FEDERAL DEFENDERS OF NEW YORK & SECOND CIRCUIT JUDICIAL COUNCIL PRESENT

Transcription

1 FEDERAL DEFENDERS OF NEW YORK & SECOND CIRCUIT JUDICIAL COUNCIL PRESENT DEMYSTIFYING THE B.QP.: TIME COkfPUTA TIONS., DESIGNA TION., PROGRAMS, AND ADVOCACY A FREE CLE PROGRAM Friday, December 7, 2012 New York Law School, 185 West Broadway,, New York, NY PROGRAM MATERIALS

2 DEMYSTIFYING THE B. 0. P.: TIME COMPUTA TIONS, DESIGNA TION, PROGRAMS, AND ADVOCACY Friday, December 7, 2012 Table of Contents Agenda Michael D. Tafeishi, Esq. Materials _....._... 2 Designation and Programs,...,...,.....,,..,,.,.,......,.,.,..,,..,,,...,...,,..,... 2 FAQ's Interaction of Federal and State Sentences, $ester V. United States, 132 S,Ct, 1463 (2012)......,.,,...., John L Badalamenti, Esq., Materials....,,, Note-Taker Friendly Powerpoint Excerpts Speaker Biographies ,.,

3 DEMYSTIFYING THE B. OP.: TIME COMPUTA TIONS, DESIGNATION, PROGRAMS, AND ADVOCACY Friday, December 7, 2012 AGENDA 10:00 Opening Remarks: David Patton, Executive Director, Federal Defenders of New York 10:15 Information from the Source Michael Tafeiski, Esq., Regional Counsel, Federal Bureau of Prisons, Northeast Region 11:30 Getting the Best Results John L Badalmenti, Esq. Assistant Federal Defender, Appellate Division, Middle District of Florida 12:45 Closing Remarks: David Patton Co-sponsored by: The Federal Defenders of New York The Second Circuit Judicial Council 21

4 FEDERAL BUREAU OF PRISONS ISSUES presented to the Fall Training Seminar for CJA Panel Attorneys Southern District of New York MICHAEL D. TAFELSKI, REGIONAL COUNSEL NORTHEAST REGION DECEMBER If Most designation and transfer functions have been shifted to the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas. Designation teams are grouped by judicial districts: Eastern and Southern NY are handled by Delta Team. Correspondence can be sent via to G-DSC/PolicyCorrespondence&AdminRemediesbop.gov. In addition, responsibility for sentence computations has also been assumed by DSCC. Judicial recommendations concerning designation or programs are best placed on the Judgement and Commitment order. Medical designation decisions (and transfers) are made by the Office of Medical Designations and Transfers. The Bureau has adopted a level of medical care approach to assist in designating medical needy inmates to institutions where medical care is more readily available. Four care levels are used: care level I is the least in need of medical care, and level 4 is the most in need of care. Costs will be saved by minimizing extended medical trips. For example, PCI McKean PA and PCI Ray Brook, NY will only house care level 1 inmates, The Bureau is also experiencing population pressures at the Federal Medical Centers (also known as medical referral centers (MRCs). The level of care approach is designed to help in freeing bed space for inmates who require designation to a medical center. A similar Care Level system has been implemented for Mental Health issues. To assist in overall bed space pressures, the Bureau has been entering into-contracts with private correctional companies (including the Northeast Ohio Correctional Center, Youngstown, Ohio and Moshannon Valley, Phillipsburg, PA). These contract institutions house low security federal inmates who are either District of Columbia offenders or deportable aliens, There are five levels of federal institutions: minimum,low, medium, high, administrative (pretrial, medical). Pretrial inmates, while the responsibility of the U.S.M.S., are routinely housed in a HOP administrative detention facility if one is located in the vicinity. The factors considered in assessing security level include: offense severity, type of detainers, expected length of incarceration, criminal history, history of escape or violence, voluntary surrender, The Presentenee Investigation Report is the key document and provides most of the factual basis. The criminal history category found by the Sentencing Court is used to score part of the Bureau classification. As a general rule, the Bureau tries to designate to an appropriate security level

5 within 500 miles of residence, In addition to security level, there area host of other items considered in reaching a designation decision. These include judicial recommendations, medical concerns, mental health, atypical nature of offender (former law enforcement officer, high publicity, unusually vulnerable, cooperator), atypical nature of offense (terrorist, sex offender), separation needs, and deportable alien. Inmates are not permitted to kep a copy of their own Presentence Report (except prior to sentencing), but inmates are pei rnitted access to the Report, (Program Statement No Release of Information, Page 15). During the criminal proceedings, the District Court can commit the defendant to the Bureau for a study to address both mental issues and physical medical conditions, With regard to "psych studies" (under 18 U.S.C et. seq.), the Bureau primarily uses certified forensic psychologists employed at various locations throughout the Bureau (not just at MRCs), Thus, it is requested the Court order NOT specifically limit the study as a "psychiatric evaluation to be done at a Bureau MRC". With regard to "medical issues", the Bureau can properly manage most, if not all, medical issues. Prior to sentencing, Courts can commit a Defendant if it "desires more information" on the medical condition if there is a compelling reason for the study to be done by the Bureau. (18 U.S.C. 3552) (not common). If the court makes findings regarding controverted matters contained in the Presentence Investigation Report that may affect the defendants classification, the court should record these findings in the Statement of Reasons attachment to the Judgement and Commitrhent Order, See Fed, R. Crim, P. 32(c)(1), Most Bureau of Prisons Program Statements maybe found at Program Statement 5100,08, Security Designation and Custody Classification, (131 pages) maybe found there, The public web site has considerable information about individual institutions (visiting, directions) and an Inmate Locator. Defendants (and defense counsel) who are granted voluntary surrender will be directed to the USMS to learn designation. The Bureau considers recomrnendations,from sentencing judges and follows over 70%,of judicial recommendations. The Bureau receives judicial recommendation in about half the cases: Instead of recommending a specific institution, it is more helpful for the court to recommend the purpose; i.e., close to fanlily, receiving drug treatment, etc. When only a specific institution is noted, bed space or separation concerns may prohibit placement to that specific institution. Knowing the underlying purpose affords the Bureau more flexibility. Asa general rule, the Bureau attempts to designate an inmate within 500 miles of his or her residence. There are situations which can cause the designation to be outside the usual 50.0 mile radius, e.g., former law enforcement officer, high publicity, vulnerable or cooperating inmate, lack of bed space. Unless the Court requests a reply from the Bureau, Bureau practice is not to send a response to the court even if the recommendation cannot be followed.

6 The Sentencing Court has jurisdiction and authority to order mans things concerning a fedeial sentence The following is a list of what the court cannot order (at least legally) Place of incarceration 18 US.C Earlier Coiflntenement of federl sentence - 18 U.S.C. 3585(a)* Credit towards sentence for presentence custody - 18 U.S.C. 3585(b)* Referral into RRC or home detention - 18 U.S.C. 3621(b), 3622, 3624(c) Temporary release on furlough - 18 U.S.C Participation in a specific program - 18 U.S.C Participation in Residential Drug Abuse Program - 18 U.S.C. 3621(e) The Sentencing Court can recommend any of the above and the Bureau will consider unless the recommendation violates a statute, The Sentencing Court has jurisdiction to order :.participation in specific programs or placement in community custody as a special condition of eitherprobation or supervised release. In addition, the Court can only grant a Compassionate Release or Reduction in Sentence "upon motion of the Director of the Bureau of Prisons"(18 U.S.C (c). (P.S. No ) *Recommendations in sentence calculations are nioi e complicated: A judicial recommendation (or order) for credit for time served is unnecessary: the Bureau is required to grant such credit when appropriate; under 18 U.S.C. 3585(b), When thereare multiple sentences already imposed or expected to be imposed, options will turn on the specific facts; It would be best to contact Regional Counsel s office to discuss the specific situation. All sentenced fedi al inmates are required to work with the exception of those who, for security, educational, or medical reasons, are unable to do so, An inmate does not have any right to a particular job assignment. Most inmates are assigned to an institution job such as food service worker, orderly, plumber, painter, warehouse worker or. groundskeepe.r. These work assignments pay from 12 cents to 40 cents per hour. Federal Prison Industries (UNICOR) is one of the Bureau s most -important and cost effective correctional programs. UNICOR s, goal is to employ and provide job skills training to the greatest practicable number of inmates confined within the Bureau. TJNICOR work assignments pay inmates from 23 cents to $1.15 per hour. Demand among the inmates for a IJNTCOR work assignment is high. LJNJCOR contributes significantly to the safety and security of federal correctional institution by keeping inmates constructively occupied. In addition to the job skills, inmates who participate in work programs and vocational training are less likely to engage in institutional misconduct, thereby enhancing the safety of staff and other inmates,.. Education programs play an important role in providing inmates with opportunities to gain skills, needed for successful reentry to the community, within a secure environment. Each iij

7 federal institution maintains an Education epartrnent responsible for providing inmates with literacy classes and other related educational programs. Every institution provides both leisure and law Nbrarysrvides. The Bureau how utilizes an Electronic Law Libriy (ELL) all of at the instiiutiotis edahiingidmates more timely access to legal research materials. With regard to access to legal materials, most Bureau pre-tril facilities provide innats some form of access to electronic discovery materials. By statute, 18 U,S,C.: 3624(f); each federal institution is required to have an education program for those federal prioners who are not functionally literate. Non-English speaking inmates are required to participate in an English as a Second Language program until able to function in the English language at the eighth grade level. With few exceptions, inmates lacking either a high school diploma, or a General Educational Development credential (GED), are required to enroll in an adult literacy program for a minimum of 240 hours and make "satisfactory progress" to earn full good conduct time credits (18 U.S.C. 3624(b),. A variety of programs for self-improvement, including nutritional education, physical fitness, weight control, stress reduction, angel management, parenting skills, and interpersonal skills development are offered. College and vocational training courses are available at many institutions. Most institutions offer vocational training in a variety of fields, such as culinary arts, building trades, dental assistant, and dog training. Recreation programs encourage inmates to make cons&uctive use of leisurd time and offer group and individual activities. Physical fitness and wellness programs are provided to pronrote positive lifestyle changes. Robbycraft prdgrams vary from institution to- institution, including activities such as painting, Ieathercrafts, artwork, and ceramics.. Completed projects are mailed home, as inmates are not permitted to retain completed projects in their possession,.. I The Bureau has committed considerable resources and staff to the treatment of inmates with substance abuse problems,. including abuse of drugs and alcohol. The Bureau has over 600 treatment positions, including each institution being staffed with one or more Psychologists, a Drug Abuse Program Coordinator, and a minimum of one Drug Abuse Treatment Specialist, to provide non-residential drug abuse - treatment and drug abuse education to its inmates. Upon admission to a BOP. facility,- a staff psychologist reviews the inmate s case foi any history of drug use. Drug education and non-residential drug abuse programs are available to all inmates, and a variety of programming is available. The most intensive drug abuse program offered is the Residential Drug Abuse Treatment Program (RDAP). Inmates who successfully complete the RDAP program may be granted an early release-of up to 12 months. Eligibility decisions for programming are done. at the institution, eligibilitydecisions for the possible time off are done at the DSCC and the amount of possible reduction is dependent on the length of sentence. For an inmate to be eligible for placement in the RDAP, psychology staff must find evidence the inmate had a substance abuse problem in the last 12 months prior to arrest,. -

8 RDA.P is offered at about 63 federal institutions, including a United States Pnitentiary. Inmates are admitted into RDAP based on proximity to their release date, to ensure that every inmate who volunteers and is eligible for RDAP receives the. course. full of treatment prior to community release. - thmates in the residential program are housed together, create a treatment community: Treatment is provided for ath-inirnutti of 500 hours, over a 9 to12 month period. Required RDAP components also include -atrnsitional : drug program,* when the inmate is returned to general population, and routinely six tuonths participation in community-based drug treatment, when the inmate is released to a Residential Reentry Center (halfway house). An inmate must have at least 24 months remaining to be served on the sentence in order to complete all aspects of the RDAP which suggests the inmate cannot be serving a sentence of less than 28 months in order to accomplish all components, In Tapia V. United States, 131 S. Ct, 2382 (20 1.1), the Supreme Court held the sentencing court cannot increase a sentence to have the inmate be eligible for the RDAP (or other rehabilitative prograins). When the Court recommends drug treatment, the drug education program is mandatory and the inmate cannot refuse to attend. RDAP and the non-residential drug abuse programs are voluntary programs which the inmate can refuse, regardless of the Court s recommendation. JflIiR.LI The Bureau.maintains two types of programs addressing the treatment and the management ofinmates with a history of sex offenses; The focus of the Sex Offender Treatment Program (SOTP) is treatment; the focus of the Sex Offender ManagernentProgram (SOMP) is correctional management..... The SOTP is a voluntary program for inmates within 12 to 24 months of release. Inmates, meeting certain criteria, are referred to the SOTP where they will be provided with the tools ;needed to gain, control of their sexual deviancy and develop methods which wiliheip prevent relapse. The SOW is a mandatory program assignment for inmates who have been asseined a Public Safety Factor of sex offender, and who require additional correctional supervisioll. SOMP is comprised of four essential components: assessment, management, ifeatment and-release planning. Based on individual evaluation, a Correctional Management Plan (CMP) is developed for each inmate. Inmates are held accountable for adherence to the CMIP. Community release planning is a major part of the program. Prior to release from either the SOTP or the SOMP, staff prepare a comprehensive discharge packet for the United States Probation Officer; with specific recommendations regarding expected intensity of community supervision and monitoring. The Adam Walsh Act, enacted On July27, 2006, has a number of important provisions, two of which directly effect the Bureau of Prisons: (1) expansion of the two types of sex offender programs and (2) certification procedure to request the court to consider certain sex offenders for possible civil commitment.. The Act added 18 U.S.C. 3621(f) which requires the Bureau of Prisons to establish, in each of its six regions, a Sex Offendet Management Program (SOMP) and a Sex Offender Treatment Program (SOTP). The Bureau presently has 5 PB

9 four SON/Ts and One SOTP operational and is in the process of establishing additional SOTP and SOMIPs. The Act also crated 18 U.S.C. 4248, which authorizes the Bureau to certify to federal district courts that certain inmates aie "sexually dangeious persons" for whom civil commitment is roquhed. Certification stays the teleasd of. the inmate aid initiates district court proceedings pursuant to 18 US C. 4248(b),(c), and (d).. The Mt amended 18 U.S.C to define "sexually, dangerous person" a as peroo who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangeroi.is to others" Certifications are presented to the district court where the offender is incarcerated. When filed, the court will conduct a civil commitment hearing. In United States v. Comstock, 130 S. Ct (2010), the Supreme Court decided the narrow issue that the statute did not exceed Congress authority, the other constitutional issues remain unresolved. The Bureau houses any individual committed at the FMC Butner, NC, INMATE FINANCIAL RESPONSIBILITY PROGRAIVI :rthe Bureau of Prisons developed the Inmate Financial Responsibility Program (FRP) to foster in :inmates the concept of being responsible for financial obligations. The regulations implementing the program are found at 28 C.F.R and Court ordered obligations are required to be paid in the following priority: (1) special asesments,.(2) restitution, (3) fines and costs The FRP is voluntary: the inmate must agree to have money sent to the court from his or her trust fund account. Bureau, staff assess outside assets and commisarybalances (from whatever source) is assessing appropriate suggested- payments. Inmates are expected to participate in the FRP. The. failure to show financial responsibility is considered by. the Bureau in assessing classification to work assignments and housing assignments. Ari.inmate with a court-ordered financial obligation is given :preference for assignment to UNICOR, and such an assignment requires 50% that of the inmate s earningr are applied to payment of that obligation.... Some Courts of Appeals have held the Sentencing Judge cannot delegate the court s authority to set a payment schedule to the Bureau of Prisons. If the Sentencing Judge wants the defendant to partic.ipate.in the FRP, the Judge should order-the payment. of the fine and restitution due immediately. Conversely, if the Sentencing Judge wants the defendant not to participate in the FRP, the Judge should order payment of the fine and restitution due at a future time, i.e., time of commencement of supervised release; The Sentencing Court also could state in the order: "The defendant is encouraged (or recommended) to participate in the Bureau of Prisons Financial Responsibility Program to pay the financial obligations imposed in the judgment." Since the defendant is not ordered to-be subject to the Bureau of Prisons FRP, the encouragement or recornmendation.sho.uld not be an impermissible delegation. The position of the Bureau is, if the court obligations are due immediately, the Bureau-. independently can assess the indiate s abilityto pay under the FRP. P7

10 RRC and the SECOND. CHANCE.ACT The Bueau has changed the title for contract community corrections centers (CCC), In recognition of their primary role in assisting initiates to reintegrate into the, community, the centers are now called Residential Reentry Centers (RRC) The Second Chance Act of 2007 focuses on effective return of prisoners.to the community.. The Act revised, 18 U.S.C. 3624(c) to provide thd Bureau "shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term: (not to exceed 12 months) under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such condition may include a community correctional facility." The prior version of the statute had referenced "a reasonable part, not to exceed six months, of.the last 10 per centum of the term to be served..." The Second Chance Act retains the 10% or six months, whichever is shorter, limit to the authority of the Bureau to place,a prisoner in home detention. The most significant change in Bureau procedure is that inmates will be reviewed, to the extent possible, for community confinement when there are 17 to 19 months remaining to be served SPLIT SENTENCES UNDER IJ.S,S.G. 5C1.1 Proper wording for split sentences imposed under U.S.S.G. 5C1.1 is a recuiring problem. Community confinement, (RRC placement or home detention) maybe substituted for imprisonment but the community confinement portion must be ordered as condition a special of Supervised release or probation. The most common split sentence situation is in Zone C cases, Section 5 C 1,1 permits the sentencing court to substitute community confinement foi imprisonment of up to one half of the minimum term under the guidelines. The key is SC 1.1 inquires the community confinement segment (either RRC or home detention) to bo imposed as a special condition of supervised release ot.probation If there is no special condition. the Bureau will treat a reference to community confinement as a recommendation. Example: Defendant is facing a sentencing -guideline range of months and the court wishes to impose a 10 month sentence, b ut.also to substitute one half in community confinement under 5C1.1. The court can impose a sentence 5 months of imprisonment to the Federal Bureau of Prisons and a supervised release term of appropriate length. If the custodial part of the sentence is only 5 months, the court must order special a condition of supervised. release to require the defendant to spend 5 months of supervised release in community. confinement (either RRC, or home detention as selected by the court). Suggested wording on Judgement and Commitment order: "The defendant is hereby comm itted to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of five months. In addition, under 5C1.1, the defendant. is required, as a.dondi tion of supervised release, to spend the first five months in a Community Corrections Center [or home detention]." NOTE: There needs to be a corresponding.special condition of supervised release requiring community confinement -in the Conditions section of the Judgement and Commitrneht order,

11 Congress authorized intermittent or weekend confinement only as a condition of probation under 18 U.S.C. 3563(b)(10) or, under limited circumstances, as a condition of supervised release under 18 U.S.C. 3583(d). Besides limiting intermittent confinement to a condition of supervision, Congress imposed other limitations: e.g., it could be imposed only during the first year of supervision and its duration and suitability were tied to the offense and sentencing factors under 3553(a), Because Congress spelled out in explicit detail the limited circumstances when intermittent confinement could be imposed by a sentencing court, the Bureau s interpretation is any expansion of that authority is contrary to the statutes. The Sentencing Commission similarly limits intermittent or weekend confinement as a condition of supervision. U,S,S,G, 5B1.3(e)(6), 51)1.3(e)(1) The Bureau s authority, for imprisonment extends from 18 U.S.C When a court :lmposes a sentence of imprisonment, that sentence is governed by 18 U.S.C (a), which states that the person "shall be committed to the custody of the Bureau of Prisons, until the.:expiration of the term imposed." Reading this statute literally, intermittent confinement is inconsistent with the above-quoted language, as it requires that a person be committed, released, recommitted, etc. The Community Corrections Office for the Bureau works with the U.S. Probation Office to implement a special condition for intermittent confmement. The Bureau preference is to use, as the place for intermittent confinement, a halfway house, where the inmates typically leave during the day for work, looking forwork. There is a security concern with permitting an inmate to come and go regularly from a more secure institution. The Bureau encourages specific times to report and to leave as part of the special condition, e.g.., report at 5:00 pm on Friday and leave at 8:00 am on Monday. A condition merely ordering weekend confinement can be construed in too many way. FEDERAL BUREAU OF PRISONS NORTHEAST REGIONAL OFFICE:.. Michael Tafeiski, Regional Counsel (felski(bop,gov) Joyce Horikawa, Deputy Regional Counsel Jean Wright, Regional Correctional Programs Administrator 'lilt 61 Send correspondence on designations. to:. Designation and Sentence Computation Center U.S. Armed Forces Reserve Complex, 346 Marine Forces Drive Grand Prairie, TX DSCC GRA-DSC/PolicvCorresoo -ndejace&admiriireme:dies 2~ boe.gov General DSCC-telephonenumber: (972) P9

12 Bureau of Prisons Issues Presentation at the Federal Sentencing Guidelines Seminar FREQUENTLY ASKED QUESTIONS DISCLAIMER: The subject matter areas of Sentence Computation, Primary Jurisdiction, Designations, and Early Release Eligibility based on successful completion of the Residential Drug Abuse Treatment Program (RDAP) are complex and fraught with exceptions to the general concepts outlined below. Accordingly, the following is only intended as a general guide and starting point. In all cases, Bureau of Prisons (BOP) policy, federal regulations, federal statutes and relevant case law control the decision making process on particular fact situations and must be consulted. Relevant BOP Program Statements include, but are not limited to, PS 5880,28, Sentence Computation Manual (COCA of 1984), PS , Sentence Computation Manual (Old Law/Pre-CCCA of 1984), PS , Designation of State Institution for Service of Federal Sentence, PS , Good Conduct Time under the Prison Litigation Reform Act, PS , Inmate. Security Designation and Custody Classification, PS , Early Release Procedures under 18 U.S.C. 3621(e), PS , Psychology Treatment Programs, and PS 5162.D5, Categorization of Offenses. Another useful tool is. the legal article of "Interaction of Federal and State Sentences" found under the Publications section. SENTENCE COMPUTATION AND PRIMARY JURISDICTION FAQ S Question: When will the BOP calculate my client s federal sentence? Answer: Ordinarily, the POP s Designation and Sentence Computation Center (DSCC) will calculate a federal sentence within 60 days after the date of designation. Your client s Unit Team will notify him of the projected release date shortly after he arrives at his designated institution. Page 1 of 7 am

13 Question: How will my client s release date be calculated? Answer: FOP staff will determine when your client s federal sentence began and how many days of prior custody credit ("jail credit") should be awarded to the federal sentence. They will also subtract the number of good conduct time days your client is projected to earn, which depends on the sentencing scheme under which your client was sentenced. Question: When will my client's federal sentence begin? Answer: Federal statute provides that your client s federal sentence will begin when she is received in custody awaiting transportation to, or voluntarily surrenders to, the official detention facility at which her sentence is to be served. 18 U.S.C. 3585(a). See Question: What is the earliest date my client's federal sentence will begin? Answer: The earliest date a federal sentence will begin is the date it was imposed. Question: If my client's federal sentence was ordered to run concurrently to:a previously imposed state sentence, when will it begin to run? Answer: Your client s federal sentence will run from the date it was imposed. This will 138 after your client s state sentence was imposed. Your client s federal sentence will not run from the date the state sentence was imposed, Question: My client was in state custody serving a state sentence, and he appeared before a federal judge pursuant to a writ. The federal sentence was imposed to run consecutively to the state sentence. When will my client's federal sentence begin? Answer: Your client s federal sentence will begin when he completes or paroles from his state sentence. Question: If my client appeared before a federal judge and was odared to voluntarily surrender at a later date, when will her federal sentence begin? Page 2 of 7 at

14 Arswe'r: If your client is released following sentencing and ordered to voluntarily surrender r, her federal sentence begins on the date she voluntarily surrenders into federal custody. Question: Hy client has received both a state arid a federal sentence. What determines the order in which he will serve these sentences? Answer: Primary jurisdiction generally determines the order in which the sentences are served. If your client is determined to be in primary state custody, he will ordinarily serve his state sentence first in a state facility, even if the state sentence was imposed after the federal sentence. Question: What is primary jurisdiction? Answer: Primary jurisdiction is a legal concept which determines the order in which sentences are served, based on which sovereign has, primary jurisdiction. Question: How is primary jurisdiction decided? Answer: The sovereign which first arrested your"client' hasprimary jurisdiction over her'. This so 'Vereign"has the authority to dispose of all proceedings against her first, e.g., by determining whether her charges'. will be dismissed, or whether she will be convicted and be sentenced.to serve a term of imprisonment, etc. Question: How can primary jurisdiction be transferred? Answer Primary jurisdiction can be transferred by bail release, dismissal of the state charges; parole release, expiration of state sentence, or an agreement between the sovereign authorities. Question: Does a writ transfer primary jurisdiction? Answer: A Writ does.not'ordinarily- transfer primary jurisdiction; Question: My client' is in state custody serving a state sentence. My client has also received a federal sentence-which she has not yet.begun serving. How.can'I request my client's federal sentence begin? Page 3 of 7 NN

15 Answer: You can write the Designatioi and Sentence Computation Center (DSCC) at 346 Marine Forces Drive, Grand Prairie, TX You should enclose a copy of your client s federal sentence and request that i begin. You should also enclose an original executed copy of a DOJ Form 361 Certificate of Identity. This forra is located at wwwbop.qov under Inmate Matters,, Sentence Computations, and then the hyperlink to the aubhorizdtion form. Alternativelyi your client can write the DSCC directly at the address above and enclose a copy of his federal judgment. In either case, the DSCC will conduct a review and reply to the sender with a written decision of its determination, s/question: My client was originally arrested by state authorities. She was writted into USMS custody to face federal charges. She received a federal sentence. Will she receive prior custody 'credit on her federal sentence for time she spent in USMS custody? Answer: Pursuant to federal statute, she will only receive credit for time,spent on, federal writ, if the state did not credit that time to her state.sentence. If the state.ntver imposed a sentence, the Bureau will credit all time spent in custody on the federal writ as long as it-was after the date she cornmitted,her federal offense. See 18 US..C. 3585(b). Question: Will the Bureau awardmy client prior custody credit on his current' federal sentence for time that was credited to a state sentence? Anset : No. Pursuant to federal statute, your client will only receive credit towards his federal sentence if that time credited towards another sentente, and other statutory requirements are met. See 18 U.S.C. 3585(b). was not Qustion: How much Good Conduct Time (GCT) 'willmy client earn? Anwer: This answer depends on the sentencing scheme under which your client was sentenced. If she committed her federal offense on or after November 1, 1987, she will earn 54 days of GCT for each year she serves on her term of imprisonment. If;she does not have a high school diploma or general equivalency diploma (GED) and is not successfully working towards a.ged, she will earn 42 days of GCT per.each year served..shewill not earn GCT Page 4 of 7

16 on sentences of 12 months or ldss. See 18 U.S (b) DESIGNATION FAQS - Question How soon after sentencing will my client know where he is designated? Answer- When the..bop receives the request for designation from th U.S. Marshals Service (USMS),, it w i11 take approximately seven days to process the request and notify the USMS. The USMS will then notify your client of his designated facility. If extenuating circumstances exist, such as. serious medical issues or incomplete documentation, the designation process may take longer. Question: The court ordered my client to be designated to a certain facility. Why was she not, designated there? Answer: Under 18 U.S.C. 3621(b), the POP is the final designating authority. The HOP is required to consider the following when designating offenders to facilities: the resources of the facility contemplated, the nature. and circumstances of the offense, the offender s history and characteristics, any statement by the court thit -imposed the sentence recommending a type of facility as appropriate, and any pertinent policy statement issued by the Sentencing Commission, The BOP rtakes every attempt to designate an offender to the facility recommended by the sentencing court. However, if the court recommends, a facility which does not meet your client s security level, medical or programming needs, or the POP s need to manage its population,the POP will designate your clientto an appropriate institution which meets these needs. Question: When will my client be considered for a transfer closer to home? Answer: Considertioo will be given for a nearerelese transfer after an inmate has maintained clear conduct for eighteen months at his designated institutiod. EARLY RELEASE ELIGIBILITY EAQ5 QuestionL What drug abuse-treatment programs does the BOP : offer? - Page 5 of 7 ME

17 Answer: The POP offers several drug abuse treatment programs, including the Non-Residential Drug Abuse Treatment Program, the Residential Drug Abuse Treatment Program (RDAP), and the Community Transition Drug Abuse Treatment Program. The BOP also offers a Drug Abuse Education course at every facility. Question: Do any of these programs offer inmates the incentive of early release? Answer: Yes. RDAP offers an early release incentive. If an inmate successfully completes all 3 phases of RDAP, he or she may be released up to one year early from the term the inmate must otherwise serve, See 18 U.S.C. 3621(e) (2) (B). :Question: How does my client participate in RDAP? Answer: If she wants to participate in RDAP, she should submit written request to her institution Drug Abuse Program Coordinator (DAPC). The DAPC will interview her to determine if she has a documented substance abuse disorder, and is otherwise qualified to participate in RDAP. Question: If the DAPCfinds.my client is qualified to participate in RDAP, how does he find out if he is eligible for early release? Answer: The. DAPC will submit a BP-942 Form, Request for Offense Review, to the Designation and Sentence Computation Center (DSCC) Legal Department. Question: What is the scope of the DSCC Legal Department's Review? Adswer: The DSCC Legal Departmeht only riews your client s current and prior convictions to determine if they preclude him from early release. Please note that even if the DSCC Legal Department concludes that these convictions do not preclude him from early. release, he still may not be eligible for early release based on other reasons outlined in PS , Early Release Procedures Under 18 U,S (e), such as the*. placement of a detainer, subsequent disciplinary infractions, etc. Question: What does thedscc Legal Department use'-to-review my client's current conviction and offense conduct?. Page 6 of.7.

18 knscer; The DSCC Legal Department refers to PS , Categorization of Offenses, :and the regulations contained in PS , Early Release PrOcedures Under18 U.S (e) to review your client s current. conviction, and offense conduct. Question; What does the DSCC Legal Department use to review my client s prior-convictions? AdOwer: Thd 03CC Legal Department refers to the regulations contained in PS , Early Release Procedures Under 18 U.S.C. 31e to review your client s prior conviction and offense conduct. Question: How does my client learn the DSCC Legal Department s determination? Answer: The DSCC Legal Department will return a completed review 1 form to your client s DAPC. Institution staff will then meet 1:. with your client to discuss the determination made by the DSCC Legal Department. CONTACT INFORMATION Sonya Cole Assistant General Counsel DSCC - (972) Jennifer Dannels Assistant General Counsel DSCC (972) , Tiffany Phillips. Assistant General Counsel (972) Alicia,Vasquez Assistant General Counsel (972) Page 7 of 7

19 INTERACTION OF FEDERAL AND STATE SENTENCES WHEN THE FEDERAL DEFENDANT IS UNDER STATE PRIMARY JURISDICTION Henry J. Sadowski, Regional Counsel Northeast Region, Federal Bureau of Prisons This memorandum details how the Federal Bureau of Prisons computes federal sentences imposed when the defendant is under the primary custodial jurisdiction of state authorities. This is probably the single most confusing and least understood federal sentencing issue. To place this discussion into context, basic sentencing principles will be discussed and then applied to state and federal sentencing interaction, The policy of the Bureau of Prisons concerning where the federal sentence is served will also be addressed, In any computation of a federal sentence, two separate decisions must be made: when the federal sentence commences and to what extent the defendant can receive credit for time spent in custody prior to commencement of sentence. For offenses committed prior to November 1, 1987, each of these decisions is governed by repealed 18 U.S.C Section 3568 specifies that the Attorney General is responsible for sentence computation decisions. For offenses committed on or after November commencement of federal sentence is governed by 18 U.S.C. 3585(a), and prior custody credit is governed by 18 U.S.C. 3585(b). The provisions of 3585 were designed to maintain the same basic authority for sentence computation in the Attorney General as under its predecessor. United States v. Wilson, 503 U.S. 329, 112 S.Ct (1992). Wilson held that, although news 3585 omits the language of old 3568 specifying that the Attorney General is responsible for sentence computation, Congress did not intend to change this well settled authority, j.. The authority of the Attorney General to compute sentences has been delegated to the Federal Bureau of Prisons by 28 C.F.R (20 10)., 2 The underlying principle of both repealed 3568 and present 3585(a) is that a federal sentence commences when the defendant is received by the Attorney General of the United States for service of his federal sentence. When a federal sentence is Chambers v. Holland, 920 F.Supp, 618, 621 (M.D,Pa),, aff 100 d F.3d 946 (3d Cir, 1996); United States N1. Smith, 812 F.Supp. 368, 370 (E.D.NY. 1993). 2 United States v. Pineyro, 112 F.3d43 (2d Cir. 1997). Pinaud v. James 851 F.2d 27 (2d Cir, 1988);Salley v. United States. 786 F.Zd 546 (2d Cir, 1986); Chambersv, Holland, 920 F.Supp at 621,

20 imposed on a defendant in state custody, the federal sentence may commence when the Attorney General agrees to designate the state facility for service of the federal sentence, The designation authority of the Attorney General under repealed 18 U.S.C had been delegated to the Federal Bureau of Prisons. 28 C.F.R. 0.96(c). Present 18 U.S.C explicitly vests the designation authority in the Bureau of Prisons. The earliest date a federal sentence can commence is the date it is imposed. Thus, a concurrent sentence commences on the date of its imposition; not on 5 the date of commencement of prior sentence, or some earlier date. A sentence cannot be ordered to commence at a date prior to its imposition. 6 A federal -sentence does not begin to run when a federal defendant is produced for prosecution by a federal writ of habeas corpus ad prosequendum from state Custody. 7 The state authorities retain primary jurisdiction over the prisoner; federal custody does not commence until state authorities relinquish the prisoner on satisfaction of the state obligation.8 The sovereign which first arrested the offender has primary jurisdiction over the offender, unless that sovereign relinquishes it to another sovereign by, for example, bail release, dismissal of the state charges parole release, or expiration of state sentence. 9 When a prisoner is borrowed from the primary custodian via a writ of habeas corpus ad prosequendum, principles of comity require the return of the prisoner to the primary custodian when the prosecution has been ;compieted. 10 This concept of primary jurisdiction controls many of the decisions in this Taylor v. Sawyer, 284 F3d 1143 (9th Cii. 2001), cert. denied s 123 S.Ct. 889 (2003): Romandine v. United States, 206 F.3d 731 (7th Cir, 2000); Roigers v. United States, 180 F.3d 349 (1st 1999), cert. denied, 528 U.S (2000); McCarthy v, Doe, 146 F.3d 118 (2d Cit. 1998); Barden v. Keohane 921 F.2d 476 (3d dr. 1990); United States v. Pungg,910F.2d 1084, (3d Cir. 1990), cert. did, 111 S.Ct, (1991). Coloma v, Bolder, 445 F.3d 1282 (11th Ch, 2006); Shelvy v, Whitfield, 718 F,2d 441, 444 (D.C.Cir. 1983); United States v, Flores, 616 F.2d 840, 841 (5th Cir, 1980). 6 United States v. Gonzalez. 192 F.3d 350 (2d Cir 1999); United States v. Labeille-Soto, 163 F. 3d 93 (2d Cii, 1998), But see United States ax rel. Del Genjo v, United States Bureau of Prisons, 644 F.2d 585, 589 (7th Cii. 1980), cert. denied, 449 U.S. 1084(1981 ) (implyingin dicta sentencing judge could order prior commencement). United States v, Cole, 416 F,3d 894 (8th Cir. 2005); United States Y. Evans, 159 F.3d 908 (4th Cii, 1998); Thomas Y. Whalen, 962 F.2d 358 (4th dir. 1992); Thomas ewer v, Br 923 F.2d 1361 (9th Cir. 1991); Barden yjeohane, 921 F,2d 476 (3d Cii, 1990); Salley v. United es, Stat supra; Hernandez v. United States Attorney General, 689 F.2d 915 (10th Cir. 1982); Roche N1, Sizer, 675 F.2d 507.(2d Cii, 1982); Chambers Y. Holland, 920 FSupp. at PJOS v. Wiley, 201 F.3d 257,274 (3d Cir. 2000); Jake v. Herschberger,.173 F.3d1059 (7th dir, 1999); Del Guzzi v, United States, 980 F,2d 1269 (9th Cir, 1992); Thomas v. Whalen, 962 F.2d 358(4th Cii, 1992); Hernandez v, United States Attorney General, supra; Roche v, Sizer, supra; Crawford v. Jackson F.2d (DSC.Cir. 1978), cert, deni ed 441 U.S. 934 (1979); Cobbv, United States, 583,F.2d 695 (4th dir. 1978); Chambers v. Holland, supra; Shumate v. United States, 893 F.Supp. 137 (N.D.NY. 1995); V. Miller United States, 826 F.upp. 636 (N.D.N.Y. 1993). See also Bowman v. United States, 672 F.2d 1145, (3d Cir, 1982). United States v. Cole, 416 F.3d 894 (8th Cm 2005); Rios v. Wiley. 201 F.3d at 274; Taylor v, Reno, 164 F3d 440 (9th Cir, 1998); United States v. Warren, 610 F.2d 680 (9th Cir:1980); Chaibers v Hoj1an,. 920 F.Supp. at 622; United States v, Smith, 812 F.Supp. 368 (E.D.N.Y. 1993). Delima v, United States,41 F.Supp. 2d 359 (E.D.N.Y. 1999),, 213 F.3d 625 (2d Cir. 2000).

21 area. Under the old 3568, a federal prisoner was not entitled to prior custody time credit towards a federal sentence for the period spent in state custody especially when the state provided credit for the same period towards a state sentence 11 Time in custody of the United States Marshal pursuanttoa federal writ of habeas corpus ad prosequendum from state custody is not federal custody in connection with the federal offense. 12 For new law cases, the Supreme Court noted that under new 3585(b), Congress made clear that a defendant could notreceive.double credit forhis detention time, United States v. Wilson, 112 S.Ct. at Under 3585(b), prior custody credit cannot be granted if the prisoner has received credit towards another sentence, 13 There are some limited exceptions, 14 but the general rule is no credit is afforded towards a federal sentence if credit has been given for the same period of custody towards a state sentence. CONCURRENT VERSUS CONSECUTIVE SERVICE OF FEDERAL SENTENCE WITH STATE SENTENCE As in the commencement decision, the order in which sentences are served is governed by the concept of primary jurisdiction. If state and federal sentences are imposed onan offender, the general rule is that the sentence imposed by the sovereign with primary jurisdiction is served first. Generally, decisions concerning concurrent or consecutive service of a federal sentence with a state sentence are not dependent on the orderof sentence imposition. If the federal judgment and commitment order is silent and if the state authorities have primary jurisdiction over the defendant, the default by the Bureau of Prisons is to compute the federal sentence as consecutive to the state sentence regardless of which sentence was imposed fist. Under 18 U.S.C. 3584, the federal sentencing judge may specifically order the federal sentence to run Del Guzzi v. United States, 980 F.2d 1269 (9th Cii. 1992); United States v, Blahkenship, 733 F.2d 433 (6th Cir. 1984); United States v. Grimes, 641 F2d 96 (3d Cir; 1981); Siegal v, United States, 436 F.2d 92, 95 (2d Cir, 1970). United States v. Milis,501F.3d9(lst Cu. 2007); Rios V. Wiley, 201F.3d at ; Thomas v, Whalen, supra; Chamber s v. Holland, 920 F.Supp at 622; Miller v. United States, suprh; United V. Smith, States 812 F.Supp. 368 (E.D.N.Y. 1993). But see Brown v. Perrili, 28 F3d 1073 (lothcir. 1994). Rios v. Wiley, 201 F,3d at 272; Tisdale v. Menifee. 166 F.Supp 2d 789 (S.D.N.Y.2001). See Kayfez v;gasele, 993 F.2d 1288 (7th Cii. 1993), IS This rebuttable default is drawn from 18 U.S.C. 3584(a) which generally requires consecutive service of sentence imposed at different times unless the cour( specifies concurrent service.

22 consecutively, with a state sentence. 16 The Bureau of Prisons interprets 3584 to also 17 permit the federal judge to order concurrent service with an existing state sentence. There is a split in the circuits on whether the federal judge can order concurrent or consecutive service with a state sentence yet. to be imposed. 18. This Issue may be resolved soon: certiorari has been granted in Setserv, United States, 607 F.3d 128 (5th Cir. 2010), cert. granted (June 13, 2011.) (No.:1D-7387), The position of the United States is that 3584 does not authorize a federal sentencing court to order concurrent orconsecutive service With a sentence yet to be imposed. The sentencing court could recommend concurrent or cbnsecutive seiice with a yet to be imposed state sentence. The Bureau would consider strongly any such recommendation from the federal sentencing court, 19 To allow the federal sentence to commence, the Bureau of Prisons designates the state correctional institution (the primary custodian) for service of the federal sentence. Since the earliest date, a federal sentence can commence is the date it is imposed, this designation may be made nunc pro tunc no earlier than the date of federal sentencing. A sentence may not be ordered to run concurrently with a sentence which has been served.20 Under old law, 18 U.S.C. 3568, when the state had primary jurisdiction, an order by the federal sentencing judge to run the federal sentence concurrently with a ;state sentence (even one yet to be imposed) was treated by the Bureau of Prisons as a recommendation since the federal sentencing court had no power to order a federal 21 sentence to run concurrently with a state sentence. Since the Bureau usually follows a concurrent recommendation from the sentencing judge, the issue of the authority of a federal judge to order concurrent service has,been rarely tested, To give, effect to the federal sentencing courts recommendation and allow the federal sentence to commence, the Bureau designates the state facility for service of the federal, United States v. Williams, 46 F.3d 57 (10th Cir.), cert. denied, 116 S.Ct, (1995); 92 United States v. Ballard, 6 F.3d 1502 (11th Cir. 1993); United States v, Hth desty, 958 F.2d 910 (9th Cir. 1992); Pinaud v, James, 851 F.2d 27 (2d CiT. 1988); Salley Y. United Status 786 F,2d 546 (2d Cir, 1986). United States V. Fentes, 107 F.3d 1515, 1519 n.6 (llth Cir. 1997). Contrast United States-v. Andrews, 30 F.3d 1305 (11th Cir. 2003); United V. States Mayotte, 249 F.3d 797 (8th Cir. 2001) United States v. Williams supra; United States v. Ballard, supra;, Salley v. United States,. supra; with Abdul-Malik v, Hawk-Sawyer, 403 F.3d 72 (2d Cir,.2005); Romandin v. United States, 206 F.3d 731 (7th Cir, 2000); United States v. Quintero, 157 F.3d 1038 (6th Cir. 1998); McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998); United States v Clayton, 927 F.2d 491 (9th Cir. 1991). See also United States v. Smith, 472 F.3d 222 (4th Cir. 2006) (federal sentence cannot be ordered to run consecutive with future federal sentence). Federal. sentencing orders have a section for rcominendations to the Bureau of Prisons. A judicial recommendation contemporaneous with the date of sentencing would obviate the need to return to the sentencing judge perhaps years later, to ascertain the intent of the judge, 20 United states. Labeille-Soto, supra, Barden v, Keohane -,921 F.2d 476 (3d Cir. 1990); United States v, Campisi, 622 F,2d 697 (3d Cir, 1980); Gomori v. Arnold, 533 F.2d 871 (3d Cir.), cert, denied, 429 U.S. 851 (1976); United Y, States Huss, 520 F,2d 598 (2d Cii. 1975).