United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
matter is before the Court on federal prisoner Robert
Kennard's pro se motion requesting time credit,
nunc pro tunc, for time served for a state sentence.
The government opposes defendant's motion and filed a
memorandum in response. For the following reasons,
defendant's motion for credit for time served is denied.
December 28, 2006, defendant Robert Kennard pleaded guilty in
this Court to wire fraud in violation of 18 U.S.C. §
1343. The criminal conduct that was the subject of the
violation took place between October through December 2005 in
the St. Louis area. At the time of sentencing in April 2007,
defendant was serving a ten-year sentence in Texas for state
charges of felony theft.The Court was informed at sentencing
that defendant was under investigation in Wisconsin for acts
similar in nature, but no charges had been
undersigned sentenced defendant to 46 months and ordered that
“[t]he term of imprisonment shall run consecutively to
the term of imprisonment defendant is currently serving in
the Texas Department of Corrections pursuant to the judgment
in Docket 0951388 from the District of Harris County,
Texas.” Doc. 37 at 2. The Court sentenced defendant to
a consecutive sentence because it did not believe a sentence
concurrent with the Texas sentence would be sufficient.
Defendant's criminal history was extensive; he was under
investigation for fraud and theft in a number of states; and
here in St. Louis, he had victimized a number of local
businesses defrauding them out of merchandise totaling more
than $100, 000.00.
sentencing in this Court, defendant was transferred back to
Texas state custody on May 1, 2007. In August 2008, over a
year after sentence was imposed in this Court, defendant was
sentenced in Wisconsin to 72 months in prison on state
charges of theft relating to criminal conduct occurring in
January 2006. Doc. 45, Ex. 3. The record is silent as to
whether the Wisconsin court ordered that the sentence should
run concurrently or consecutively to the Texas sentence
and/or the federal sentence.
April 14, 2010, defendant completed his Texas sentence, and
he was transferred to Wisconsin where he began his 72-month
sentence. On April 12, 2016, plaintiff completed his
Wisconsin sentence, and was released to the United States
Marshals Service to begin the 46-month sentence imposed by
Bureau of Prisons (“BOP”) computed that
defendant's federal sentence commenced on April 12, 2016.
Defendant now asks that the Court, pursuant to USSG §
5G1.3(b), grant him credit toward his federal sentence
nunc pro tunc for the 72 months he served in
did request that the BOP credit him for time served in
Wisconsin. The government attached to its memorandum in
response the declaration of James D. Cook, a supervisory
attorney at the United States Department of Justice, BOP.
According to Mr. Cook, the BOP sent defendant a letter
indicating his request for credit for time spent serving the
Wisconsin sentence was being reviewed as a request for a
nunc pro tunc or retroactive
designation. On January 25, 2017, defendant was
notified that his request had been denied. There is nothing
in the record to indicate whether defendant appealed the
denial or otherwise pursued his request for relief with the
outset, the Court notes that at the time of sentencing a
district court has “broad discretion” to
determine whether a sentence should be consecutive or
concurrent with a yet-to-be-imposed state sentence.
United States v. Mayotte, 249 F.3d 797, 799 (8th
Cir. 2001); see also United States v. Gurski, 317
Fed.Appx. 582, 583-84 (8th Cir. 2009). The district
court's authority to revise a sentence after it has been
imposed, however, is very limited. Fegans v. United
States, 506 F.3d 1101, 1104 (8th Cir. 2007). The BOP
“is responsible for computing the sentencing credit
after the defendant has begun serving his
sentence.'” United States v. Woods, 717
F.3d 654, 658 (8th Cir. 2013) (quoting United States v.
Tindall, 455 F.3d 885, 888 (8th Cir. 2006)); see
also United States v. Wilson, 503 U.S. 329, 35
(1992) (“[a]fter a district court sentences a federal
offender, the Attorney General, through BOP, has the
responsibility for administering the sentence”).
federal sentence “commences on the date the defendant
is received in custody [at] the official detention
facility” the BOP has designated. 18 U.S.C. §
3585(a). The BOP is authorized to designate “any
available penal or correctional facility that meets minimum
standards of health and habitability . . . whether maintained
by the Federal Government or otherwise.” 18 U.S.C.
§ 3621(b). The BOP has “broad discretion to choose
the location of an inmate's imprisonment, ” so long
as “the factors enumerated in the statute are
considered.” Fegans, 506 F.3d at 1104 (citing
Fults v. Sanders, 442 F.3d 1088, 1090-91 (8th Cir.
2006)). Therefore, “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.'” Fegans, 506 F.3d at
1104 (quoting Romandine v. United States, 206 F.3d
731, 738 (7th Cir. 2000)).
arise, however, when the federal offender has already served
out his state sentence. Fegans, 506 F.3d at 1104. It
was unclear from the statute whether the BOP had the
authority to made nunc pro tunc designations.
Id. The Third Circuit Court of Appeals held in
Barden v. Keohane, 921 F.2d 476, 483-84 (3d Cir.
1990), that the BOP did have the authority to act on a
prisoner's request for nunc pro tunc designation
of a state institution as the place to serve his federal
sentence, and a number of courts have followed this decision.
See, e.g., Fegans, 506 F.3d at
1104. In response to Barden, the BOP promulgated
procedures to address an inmate's request for nunc
pro tunc designation of a state institution as
the place to serve a federal sentence. See Federal
Bureau of Prisons, U.S. Dep't of Justice, Program
Statement No. 5160.05 (2003).
case, defendant had already served out his Wisconsin sentence
when he made his request for credit for time served. The BOP
reviewed defendant's request for credit for the time he
served in Wisconsin pursuant to Program Statement No.
5160.05, and the request was denied. There is nothing in