. What matters most WHO arrested the client first
NOT WHERE the client is physically located
If client is in primary federal custody, no need to worry
Primary federal custody if
Hasn’t been picked up by the state at time of federal arrest
Or released on bond at state before federal arrest

7. Primary State Custody
Make sure the PSR correctly states whether the client is in primary state or federal custody. If it’s incorrect, object.

8. But what if judge says “concurrent”?
Concurrent ≠ Retroactive
“Concurrent” means a federal and state sentence will begin to run at the same time after the federal sentence is imposed.
See Interaction of Federal and State Sentences When the Federal Defendant is Under State Primary Jurisdiction, by Henry J. Sadowski
Available at FD.org
Now you might be asking yourself, what if I get the judge to order the federal sentence to run concurrently to the state sentence or sentences. Won’t that solve my problem? Well, you wouldn’t be alone if that’s what you thought, but you’d be wrong.
Concurrent does not mean retroactive.
If you’d like to read more about the interaction of state and federal sentences, we recommend you check out the Sadowski memo that’s available on the FD.org website

9. Scenario 1: Client on a writ
What in the world is a writ?
Client arrested on January 1, 2016 by DPD for Unlawful Possession of a Firearm
Goes to Dallas County, where he is charged with UPF on the same day
Client is indicted federally on January 1, 2017 for Felon in Possession of a Firearm
On January 10, 2017, client has initial appearance and is transferred to FDC Seagoville.
(State case still pending)
January 1, 2018, client receives 60 months for his federal case to run concurrently with state case
Client goes back to Dallas County
On January 10, 2018, client receives 60 months at state
So the first scenario, is probably the most common scenario for federal practitioners. It’s when your client is in federal custody on a state writ.
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Now, what in the world is a writ?
To make it simple, when a client is on “a writ,” it means he’s in primary state custody. The state controls. We see this frequently in gun cases.
For instance,
Client is arrested on January 1, 2016 by Dallas Police Department for Unlawful Possession of a Firearm,
He goes to Dallas County, where he’s charged with UPF on the same day
He doesn’t make bail, and he sits over at Frank Crowley while his state case is pending.
A year later, on January 1, 2017, the feds indict your client for Felon in Possession of a Firearm
Ten days later, on Jan 10, 2017, the marshals get your client from Frank Crowley and bring him to federal court for his initial appearance.
That night, he goes to FDC Seagoville where he remains until he's sentenced federally.
Meanwhile, his state case is still pending.
At this time, your client is physically in federal custody but legally in state custody.
Another year later, on January 1, 2018, your client is sentenced to 60 months for his federal case, and the judge orders that it run concurrently with the pending state case he has for unlawful possession of a firearm.
After your client is sentenced, he goes back to Dallas County, and
10 days later, he gets 60 months to run concurrently to the federal sentence.

10. How to Compute the Federal Sentence?
Federal sentence start date?
January 1, 2016 – date of arrest
January 1, 2017 – date of federal indictment
January 1, 2018 – date of federal sentencing
Federal Sentence Commences on January 1, 2018
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 that has not been credited against another sentence
Now how in the world does BOP compute or calculate when your client’s federal sentence of 60 months begins?
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Who here thinks the federal sentence of 60 months begins on
January 1, 2016 – the date the offense was committed and the date the client was first taken into custody for this offense?
Who thinks it begins on January 1, 2017 – the date the client was indicted federally?
Who thinks it begins on January 1, 2018 – the date on which he actually received his 60-month sentence in federal court?
Well,
those of you who answered C should come see me after this presentation. I have a gold star to give you.
The federal sentence actually commences in this situation on January 1, 2018 – the date on which it was imposed.
And we know this from 18 USC 3585(b)

11. Communicate with the state actors
What do we do?
Get a bond at state
U.S.S.G. § 5G1.3
Communicate with the state actors
So what, as defense counsel, can we do to ensure our client receives credit for every day he’s spent in custody?
There are three easy tools to try and eliminate the risk that our client spends more time in jail than necessary.
(1) try and get your client a bond at state,
(2) If Part D of the PSR doesn’t have language re: a sentencing “adjustment” under 5G1.3, file an Objection. If it does have that language, file a Motion for a Sentence “Adjustment” based on 5G1.3
And (3) communicate with state actors.

12. Getting a Bond at State
The first thing you can do is to try and get your client a bond at state.
If you get your client a bond at state, he’ll no longer be on a writ.
Once he’s no longer on a writ, he’ll no longer be in primary state custody, and he’ll receive credit for any time he spends locked up waiting for his federal sentence

13. Getting a Bond at State Cont’d.
Communicate with all of the state actors
Client
Assistant District Attorney
State defense attorney
How do you do this?
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Communicate with state actors.
First, you Need to make sure your client understands that he’s not getting out. Explain to him that The purpose of getting a bond at state is so he can get credit for time he’s served. Not so he can go home.
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Then, talk with the DA and your client’s defense attorney for the state case if he has one. Explain what you’re trying to do, ensure them that your client won’t be released if they agree to a bond, and see if they can work something out.

14. §5G1.3 - IMPOSITION OF A SENTENCE ON A DEFENDANT SUBJECT TO AN UNDISCHARGED TERM OF IMPRISONMENT OR ANTICIPATED STATE TERM OF IMPRISONMENT
The next thing you should do if your client is in primary state custody is look to see whether the PSR contains language about a sentencing adjustment pursuant to section 5G1.3 of the guidelines.
And, if you leave this presentation only remembering one thing, I hope this is it.
Section 5G1.3 deals with the imposition of a sentence on a defendant subject to an undischarged term of imprisonment or an anticipated state term of imprisonment.

15. §5G1.3(c)
If subsection (a) does not apply, and a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.
U.S.S.G. § 5G1.3(a) - If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.
And I want to first start by talking about 5G1.3(c), which says
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“if subsection (a) does not apply, and a state term of imprisonment is ANTICIPATED to result from another offense that is relevant conduct to the instant offense – (SO, IT’S TALKING ABOUT SITUATIONS LIKE THIS FIRST SCENARIO – WHERE YOU HAVE A GUN CASE AT STATE AND A GUN CASE WITH THE FEDS), then the sentence for the instant offense shall be imposed to run CONCURRENTLY to the anticipated term of imprisonment.
And just for the record, 5G1.3 (a) is talking about when an offense was committed while your client was doing time or after being sentenced for another offense. That’s not what we’re talking about here.

16. Relevant Conduct - § 1B1.3
Did the conduct underlying the anticipated state sentence increase the federal guideline range?
Was the conduct underlying the anticipated state sentence not necessarily “relevant conduct” but taken into account as an aggravating circumstance for a federal sentence?
Can still ask for an adjustment under 5G1.3(d), but it’s not an entitlement.
As a refresher, relevant conduct is set out in section 1B1.3 of the guidelines.
But, practically speaking,
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you can just ask yourself if the conduct underlying the anticipated state sentence increased the federal guideline range. If it did, it’s “relevant conduct.”
If not, it might not be related.
But, you can still ask for the judge to run it concurrently pursuant to 5G1.3(d)
5G1.3(d) – (Policy Statement)

17. §5G1.3(b)(1)
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 subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), 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 federal sentence by the Bureau of Prisons...
Now, 5G1.3(c) is great for us – and it addresses the exact situation we’re talking about – when a client has a pending state charge that is related to the federal case.
But, we don’t stop there. We have to refer to 5G1.3(b)(1), which refers to the mechanism by which we get credit for all time served- a sentencing ‘adjustment.’
5G1.3(b)(1) says, “if subsection (a) does not apply (AND AS WE ALREADY DISCUSSED, IT DOESN’T APPLY HERE), and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction 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 federal sentence by the BOP”
Now, going back to 18 USC 3585(b) – we know that the BOP isn’t going to give credit for time your client did prior to the date your client receives a federal sentence if that time is credited against another sentence.
If your client gets time at state for that UPF, then state is going to give your client credit for all the time he spent in custody beginning on the date of his arrest – Jan 1, That means the two years your client spent in jail from the date of his arrest on Jan 1, 2016 until the date of his federal sentence on Jan 1, 2018 – won’t count towards the 60-month sentence he received for his federal case UNLESS you get a sentencing ”adjustment”

18. Part D of the PSR – Sentencing Options
So, you can either file an objection to the fact that Part D – Sentencing Options – of the PSR doesn’t contain a reference to 5G1.3,
and this is an example of a PSR that mentioned 5G1.3 generally, but didn't discuss a sentencing adjustment - so I filed an objection to the fact that it didn't recommend a sentencing adjustment
OR, you could file a sentencing memo, asking the judge to include the following language in the Judgment – (read magic language)

19. Magic Language in the Judgment
Pursuant to United States Sentencing Guidelines §5G1.3(c), it is this Court's intent for the Defendant to receive a sentence adjustment to account for any time that the Defendant spent in custody beginning on January 1, 2016, that the Bureau of Prisons will not credit under 18 U.S.C. § 3585(b). The Court wishes to adjust the defendant’s federal sentence so as to be fully concurrent with his state sentence.
According to unnamed sources at the BOP, the key is to include word “adjustment” and make reference to 5G1.3(c) and the date your client was arrested at state for this offense.

20. Don’t be confused NOT a downward departure NOT a variance
IS an ”adjustment”
Purpose: to notify the BOP of the Court’s intent
Court CANNOT order jail credit. That’s only done by the BOP
Don't be confused.
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This isn't a DD
It's also not a variance we're asking for
It's an "adjustment"
The purpose is to notify the BOP that the Court intends for your client to get credit for all the time he's served for this offense
A common misconception defense attorneys have is that the court can just order the BOP to give credit to someone for time they spent locked up. A Court can't order jail credit. The BOP is the only entity that has the power to calculate jail credit.

21. Communicate with State Actors
Assistant District Attorney
Client’s defense attorney at state
Send the judgment
Clear up confusion
Finally, make sure you communicate with state actors
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Call the DA and your client’s defense attorney at state, if he has one. Let them know what your client received federally and
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send them a copy of the judgment.
Explain that if they don’t dismiss charges, the two years the client spend in jail before receiving his federal sentence will be credited towards his state sentence and not his federal sentence. Clear up the confusion that a sentence of ”time served” or “backtime” results in a partly stacked sentence.

22. Scenario 2 – concurrent and consecutive sentences
January 1, 2015 – Client arrested at state for felon in possession
Released on bond
January 1, Client arrested at state for Possession with Intent to Distribute Meth
Held at state
January 1, 2017 – Client indicted federally for Possession with Intent to Distribute Meth
Transferred to federal custody on a state writ
January 1, 2018 – Client receives 60 months for her federal case to be run concurrently with the state drug charge but consecutively to the state gun charge
Transferred back to Dallas County
January 10, Client receives 24 months for both state cases, to be run concurrently to each other
Now, things get a little messy when the federal judge orders your client’s sentence to be run concurrently with offense A that’s pending at state but consecutively with offense B, if, as frequently happens, the state judge orders these two sentences to run concurrently.
For instance, (go thru timeline)

23. What the . . . Setser v. United States, 132 S. Ct. 1463 (2012)
So in this situation, the state has frustrated the intent of the federal court by having both of the state terms running at the same time.
What usually happens (but not what is guaranteed to happen) is that the BOP would treat the federal sentence as concurrent to both state sentences, since they’re running at the same time. This would probably be the situation that would most reflect the federal judge’s intent.
If this happens, and the BOP is still running the federal sentence consecutively to the state sentence, call one of the BOP computation teams to notify them of the issue. They should be able to help
In the case of Setser v. US, Judge Cummings ordered federal sentence to run concurrent to one but consecutive to another. Bureau intitially ran consecutively so guy filed 2255 or something and ultimately S. Ct. said state messed up intent of federal court and up to BOP to calculate and if inmate doesn’t like he can file habeas petition and what BOP did was run concurrently to both state cases. The BOP should be following the example in Setser.

24. Scenario 3 – 924(c)
Client is in state custody and charged at state with aggravated robberies A, B, C, D, and E.
The Feds indict client and bring him to federal custody on a state writ.
Client is convicted in federal court of: (1) a conspiracy count that includes the conduct in robberies A, B, C, D, & E; (2) a Hobbs robbery count for the conduct that is the same as robbery A; and (3) a 924(c) count for robbery A.
The federal judge sentences client to 7 years for the 924(c) to be served consecutively with the 11 years on the remaining counts for a total of 18 years in prison. The federal judge orders that the federal sentence be served concurrently with any sentences imposed in pending state cases A, B, C, D, & E.
Client receives 20 years at state for robberies A through E to be served concurrently with the federal sentence
Scenario 3 involves a situation where your client is convicted of 924(c) – possessing/using a gun in connection with a crime of violence or a drug trafficking crime. This gets tricky because the statute actually mandates that a sentence for a 924(c) be run consecutively to ANY other sentence.
However, the language in judge’s order actually is what matters.
So, here’s the example:
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Client is in ...

25. What does the statute say?
18 U.S.C. § 924(c)(1)(D)(ii) says “no term of imprisonment on a person under this subsection shall run concurrently with any other term of imprisonment imposed on this person, including any term of imprisonment imposed for the crime of violence. . . During which the firearm was used, carried or possessed.”
What does the statute say?
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Well, it basically mandates that a sentence for a 924(c) conviction CANNOT run concurrently to ANY other sentence imposed. Period.

26. What does the BOP do? The judge’s order trumps.
If the federal judge ordered the entire 18-year federal sentence (7 years for the 924(c) count and 11 years for the robberies) to run concurrently with the pending state cases,
The federal sentence would commence on that date of imposition, and
The BOP would honor any language in the Judgment that the federal sentence is to run concurrently with the state sentence, despite the statute directing otherwise.
Fortunately, the BOP cares more about what the judge wants than what Congress said in the statute.
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According to the BOP, the judge’s order is what they go by.
For instance, if a judge ordered the entire 18-year federal sentence...

27. Scenario 4 – A sentence yet to be imposed
Same client is also guilty of robberies F & G but has not been charged with these at the time of his federal sentencing.
After the federal sentencing, client is indicted at state for robberies F & G.
Problem:
Sentences are consecutive unless there is a reason not to run them consecutively
Solution:
Request language in the judgment ordering any sentences that result from any cases that are, in the future, brought against defendant for F & G, to be run concurrently to the federal sentence
The BOP would honor any language in the Judgment that the federal sentence is to run concurrently with yet-to-be-imposed or even yet-to-be-filed state cases.
Now the fourth and final scenario deals with this same client as the last scenario.
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This client is also guilty of robberies...
After the federal sentencing...
The problem is that
The solution, however is easy.
Request language
The BOP would honor...

28. Is it too late?
Now, if after your federal sentencing, you discover that the BOP didn’t give credit for the time your client spent locked up in primary state custody, or if you forgot to ask the judge to put that magic language in the judgment and you’re pretty sure the BOP isn’t carrying out the judge’s intention, we have some remedies.

29. File a Motion to Amend or Clarify Judgment Pursuant to Federal Rule of Crim. Pro. 36
Have the Judge write a letter indicating her intent to the Chief of the Designation Sentence & Computation Center:
John O’Brien
346 Marine Forces Dr.
Grand Prairie, TX 75051

30. ICE custody
Example:
Client arrested by immigration officials on June 1, 2015.
Client indicted for Illegal Reentry June 10, 2015.
Client transferred to federal custody July 1, 2015.
BOP doesn’t count this time
Not “official detention”
See 18 U.S.C. § 3585(b)
File motion asking for variance to account for time spent in ICE custody
Not departure
Not adjustment
18 U.S.C. § 3553 factor of avoiding unwarranted sentencing disparities
Another issue that comes up in illegal reentry cases is the problem of administrative custody
Oftentimes, a client will be detained in ICE custody for a period of time before being transferred to federal custody
And, as defense counsel, we want do everything we can to try and ensure our client gets credit for the time they spent in ICE custody

31. First Step Act 54 days off per year served 10 year sentence
After year 1, they’ll have 10 years minus 54 days (or 3,596 days)
Once you get to year 9, there won’t be a full year to serve, so you won’t get back time for that
Pro-rated and averages out to 47 days good conduct time per year for a 10-year term
54 days off per year imposed
At year 10, instead of prorating the final year, you’ll get that 54 days for the 10th year of a sentence you received
Up to 7 days more per year
Takes effect July 19, 2019
Some of your clients might ask you about the new good time policy that’s happening as a result of the First Step Act.
Before the First Step Act, clients would receive 54 days good time per year served

32. Locating a federal inmate
or you can google
Just need client’s name or Federal Reg. No
Will tell you where client is housed and what their projected release date is

33. Questions? Lauren@laurenwoodslaw.com or 469-999-3363–
BOP’s Designation & Sentence Computation Center’s main number –
If you have questions or want a form motion, feel free to contact Lauren or Charles.
Also, you can call the BOP’s DSCC’s main line – they actually have a designated receptionist to answer the phone, so that’s a great resource for these types of questions