Eighth Circuit: Federal Sentence Consecutive to Later-Imposed State Sentence
On June 6, 2013, the Eighth Circuit Court of Appeals held that a prisoner was not entitled to credit toward his federal sentence for time already served on state charges.
In March 2007, Charles Lee Elwell was arrested in Iowa. A federal indictment was issued against him several days later; Elwell was transferred to federal custody and the state court stayed its prosecution until the federal charges were resolved.
Elwell pleaded guilty to the federal charges and was sentenced to 66 months in prison in November 2007. The district court did not address whether the federal sentence would run concurrent or consecutive to any yet-to-be-imposed state sentence, as permitted by Setser v. United States, 132 S.Ct. 1463 (2012). [See related article in this issue of PLN].
Elwell was then returned to Iowa’s custody and sentenced to two concurrent five-year prison terms. The state court expressed its intent to impose the state sentence concurrent with the already-imposed federal sentence.
Later discovering that Elwell’s state and federal sentences were not concurrent, however, the state court resentenced Elwell to time served on February 6, 2009. As a result, Elwell’s state sentence ended that day and he was transferred to the federal prison system.
The Bureau of Prisons (BOP) subsequently denied Elwell’s request for credit for time served toward his federal sentence and for a nunc pro tunc designation pursuant to 18 U.S.C. § 3621. Elwell then filed a habeas corpus petition, which was denied by the district court.
On appeal, the Eighth Circuit first applied the primary jurisdiction doctrine, finding that Iowa, not the federal government, had primary jurisdiction of Elwell from March 2007 to February 6, 2009. “Pursuant to the doctrine of primary jurisdiction, service of a federal sentence generally commences when the United States takes primary jurisdiction and a prisoner is presented to serve his federal sentence, not when the United States merely takes physical custody of a prisoner who is subject to another sovereign’s primary jurisdiction,” the Court of Appeals wrote.
Under 18 U.S.C. § 3584(a), “multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” As such, the appellate court found that “Elwell’s federal sentence must run consecutive to his state sentence.”
Given the express bar on double credit imposed by 18 U.S.C. § 3585(b), the Court of Appeals also rejected Elwell’s challenge to the BOP’s denial of federal credit for time served while he was in state custody between March 2007 and February 6, 2009.
Finally, the Eighth Circuit held the BOP did not abuse its discretion in denying Elwell’s request for a nunc pro tunc designation of the various facilities where he was incarcerated prior to February 6, 2009 as the locations for serving his federal sentence under 18 U.S.C. § 3621. See: Elwell v. Fisher, 716 F.3d 477 (8th Cir. 2013).