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Eighth Circuit Upholds BOP’s Denial of Nunc Pro Tunc Designation
The Eighth Circuit Court of Appeals upheld a Bureau of Prisons (BOP) refusal to grant a nunc pro tunc designation.
In 1991, Michael Fegans pled guilty to a federal bank robbery charge while unrelated charges were pending in Arkansas state courts. The federal court sentenced Fegans to 125 months in prison. He was then convicted of the state charges, sentenced to 18 years in prison, and began serving the state sentence.
While still in state custody, in 2000, Fegans requested that the BOP provide a nunc pro tunc designation of the state prison as the place to serve his federal sentence. Pursuant to 18 USC § 3621 (b), “when a federal defendant is already serving a state sentence, BOP has the practical power to ‘make the federal sentence run concurrently by designating the state prison as a place of federal confinement so that the clock would start to tick on the federal sentence.’ Romadine v. United States, 206 F.3d 731, 738 (7th Cir. 2000).”
The BOP denied Fegan’s request because “the agency found no evidence the federal court intended concurrent sentences and…concurrent sentences would not be ‘in the interest of the criminal justice system.’” Fegans filed a federal habeas corpus petition, seeking to overturn the BOP’s decision. The district court denied the petition and the Eighth Circuit Court of Appeals affirmed.
Federal courts are authorized by 18 U.S.C. § 3584(a) “did not expressly address whether federal courts may decide to order a federal sentence to be served concurrent to or consecutive with a state prison sentence that has not yet been imposed.” The circuits are split over whether § 3584(a) implicitly authorizes courts to do so. Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 74-75 (2d. Cir. 2005).
The Eighth Circuit joined the Second, Third, Seventh and Ninth Circuits in assuming “that the BOP has statutory authority to make nunc pro tunc designations that have the effect of making a federal sentence concurrent to a later-imposed state sentence.” See: Bardon v. Keohane, 921 F.2d 476, 483-84 (3d Cir. 1990); McCarthy v. Doe, 146 F.3d 118, 122 (2d Cir. 1998); Romadine, supra, 206 F.3d at 738; and Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002). The BOP exercises this authority, however, “only when it is consistent with the intent of the sentencing Federal court, or with the goals of the criminal justice system,” under BOP Program Statement 5160.05.
Fegans conceded that his “sentencing order was silent on the question of whether his federal bank robbery sentence should be concurrent with any sentence the state court might impose in the pending proceedings.” Moreover, “the BOP found no evidence that the federal sentencing judge intending the sentences to be concurrent.” The Eighth Circuit concluded that this BOP “finding is entitled to substantial deference” and “must be upheld.”
Citing Fegans’ “extensive and serious criminal history,” the BOP also concluded that “it was not in the interest of the criminal justice system to grant…a nunc pro tunc designation.” The Eighth Circuit upheld that decision, finding that the BOP did not abuse its discretion because it “carefully considered the relevant factors and acted in accordance with the Program Statement.” See: Fegans v. United States, 506 F.3d 1101 (8th Cir. 2007).
In 1991, Michael Fegans pled guilty to a federal bank robbery charge while unrelated charges were pending in Arkansas state courts. The federal court sentenced Fegans to 125 months in prison. He was then convicted of the state charges, sentenced to 18 years in prison, and began serving the state sentence.
While still in state custody, in 2000, Fegans requested that the BOP provide a nunc pro tunc designation of the state prison as the place to serve his federal sentence. Pursuant to 18 USC § 3621 (b), “when a federal defendant is already serving a state sentence, BOP has the practical power to ‘make the federal sentence run concurrently by designating the state prison as a place of federal confinement so that the clock would start to tick on the federal sentence.’ Romadine v. United States, 206 F.3d 731, 738 (7th Cir. 2000).”
The BOP denied Fegan’s request because “the agency found no evidence the federal court intended concurrent sentences and…concurrent sentences would not be ‘in the interest of the criminal justice system.’” Fegans filed a federal habeas corpus petition, seeking to overturn the BOP’s decision. The district court denied the petition and the Eighth Circuit Court of Appeals affirmed.
Federal courts are authorized by 18 U.S.C. § 3584(a) “did not expressly address whether federal courts may decide to order a federal sentence to be served concurrent to or consecutive with a state prison sentence that has not yet been imposed.” The circuits are split over whether § 3584(a) implicitly authorizes courts to do so. Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 74-75 (2d. Cir. 2005).
The Eighth Circuit joined the Second, Third, Seventh and Ninth Circuits in assuming “that the BOP has statutory authority to make nunc pro tunc designations that have the effect of making a federal sentence concurrent to a later-imposed state sentence.” See: Bardon v. Keohane, 921 F.2d 476, 483-84 (3d Cir. 1990); McCarthy v. Doe, 146 F.3d 118, 122 (2d Cir. 1998); Romadine, supra, 206 F.3d at 738; and Taylor v. Sawyer, 284 F.3d 1143, 1149 (9th Cir. 2002). The BOP exercises this authority, however, “only when it is consistent with the intent of the sentencing Federal court, or with the goals of the criminal justice system,” under BOP Program Statement 5160.05.
Fegans conceded that his “sentencing order was silent on the question of whether his federal bank robbery sentence should be concurrent with any sentence the state court might impose in the pending proceedings.” Moreover, “the BOP found no evidence that the federal sentencing judge intending the sentences to be concurrent.” The Eighth Circuit concluded that this BOP “finding is entitled to substantial deference” and “must be upheld.”
Citing Fegans’ “extensive and serious criminal history,” the BOP also concluded that “it was not in the interest of the criminal justice system to grant…a nunc pro tunc designation.” The Eighth Circuit upheld that decision, finding that the BOP did not abuse its discretion because it “carefully considered the relevant factors and acted in accordance with the Program Statement.” See: Fegans v. United States, 506 F.3d 1101 (8th Cir. 2007).
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Related legal case
Fegans v. United States
| Year | 2007 |
|---|---|
| Cite | 506 F.3d 1101 (8th Cir. 2007) |
| Level | Court of Appeals |
| Injunction Status | N/A |