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JUDGE CANNOT JAIL BOP EMPLOYEES FOR FOLLOWING THE LAW

Lawsuits by inmates asking federal courts to order the Bureau of Prisons to follow the law are too numerous to mention, and amount to little more that what journalists call “dog-bites-man” stories.

This report, however, is completely inverted, a “man-bites-dog” account in which a federal judge wanted to jail BOP employees for ignoring her demands that they substitute her diktats for the law.

Under 18 USC § 3585, only the BOP is authorized to calculate jail time, credit for the time an inmate spent in detention before sentencing. Ruben Hernandez on three years of supervised release (SR) when he was charged in state court for gun and drug offenses. He spent over a year in pretrial detention on the state charges before he beat them.

After he beat the state case, Ruben was grabbed by the feds on an SR violation. Judge Alia Moses in the Western District of Texas revoked Ruben’s SR, sentencing him to 10 months in prison. Ruben requested credit for time served in state custody, but Judge Moses refused, ordering in his judgment that he only get credit from the time the feds picked him up.

The BOP’s Grand Prairie Designation and Sentence Computation Center (DSCC) BOP determined that Ruben was really entitled to credit for all of the 543 days he spent in detention following his state arrest. That amounted to much more than 10 months, so Ruben was released right away.

Judge Moses learned what had happened, and demanded the name of someone at DSCC on whom to serve a contempt order. She got two BOP employees’ names (I will call them Smith and Jones), and hailed them into court. By then, the Judge had identified two other defendants she had sentenced who had gotten jail credit to which she did not think they were entitled.

Smith and Jones explained to the court that the BOP e required by statute to award credit for time served in official detention when that time has not been credited to another sentence. While a district court has the authority to order a consecutive sentence, the BOP cannot run the federal sentence consecutively if there is no other sentence in place. Ruben had no state sentence, and therefore, the statute required he get the full jail credit, no matter what the Judge wanted.

The Judge was unfazed. She ordered the BOP not to award credit under 18 USC § 3585(b)(2) for time served in state detention when she told it not to. The Court said the order would apply “in my cases only,” not nationwide, “and anybody that violates that injunction will then be facing a personal, individual contempt situation.” In other words, the Judge told Smith and Jones that if it happened again, she would lock them up.

Last week, the 5th Circuit overturned the contempt proceeding. In what amounted to a rebuke of the District Court, the 5th ruled that the district court lacked the authority to award or deny jail credit, and that the BOP is not bound by a district court attempt to do otherwise. If the court determines that the BOP will not credit a defendant’s prior time served, the court can reduce the defendant’s sentence under the Guidelines to account for it. But the district court cannot simply order the BOP to award credit, and it cannot order the BOP to deny credit where the law orders otherwise.

“Given the district court’s lack of authority over credit awards,” the Circuit said, “it was improper to order the BOP to deny custody credits required by statute. The district court’s error was compounded by its threat to hold BOP officials in individual contempt for fulfilling their statutory duties.”

Meanwhile, in the 7th Circuit, Maurice Walker was charged with a felon-in-possession count. While locked up awaiting trial, he tried to intimidate some witnesses into not testifying. When his indictment was superseded to charge him with that, too, he folded and entered a guilty plea.

At sentencing, the district court, angry about the witness tampering, ordered that Maurice not get any jail credit for the time he spent prior to entering his guilty plea. On appeal, Maurice argued that the judgment was wrong, because he was entitled to the full jail credit time under 18 USC § 3585(b).

The 7th Circuit rejected Maurice’s argument. It held that Congress has committed the responsibility for figuring credit for pretrial confinement to the BOP. “The district court therefore lacked the authority to make such a determination,” the Court said, but that did not mean the court could not “make a recommendation to the BOP as to whether pretrial credit is appropriate. The district court therefore acted well within its discretion when it made such a recommendation.”

In re United States Bureau of Prisons, 2019 U.S. App. LEXIS 7560 (5th Cir. Mar. 14, 2019)

United States v. Walker, 2019 U.S. App. LEXIS 7060 (7th Cir. Mar. 11, 2019)

– Thomas L. Root