BOP Program Statement 5880.28 ch. 1 § 3

For an offense that occurred on or after November 1, 1987,

that resulted in a sentence not affected by a court decision, an

SRA sentence shall be implemented in accordance with the

instructions contained in this part.

An offense that began prior to, but not completed until on

or after November 1, 1987, is subject to the SRA. (See Statement

By President Ronald Reagan Upon Signing S. 1822 (Public Law 100-

182, 101 Stat. 2135-2136, dated December 14, 1987).) The BOP

treats a conspiracy offense in the same manner.

A sentence imposed for an offense that occurred prior to

November 1, 1987 ("old law" sentence) shall not be aggregated

with a sentence imposed for an offense that occurred on or after

November 1, 1987 (SRA or "new law" sentence).

If a multi-count indictment contains an offense(s) that was

completed before November 1, 1987, and an offense (s) that was

completed on or after November 1, 1987, then those pre- and post-

SRA counts shall be treated separately (not aggregated) and the

sentences shall be computed in accordance with the sentencing

laws in affect at the time of the completion of those offenses.

If one or more of the counts in the indictment is consecutive,

then the consecutive count

P.S. 5880.28

February 21, 1992

Page 1 - 6

shall be placed as a detainer until release from the preceding

sentence occurs.

There are several different documents that may be reviewed

to determine the date of the offense and they are the federal

judgment and commitment (J&C), the indictment and the Presentence

Investigation (PSI) report. If none of the documents contain the

date of the offense, or if there is a conflict among the

documents about the date of the offense, or if the inmate

challenges the date of offense (See U.S. v. Bloom, 945 F.2d 14

(2d Cir., 1991)) as determined by ISM staff, then, in accordance

with the procedures set forth in the Inmate Systems Management

Manual, the court shall be contacted to ascertain the correct

offense date. These procedures apply to any situation where it

is necessary to obtain a correct date of offense for sentence

monitoring purposes.

The Sentence Procedure Code (SPC) and narrative for a

sentence imposed under the SRA is:

SPC = 0080 3559 SRA Sentence

A number of sections are activated when a sentence under the

SRA is imposed and those sections are discussed in this manual.

P.S. 5880.28

February 21, 1992

Page 1 - 7

Any Judgment and Commitment or other court order that

requires a sentence to be computed in a manner not consistent

with the instructions contained in this manual shall be referred

to the appropriate Regional Inmate Systems Administrator.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 8

a. Classification of Offenders and Terms of

Imprisonment. The SRA contains two sections that pertain to the

classification of offenses and the terms of imprisonment that can

be imposed depending upon the offense classification. Those two

sections are 18 U.S.C. § 3559 and 18 U.S.C. § 3581 and they are

presently in conflict in a number of letter grade

classifications. While this conflict presents no special offense

classification or computation problem, the differences between

the two sections need to be pointed out.

* 18 U.S.C. § 3559 states,

(a) Classification.-- An offense that is

not specifically classified by a letter grade

in the section defining it, is classified if

the maximum term of imprisonment authorized

is--

(l) life imprisonment, or if the maximum

penalty is death, as a Class A felony;

(2) twenty-five years or more, as a

Class B felony;

(3) less than twenty-five years but ten

or more years, as a Class C felony;

(4) less than ten years but five or more

years, as a Class D felony;

(5) less than five years but more than

one year, as a Class E felony;

(6) one year or less but more than six

months, as a Class A misdemeanor;

(7) six months or less but more than

thirty days, as a Class B misdemeanor;

(8) thirty days or less but more than

five days, as a Class C misdemeanor; or

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 9

(9) five days or less, or if no

imprisonment is authorized, as an infraction.

18 U.S.C. § 3559(c)(1) states further,

(1) MANDATORY LIFE IMPRISONMENT.--

Notwithstanding any other provision of law, a

person who is convicted in a court of the

United States of a serious violent felony

shall be sentenced to life imprisonment if--

(A) the person has been

convicted (and those convictions

have become final) on separate

prior occasions in a court of the

United States or of a State of--

(i) 2 or more serious

violent felonies; or

(ii) one or more serious

violent felonies and one or more

serious drug offenses; and

(B) each serious violent

felony or serious drug offense used

as a basis for sentencing under

this subsection, other than the

first, was committed after the

defendant's conviction of the

preceding serious violent felony or

serious drug offense.

18 U.S.C. § 3581 establishes the classes of

offenses and the authorized terms of imprisonment for each.

Section 3581 states,

(a) In general.-- A defendant who has

been found guilty of an offense may be

sentenced to a term of imprisonment.

(b) Authorized terms.-- The authorized

terms of imprisonment are--

(l) for a class A felony, the

duration of the defendant's life or any

period of time;

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 9A

(2) for a Class B felony, not more

than twenty-five years;

(3) for a Class C felony, not more

than twelve years;

(4) for a Class D felony, not more

than six years;

(5) for a Class E felony, not more

than three years;

(6) for a Class A misdemeanor, not

more than one year;

(7) for a Class B misdemeanor, not

more than six months;

(8) for a Class C misdemeanor, not

more than thirty days; and

(9) for an infraction, not more

than five days. *

P.S. 5880.28

February 21, 1992

Page 1 - 10

The following comparison chart points up the

penalty differences between Sections 3559 and 3581:

3559 3581

(1) Class A felony, life or (1) Class A felony, life

death. or any period of time.

(2) Class B felony, 25 years (2) Class B felony, not

or more. more than 25 years.

(3) Class C felony, less than (3) Class C felony, not

25 years but 10 or more years. more than 12 years.

(4) Class D felony, less than (4) Class D felony, not

10 years but 5 or more years. more than 6 years.

(5) Class E felony, less than (5) Class E felony, not

5 years but more than 1 year. more than 3 years.

(6) Class A misdemeanor, 1 year (6) Class A misdemeanor,

or less but more than 6 not more than 1 year.

months.

(7) Class B misdemeanor, 6 months (7) Class B misdemeanor,

or less but more than 30 days. not more than 6 months.

(8) Class C misdemeanor, 30 days (8) Class C misdemeanor,

or less but more than 5 days. not more than 30 days.

(9) Infraction, 5 days or less (9) Infraction, not more

if no imprisonment than 5 days.

authorized.

As of the publication date of this manual, all

sentence classifications continue to be determined by 18 USC §

3559 since those offenses that result from laws enacted since

November 1, 1987, the effective date of the SRA, do not include a

letter grade that identifies the offense classification under 18

USC § 3581. Penalties for the violation of laws enacted since

the effective date of the SRA

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 11

are still being included in the same manner as the pre-SRA and;

therefore, must be classified under the provisions of 18 U.S.C. §

3559.

If offenses begin to include a letter grade classification

sometime in the future, then a Sentence Procedure Code for 18

U.S.C. § 3581 will be established at that time.

*

The court may, in addition to a term of imprisonment for a

petty offense, include a period of probation as authorized under

18 U.S.C. § 3561(a)(3) which states in part,

(a) In general.--A defendant who has been

found guilty of an offense may be sentenced

to a term of probation unless--. . .

(3) the defendant is sentenced at the

same time to a term of imprisonment for the

same or a different offense that is not a

petty offense.

(Note: A term of supervised release may not be imposed for a

petty offense (18 U.S.C. § 3583(b)(3).)

A petty offense is defined under 18 U.S.C. § 19 and states,

As defined in this title, the term

"petty offense" means a Class B misdemeanor,

a Class C misdemeanor, or an infraction, for

which the maximum fine is no greater than the

amount set forth for such an offense in

section 3571(b)(6) or (7) in the case of an

individual or section 3571(c)(6) or (7) in

the case of an organization.

The imprisonment terms that may be imposed for a petty

offense under 18 U.S.C. § 3559(a) states in part,

(7) six months or less but more than

thirty days, as a Class B misdemeanor,

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 11A

(8) thirty days or less but more than

five days, as a Class C misdemeanor, or

(9) five days or less, or if no

imprisonment is authorized, as an infraction.

18 U.S.C. § 3561 further reads in part,

(b) Authorized terms.--The authorized

terms of probation are--. . .

(2) for a misdemeanor, not more

than five years; and

(3) for an infraction, not more

than one year.

Based on the definition of a petty offense in 18 U.S.C. §

19, the maximum term of imprisonment that may be imposed under 18

U.S.C. § 3559(a), subsections (7), (8) and (9), is six months and

the maximum period of probation that may be imposed under 18

U.S.C. § 3561(b), subsections (2) and (3), is five years.

Any term of imprisonment imposed for a petty offense shall

be treated in the same manner as any other sentence imposed under

the SRA and shall be entered into SENTRY under the SPC of 0080

3559 SRA Sentence. The period of probation imposed shall be

entered into the SENTRY field provided for that purpose. The

period of probation is, of course, under the jurisdiction of the

sentencing court and the supervising U.S. Probation Office. The

prisoner shall be referred to the supervising U.S. Probation

Office for any questions about the manner in which the term of

probation is to be served or implemented. A sentence imposed for

probation revocation under 18 U.S.C. § 3565(a) states in part

that the court may--

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 11B

(2) revoke the sentence of probation and

impose any other sentence that was available

under subchapter A at the time of initial

sentencing.

(Note: Subchapter A, of Chapter 227--Sentences, provides

the General Provisions for the imposition of sentences under the

SRA.)

Any term of imprisonment imposed for a petty offense as the

result of probation revocation shall be treated in the same

manner as any other sentence imposed for probation revocation

under the SRA and shall be entered into SENTRY under the SPC of

0080 3559 SRA Sentence. The probation revocation sentence shall

be computed as beginning on the date that the probation is

revoked, provided the prisoner is in exclusive federal custody

based on the probation violator warrant. If there is one or more

sentences in operation at the time the probation revocation

sentence is imposed, then the provisions of 18 U.S.C. § 3584

(Multiple sentences of imprisonment) shall apply.

Any prior custody time awarded to, or time spent serving the

originally imposed imprisonment term for the petty offense, shall

not be carried over to the probation revocation sentence. If the

court, however, imposes a probation revocation sentence that,

when added to the original term of imprisonment, exceeds the

maximum for the offense, then ISM Staff, following the procedures

set forth in the Inmate Systems Management Manual, shall notify

the appropriate U.S. Attorney of the apparent excessive sentence

and request assistance in resolving the matter. *

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 11C

Each judgment and commitment must be carefully monitored to

assure that a sentence imposed under 18 U.S.C. §§ 3559 or 3581 is

within the time range of the violated statute. Any discrepancy

as to the length of the imposed sentence should be referred to

the U.S. Attorney as outlined in the Inmate Systems Management

Manual.

The sentence of imprisonment is added to the commencement

(beginning) date of sentence to arrive at a full term date of

sentence. The full term date can be affected by prior custody

time credit and inoperative time as well as the imposition of

concurrent or consecutive terms, all of which are covered in this

Manual.

P.S. 5880.28

Page 1 - 12

CN-02, July 29 1994

b. Commencement (Beginning Date) of Sentence. 18

U.S.C. § 3585(a) establishes the rule for commencement of

sentence and states, "(a) Commencement of sentence.-- A sentence

to a term of imprisonment commences on the date the defendant is

received in custody awaiting transportation to, or arrives

voluntarily to commence service at, the official detention

facility at which the sentence is to be served." If the prisoner

is serving no other federal sentence at the time the sentence is

imposed, and is in exclusive federal custody (not under the

jurisdiction of a federal writ of habeas corpus ad prosequendum)

at the time of sentencing on the basis of the conviction for

which the sentence is imposed, the sentence commences on the date

of imposition, even if a state sentence is running along

concurrently. If the prisoner is, however, serving another

federal sentence at the time a new sentence is imposed, then 18

U.S.C. § 3584 (Multiple sentences of imprisonment) must be

followed as discussed in paragraph e. of this chapter.

*

The Bureau of Prisons calculates any part of a day in

custody serving sentence as a full day served on the sentence

(See Chapter I, paragraph 3.d., third subparagraph) and any part

of a day in official detention as a full day for prior custody

time credit purposes (See Chapter I, paragraph 3.c.(1)). In

those cases, however, when the court imposes a sentence for a

term of hours, the exact number of hours imposed must be served,

regardless of whether the sentence is for more or less than 24

P.S. 5880.28

Page 1 - 12A

CN-02, July 29 1994

hours and regardless of whether the number of hours imposed

crosses one or more midnights. For example, if a sentence of six

hours is imposed and that sentence commences at 11:00 PM, then

the sentence would not terminate until 5:00 AM the next day.

A sentence that is imposed in the form of hours

commences at the time it is imposed, provided the person is in

exclusive federal custody. If another U.S. Code or D.C. Code

sentence is in operation, then 18 U.S.C. § 3584 (See Chapter I,

paragraph e.) would, of course, apply. If the person is ordered

to voluntarily surrender, then the sentence would not commence

until that person arrived at the designated facility to serve the

sentence (See Chapter I, paragraph 3.b., third subparagraph). *

If the prisoner is released from physical custody

pending appeal on the same day that the sentence is imposed, and

no other sentence is involved, then the sentence shall be stayed

(shall not begin to run) until the prisoner enters custody for

service of that sentence. (See Rule 38 of the Federal Rules of

Criminal Procedure.) If the prisoner is released pending appeal

subsequent to the day of sentencing, then the sentence shall

begin to run on the date of sentencing and shall become

inoperative the day after the prisoner is physically released.

P.S. 5880.28

February 21, 1992

Page 1 - 13

If the court authorizes a prisoner to voluntarily surrender,

as described in the Program Statement on Unescorted Trips and

Voluntary Surrenders, to the detention facility at which the

sentence is to be served, then the sentence does not commence

until the prisoner arrives at the designated facility. If the

prisoner is retained in federal custody after sentencing for any

days prior to departure for voluntary surrender to the designated

facility, then that time, including the date of sentencing, shall

be treated as presentence time credit.

A prisoner who is in non-federal custody at the time of

sentencing may begin service of the federal sentence prior to

arriving at the designated federal facility if the non-federal

facility is designated in accordance with the Program Statement

on Designation of State Institution for Service of Federal

Sentence and 18 USC § 3621 (Imprisonment of a convicted person).

This type of designation is ordinarily made only upon the

recommendation of the sentencing court.

In no case can a federal sentence of imprisonment commence

earlier than the date on which it is imposed.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14

c. Prior Custody Time Credit. The SRA includes a new

statutory provision, 18 U.S.C. § 3585(b), that pertains to

"credit for prior custody" and is controlling for making time

credit determinations for sentences imposed under the SRA. Title

* 18 U.S.C. § 3568, repealed effective November 1, 1987, as

implemented by the "Old Law" Sentence Computation Manual, remains

the controlling statute for all sentences imposed for offenses

that occurred on or after September 20, 1966 up to November 1,

1987.

*

Statutory Authority: Prior custody time credit is

controlled by 18 U.S.C. § 3585(b), and states, "A defendant shall

be given credit toward the service of a term of imprisonment for

any time he has spent in official detention prior to the date the

sentence commences--

(1) as a result of the offense for which

the sentence was imposed; or

(2) as a result of any other charge for

which the defendant was arrested after the

commission of the offense for which the

sentence was imposed;

that has not been credited against another sentence."

Definitions:

* Raw EFT: The Raw EFT for both a federal and non-federal

sentence is determined by adding the total length of the sentence

to be served to the beginning date of the sentence resulting in a

full term date of sentence (Raw EFT) that does not include any

time credit, e.g., presentence or prior custody time or good

time. (Inoperative time that may affect either the state or

federal Raw EFT shall be referred to the RISA for assistance.)

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14A

Qualified non-federal presentence time: Time spent in non-federal presentence custody from the date of the federal offense,

that does not overlap any other authorized prior custody time

credits, to the date the first sentence begins to run, federal or

non-federal, is qualified non-federal presentence time.

Date of offense:

(1) The date of offense for a new conviction (as

shown on the judgement and commitment) is the date on which the

criminal act takes place, or the date on which the ongoing *

criminal activity ends, as charged in a single count. In a

multiple count judgment and commitment, the earliest

date of offense for the multiple counts shall be controlling for

prior custody time credit determinations. Some examples follow:

(a) Bank robbery. The date of the bank

robbery is the date of offense regardless of when the identity of

the offender is discovered or when the arrest occurs.

(b) Bank fraud. Bank fraud may be a single

criminal event, such as a bank robbery, or it may be a continuing

type of offense that will span several days, months or years. In

a continuing offense that involves more than one episode of bank

fraud, as charged in one count, the date of offense is the date

on which the criminal activity ends for that count.

(c) Conspiracy. A conspiracy is a

continuing type of criminal activity that ends when the

conspiracy discontinues or when an individual who is

participating in a conspiracy terminates participation in the

conspiracy.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14B

(d) Escape. An escape is a continuing type

of criminal offense that continues until the escapee is

apprehended. The date of offense, therefore, for a person who

escapes from service of a sentence, is the date on which the

escapee is apprehended by federal agents for the escape or for

another federal offense. Since the sentence from which the

prisoner escaped resumes immediately upon federal apprehension,

regardless of the reason, there will be no official detention

time to award under 18 U.S.C. § 3585(b)(1). In the unlikely

event that a person avoids detection as an escapee after arrest

on another federal charge and is released from that charge

without being taken into federal custody as an escapee, then the

date of offense will not be the date on which that arrest

occurred.

If an escapee is arrested by a non-federal

agency, the date of offense for any subsequent charge of escape

will be the date on which the escapee is apprehended for the non-

* federal offense, regardless of the date on which federal

authorities learn that the escapee was in non-federal custody,

provided the knowledge is acquired while the escapee is still in

non-federal custody. Verification that federal authorities had *

knowledge that the escapee was in non-federal custody can be

substantiated if a U.S. Marshal filed a detainer or if the U.S.

Marshal takes custody of the person immediately upon release from

the non-federal agency.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14C

Credit for time spent in non-federal official

detention, for which the non-federal agency gave no time credit

(18 U.S.C. § 3585(b)(2)) after the date of offense for the

escape, shall be given only on the sentence imposed for the

escape. Any escape sentence that results will be ordered to run

consecutively to the sentence from which the escape occurred

(§5G1.3(a), U.S. Sentencing Commission Guidelines Manual). If no

federal sentence results from the escape, then any time credit

that the state failed to award on its sentence shall not be *

awarded towards the original federal sentence from which the

*

inmate escaped since the non-awarded state time would have

occurred after the date that the federal sentence commenced. The

federal sentence from which the escape occurs shall remain

inoperative until the prisoner is returned to exclusive federal

custody, unless the Regional Director designates the state

institution as the place to continue service of the federal

sentence.

A person who escapes from a sentence imposed

prior to November 1, 1987 (an "Old Law" sentence) and who is

apprehended on or after November 1, 1987, will be sentenced (if

convicted for escape) under the SRA since the date of offense,

for this continuing type of offense, will have occurred on or

after November 1, 1987.

* (2) The date of offense for a prisoner whose

supervised release or probation has been revoked shall be the

date of the offense which led to the original sentence. Inmates

shall be given prior custody time credits for time spent in

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14D

official detention regardless of whether such detention predated

the conduct that led to the revocation. Any time spent in

official detention prior to the beginning date of the original

sentence that was not awarded to the original sentence or any

other sentence shall be given to the revocation term. If a

prisoner is released late ("past due") because of staff error, a

court order or executive clemency and is later returned as a

supervised release or probation violator, the late release time

shall be awarded on the supervised release or probation violator

term.

(3) The date of offense for a person who commits

the offense of Failure to Appear (also termed Bail Jumping), as a

result of absconding, and who is arrested by a federal agency,

will be the date on which the absconder is apprehended,

regardless of whether the apprehension was for absconding or for

another federal offense. (In the unlikely event that a person

avoids detection as an absconder after arrest on another federal

charge and is released from that charge without being taken into

federal custody as an absconder, then the date of offense will

not be the date on which the arrest occurred.)

If a Failure to Appear absconder is arrested by a non-federal agency, the date of offense will be the date on which the

absconder is apprehended for the non-federal offense, regardless

of the date on which federal authorities learn that the absconder

was in non-federal custody, provided the knowledge is gained

while the absconder is still in non-federal custody.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14E

Verification that federal authorities had knowledge that the

absconder was in non-federal custody can be substantiated if a

U.S. Marshal filed a detainer or if the U.S. Marshal takes

custody of the person immediately upon release from the non-federal agency.

If the person is subsequently convicted and sentenced

for Failure to Appear, then the date of apprehension as an

absconder will be the date of offense for the sentence imposed as

a result of the Failure to Appear offense. Any time spent in

non-federal official detention for which the non-federal agency

gave no time credit after the date of the offense (18 U.S.C. §

3585(b)(2)) shall be given on the Failure to Appear sentence.

Any time spent in federal official detention after the date of

offense shall, of course, be given under the provisions of 18

U.S.C. § 3585(b)(1). *

The absconder date of offense has a special

significance for a person admitted to bail prior to November 1,

1987 or for the person who failed to appear in court on a certain

date prior to November 1, 1987. In those situations, if the

absconder's date of offense, i.e., the date of offense for the

Failure to Appear offense, is prior to November 1, 1987, then

"Old Law" sentencing provisions will apply but if the absconder's

date of offense is on or after November 1, 1987, then SRA

sentencing provisions shall apply. This position is based on the

rationale that a Failure to Appear offense is a continuing type

of crime that, once begun, does not terminate or end until the

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14F

person (absconder) is apprehended. This offense, therefore, is

treated in the same manner as a conspiracy offense.

Official detention. "Official detention" is defined,

for purposes of this policy, as time spent under a federal

detention order. This also includes time spent under a detention

order when the court has recommended placement in a less secure

environment or in a community based program as a condition of

*presentence detention. In addition, on occasion it is necessary

for the court to order placement in a less secure environment or

in a community based program (including D.C. Department of

Corrections' programs such as work release) because of

overcrowding in the local place of detention. A person under

these circumstances remains in "official detention", subject to

the discretion of the Attorney General and the U.S. Marshals' *

Service with respect to the place of detention. Those defendants

placed in a program and/or residence as a condition of detention

are subject to removal and return to a more secure environment at

the discretion of the Attorney General and the U.S. Marshals'

Service, and further, remain subject to prosecution for escape

from detention for any unauthorized absence from the

* program/residence. (If there is any question as to whether such

a defendant was in fact under the jurisdiction of the U.S.

Marshals' Service, i.e., in the custody of the Attorney General,

staff shall contact the appropriate U.S. Marshal for

verification.) Such a defendant is not eligible for any credits

while released from detention.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14G

In Reno v. Koray, 115 S.Ct 2021 (1995), the

U.S. Supreme Court held that time spent under restrictive

conditions of release (including time spent in a community

treatment center (CCC) or similar facility) was not official

detention entitling an inmate to prior custody time credit under

18 U.S.C. § 3585(b). The court found that the interaction of the

Bail Reform Act and 18 U.S.C. § 3585(b) supported the Bureau of

Prisons' interpretation that a defendant is either released (with

no credit for time under conditions of release) or detained (with

credit for time in official detention).

Koray has also overruled Brown v. Rison, 895 F.2d

895 (9th Cir. 1990). As a result, the awarding of presentence

time credit under 18 U.S.C. § 3568 for time spent under

restrictive conditions shall also be discontinued. Brown is the

Ninth Circuit case that required the Bureau of Prisons to give

time credit to a sentence for time spent in a CCC or similar

facility.

The Koray decision means, therefore, that time

spent in residence in a CCC or similar facility as a result of

the Pretrial Services Act of 1982 (18 U.S.C. § 3152-3154), or as

a result of a condition of bond or release on own recognizance

(18 U.S.C. § 3141-3143, former 3146), or as a condition of

parole, probation or supervised release, is not creditable to the

service of a subsequent sentence. In addition, a release

condition that is "highly restrictive," and that includes "house

arrest", "electronic monitoring" or "home confinement"; or such

as requiring the defendant to report daily to the U.S. Marshal,

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 14H

U.S. Probation Service, or other person; is not considered as

time in official detention. In short, under Koray, a defendant

is not entitled to any time credit off the subsequent sentence,

regardless of the severity or degree of restrictions, if such

release was a condition of bond or release on own recognizance,

or as a condition of parole, probation or supervised release.

Any sentence computed for the first time before

June 5, 1995, and that sentence reflects an award of prior

custody time credits for time spent in a CCC or similar facility

shall retain any credits applied, regardless of any sentence

recomputation (e.g., for an addition or loss of prior custody

time credits or modification of sentence, or as the result of a

vacated sentence, including a sentence that was imposed after a

retrial) that occurs on or after June 5, 1995.

Any sentence, computed for the first time on or

after June 5, 1995, which reflects an award of prior custody time

credits for time spent in a CCC or similar facility under

conditions of release, that was not the result of a court order,

shall be recomputed to void such credit.

If it is discovered during a sentence

recomputation on or after June 5, 1995, that time was spent in a

CCC or similar facility that should have been awarded as the

result of a sentence computation performed prior to June 5, 1995,

but was not awarded, such time shall not be given on the

recomputation unless the court had ordered that such credit be

given.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 15

CCC or similar facility time that was awarded to a

sentence that was calculated for the first time prior to June 5,

1995 because the inmate was committed to the Bureau of Prisons in

error (e.g., premature release from non-federal custody or U.S.

Marshals' failure to return an inmate to the proper non-federal

jurisdiction after release on a writ) shall be canceled if the

subsequent recomputation occurs on or after June 5, 1995, unless

the court had ordered that such credit be given.

Any court order, regardless of when it was issued,

that awards prior custody time credits for time spent in a CCC or

similar facility, or for time spent under other forms of

restrictive conditions of release, for a sentence computed for

the first time on or after June 5, 1995, shall be referred to the

RISA. The RISA and the Regional Counsel shall contact the

Assistant U.S. Attorney who prosecuted the case and request that

a Motion for Reconsideration or an appeal be filed based on the

decision in Koray. The inmate shall retain the credit as long as

the court order remains in effect.

The USM-129 will on occasion show that a defendant

was in custody for one day. In such a case, staff may credit

that one day without further verification.

If an inmate states that he was in prior custody

for a day, or days, that was not shown on the USM-129, then staff

shall attempt to verify the inmate's claim with the arresting

agency even if the PSI substantiates the claim. These situations

usually arise when a defendant is issued a summons to appear

before the court in a criminal matter. After the hearing, if the

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 15A

defendant returns to the community without being placed on bail

or on "own personal recognizance," then that defendant is not

entitled to that day in court as a day in "official detention" on

a subsequent sentence even if required to report to the U.S.

Marshals' Service for processing (fingerprinting, photographing,

etc.). If the defendant is released on bail or on "own personal

recognizance" then that day is treated as a day in official

detention and shall be awarded as a day of prior custody time

credit. *

Official detention does not include time spent in

the custody of the U.S. Immigration and Naturalization Service

(INS) under the provisions of 8 U.S.C. § 1252 pending a final

determination of deportability. An inmate being held by INS

pending a civil deportation determination is not being held in

"official detention" pending criminal charges. (See Ramirez-

Osorio v. INS, 745 F.2d 937, rehearing denied 751 F.2d 383

(5thCir. 1984); Shoaee v. INS, 704 F.2d 1079 (9th Cir. 1983); and

Cabral-Avila v. INS, 589 F.2d 957 (9th Cir. 1978), cert. denied

440 U.S. 920, 99 S.Ct 1245, 59 L.Ed2d 472 (1979.)

A sentence imposed by a court for "Time Served," means

that all time spent in official detention (prior custody time),

as a result of the offense for which sentence was imposed, is

included in the "Time Served" sentence which the court imposed

and cannot be awarded to any other sentence.

Time spent serving a civil contempt sentence prior to

trial and/or sentencing does not constitute presentence time

credit toward the sentence that is eventually imposed.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 16

Time spent serving a civil contempt sentence does not

constitute presentence time credit toward any criminal sentence

that has been interrupted by, or that is running along

concurrently with, or that is to be served consecutively to, the

criminal sentence.

Official detention does not include any time in a

release status even though the defendant is considered "in

custody" for purposes of pursuing a habeas corpus petition with

the court, as cited by the U.S. Supreme Court in Hensley v.

Municipal Court, 411 U.S. 345 (1973) (see also Cochran v. U.S.,

489 F.2d 691 (5th Cir. 1974); Villaume v. United States, 804 F.2d

498 (8th Cir. 1986) (per curiam), cert. denied, 481 U.S. 1022

(1987)).

(1) Any part of a day spent in official detention equals

one day for credit purposes. Prior custody time credit shall be

applied in the following manner for the following situations:

(a) Credit related to 18 U.S.C § 3585(b)(1).

1 Credit will be given for time spent in official

detention as a direct result of the federal offense for which the

federal sentence was imposed (and not as a result of a writ from

another jurisdiction), provided it has not been credited against

another sentence. (See Example: 1)

* Frequently, the date on which the person is

arrested for the charge on which the subsequent sentence is

imposed is earlier than the "date offense concluded" as shown on

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 16A

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Fed SRA Sent SRA

SRA Arrest Imposed Rel Date

$ $ $

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ T

T T /))))))))))))-

/)))))))))1 Turned Over

State State on State

Writ Sent Imposed Detainer

In this example, the time spent in official

detention is the direct result of the federal

offense, and the state has merely borrowed

the prisoner on writ and imposed sentence.

All time spent in custody must be applied to

the federal computation, regardless of any

action taken by the state.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example: 1

the judgment and commitment. There are a variety of reasons for

this anomaly. Some courts have used the date of the indictment,

others have used the date a conspiracy or fraud ends (even though

the person was arrested for participation prior to that date),and

on occasion the date was simply incorrect. If it can be verified

that a person was in official detention on the charge for which

the sentence was imposed prior to the "date offense concluded" as

shown on the judgment and commitment, then such time shall be

awarded regardless of the date of offense on the judgment and

commitment order.

Credit shall not be given off a Failure to

Appear sentence for time in official detention that occurred

prior to the sentence that led to the Failure to Appear sentence

because any such time would have occurred prior to the Failure to

Appear date of offense. Time spent in official detention after

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 17

arrest for Failure to Appear shall, of course, be given off the

Failure to Appear sentence. *

2 Credit will not be given for any portion of

time spent serving another sentence regardless of whether the

sentence is federal, state, or foreign. The following exceptions

apply:

a Time spent serving another foreign or

state sentence that is vacated may be creditable as prior custody

time credit provided the sentence was not vacated merely for

resentencing. Any such time which is credited must be time spent

after the commission of the federal offense. If a vacated state

or foreign sentence results in a re-trial and subsequent

resentencing, any credit applied to that resentencing must be

removed from the federal sentence computation, provided the

inmate has not yet been released from that sentence.

b Time spent serving another federal,

foreign or state sentence that is vacated merely for resentencing

shall not have any effect on the SRA sentence computation until

such time as the inmate is resentenced. If the resentencing

results in a term which is less than the time the inmate has

already served on the vacated sentence, the excess time not now

credited to any other sentence shall be credited to the SRA term

provided it was time spent after the commission of the federal

offense.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 18

* 3 If an SRA term is vacated solely for the

purposes of a resentencing, then the date the sentence begins

will be the same as the original computation. Any time spent in

the community as the result of an appeal bond shall be treated as

inoperative time.

If a vacated sentence results in a re-trial and subsequent resentencing, the date the sentence will

begin is based on the final judgement, and any previous

creditable time shall be applied as prior custody time credits.

Any time spent in the community as the result of an appeal bond

shall not be credited (See Example: 2). *

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

SRA Arrest SRA Sent Resentence

Fraud Imposed (resulting from re-trial)

$ $ $ $

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

$ T

Sentence *

Vacated. Sentence Begins

In this example, all time spent prior to the date the

new term began is credited as "prior custody credit".

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example: 2

4 Prior Custody Credits for consecutive sentences

imposed on separate indictments, which include "old law" and SRA

sentences, will be evaluated based on the merits relative to the

individual sentences and their corresponding statutory provisions

for credits. Any credit towards satisfaction of the "old law

*"

sentence is explained in the "old law" Sentence Computation

Manual (see Example: 3). *

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 19

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&SRA

SRA Sentence

Arrest Bond Imposed (consecutive)

$ $ T $ $

$$$$$$$$$$$ +)))))))))))), $ $$$$$$$$$$$$$$

"old law" Bond * *

Arrest /)))))))))))-

"old law"

sentence

imposed

Period from SRA arrest to first bond release must be

credited on SRA sentence only. "Old law" presentence

custody will be applied to the "old law" comp. SRA

term begins on the date of release from the "old law"

sentence.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&E

&x&&

a&m&p&l&e&:&&&3&&&&&&&&&&&&&&&&&&&&&&

P.S. 5880.28

Page 1 - 20

CN-02, July 29 1994

* 5. As stated in Chapter I, paragraph

1, page 1 - 3, second and third paragraphs, "old law" and SRA

sentences may not be aggregated. This non-aggregation of "old

law" and SRA sentences creates an undesirable presentence (18

U.S.C. § 3568) and prior custody (18 U.S.C. § 3585(b)) time

credit inequity between that group of prisoners who receive

concurrent aggregated "old law" or concurrent aggregated SRA

sentences and the group of prisoners who receive concurrent "old

law" and SRA sentences that cannot be aggregated.

For example, if a prisoner receives

two concurrent "old law" sentences or two concurrent SRA

sentences, those sentences would be aggregated and the

presentence or prior custody time would be combined and

subtracted from the single aggregate EFT dates (and PE date in

the case of an "old law" sentence aggregate). This practice

allows the prisoner to receive the full benefit for all time

spent in jail prior to sentencing. To the contrary, if a

prisoner receives concurrent "old law" and SRA sentences (which

cannot be aggregated), and, if the presentence or prior custody

time credits due each are subtracted from the individual

sentences, then, full credit for all time spent in jail will

result in a period of "dead time", i.e., a period of jail time

for which no benefit is received on the sentence that is

controlling for actual release from confinement purposes.

P.S. 5880.28

Page 1 - 20A

CN-02, July 29 1999

Stating this inequitable consequence another way, the non-combination of all jail time causes the credit for the jail time

for one of the sentences to be ineffectual because the sentence

that is controlling for release purposes will not receive the

benefit of the jail time from the other sentence.

As a result, in order to assure

that those prisoners who receive concurrent "old law" and SRA

sentences, regardless of the order in which they are to be

served, shall receive the same time credit benefit (presentence

and prior custody time) that other prisoners receive when

concurrent like sentences are aggregated, the rule is established

that presentence and prior custody time credits shall be combined

and subtracted from the EFT of each sentence (and the PE date in

the case of an "old law" sentence) to achieve the same result as

if they had been aggregated.

If a calculation of the first

sentence to commence, utilizing the jail time credit applicable

only to the first sentence, results in an SRD that is earlier

than the DCB of the second sentence, then the rule will not apply

since termination of the confinement portion of the first

sentence will have occurred prior to the commencement (DCB) of

the second sentence.

In the event that application of

the combined presentence or prior custody time credit of a

concurrent second sentence causes the SRD of the first sentence

P.S. 5880.28

Page 1 - 20B

CN-02, July 29 1994

to be earlier than the DCB of the second sentence, then the

combined jail time credit shall continue to be applied in full to

both sentences. Application of this rule is not intended to

create a computation complication that would nullify the effect

of the rule.

If the concurrent second sentence

has an EFT that is less and an SRD that is later (after

application of any jail time credit belonging to the second

sentence only) than the first sentence to commence (after

application of any jail time credit belonging to the first

sentence only), then the rule shall not apply and each sentence

shall remain the same as if the other sentence did not exist and

shall be treated as "standing alone." *

6 Time spent in custody under a writ

of habeas corpus from non-federal custody will not in and of

itself be considered for the purpose of crediting presentence

time. The primary reason for "writ" custody is not the federal

charge. The federal court merely "borrows" the prisoner under

the provisions of the writ for secondary custody. (See Example:

4).

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 21

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

SRA Fed Sentenced SRA Sentence Begins (CS)

Offense Writ & Return $ $

* * * to State $$$$$$$$$$$$$$$$$$$$$$$$$$$$

* * * * *

& /)))))0)2))))))2))))))))))))1

* * *

State Unrelated State Sentence Completed

Offense State Sentence Turned over to USMS

In the above example, the time spent on writ is not creditable as

the underlying basis for custody is the state offense and all

time is credited to the state offense.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example: 4

(b) Credit related to 18 U.S.C. §

3585(b)(2).

1 Prior Custody Credit will be given

for time spent in official detention as the result of any

federal, state or foreign arrest which is not related to, yet

*

occurred on or after the date of the federal offense (as

shown on the judgment and commitment) for which the SRA sentence

was *

imposed; provided it has not been credited to another sentence.

The language in this Section eliminates any need for a federal

detainer to be on file or for bail to be set on the state or

foreign charges as a prerequisite for applying such prior custody

time credit toward the federal sentence. Relevant prerequisites

are:

a The non-related official

detention must have occurred on or after the date of the federal

offense for which the SRA sentence was imposed.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 22

b The non-related official

detention must not have been granted on another sentence. If it

was applied on a state or foreign sentence, then credit is not

applicable to the SRA sentence.

* 2 Failure by the non-federal

government to grant official detention credit (or the credit

granted was of no benefit) on a non-federal sentence, can be

determined if: *

a the non-federal charges were

dismissed.

b non-federal probation was

granted.

* c the federal and non-federal

terms are concurrent and the Raw EFT of the non-federal term is

equal to or less than Raw EFT of the federal sentence. Prior

custody credits shall be given for any time spent in non-federal

presentence custody that begins on or after the date of the

federal offense up to the date that the first sentence begins to

run, federal or non-federal. These time credits are known as

Willis time credits (See Willis v. U.S., 449 F2d 923 (CA 5,

1971). Credit shall not be given for any time spent in non-federal presentence custody prior to the date of the SRA offense.

Further, if the release from the non-federal sentence occurs

prior to the commencement of the federal sentence, then any non-federal presentence time awarded on the state sentence shall not

be applied to the federal sentence. Any other existing prior

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 22A

custody time credits shall be deducted from the federal EFT after

application of the Willis time credits. The following examples

are based on the Raw EFT of the non-federal sentence being equal

to or less than the Raw EFT of the federal sentence:

Example No. 5

Date of Federal Offense = 03-12-1994

Date Arrested by State = 03-25-1994

Date State Sentence Begins = 04-15-1994

Date Concurrent Federal Sentence Begins = 05-10-1994

Time to award off the federal sentence is from

03-25-1994 through 04-14-1994 which equals 21 days.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB

03-25-94 04-15-94 Raw EFT 04-14-99

/))))))))))3)))))))))))))))))))))))))))))))))))))1

21 days

$ $ $ $

& $$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-12-94 05-10-94 05-09-99

Federal Offense Date CC Federal Sentence Begins Raw EFT

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example No. 6

Date of Federal Offense = 03-12-1994

Date Arrested by State = 03-25-1994

Date Federal Sentence Begins = 04-01-1994

Date Concurrent State Sentence Begins = 04-15-1994

Time to award off the federal sentence is from

03-25-1994 through 03-31-1994 which equals 7 days.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB

03-25-94 04-15-94 Raw EFT 04-14-99

/))))))))))3)))))))))))))))))))))))))))))))))))))1

7 days

$ $ $

& $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-12-94

Federal 04-01-94 03-31-01

Offense Date Federal Sentence Begins Raw EFT

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 22B

Example No. 7

Date Arrested by State = 03-25-1994

Date of Federal Offense = 03-31-1994

Date State Sentence Begins = 04-15-1994

Date Concurrent Federal Sentence Begins = 05-10-1994

Time to award off the federal sentence is from

03-31-1994 through 04-14-1994 which equals 15 days.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB

03-25-94 04-15-94 Raw EFT 04-14-99

/))))))))))3)))))))))))))))))))))))))))))))))))))1

15 days

$ $ $ $

$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-31-94 05-10-94 05-09-99

Federal Offense Date CC Federal Sentence Begins Raw EFT

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example No. 8

Date Arrested by State = 03-25-1994

Date of Federal Offense = 03-31-1994

Date Federal Sentence Begins = 04-01-1994

Date Concurrent State Sentence Begins = 04-15-1994

Time to award off the federal sentence is from

03-31-1994 through 03-31-1994 which equals one day.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB

03-25-94 04-15-94 Raw EFT 04-14-99

/))))))))))3)))))))))))))))))))))))))))))))))))))1

1 day

$ $ $

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-31-94 04-01-94 03-31-01

Federal Federal Sentence Begins Raw EFT

Offense Date

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

d If the non-federal and federal

sentences are concurrent, the Raw EFT of the non-federal term is

greater than the Raw EFT of the federal term, and if the non-federal Raw EFT, after application of qualified non-federal

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 22C

presentence time, is reduced to a date that is earlier than the

federal Raw EFT, then a Kayfez (See Kayfez v. Gasele, 993 F.2d

1288 (7th Cir. 1993) situation exists. In such a situation, the

amount of qualified non-federal presentence time, i.e., the

amount of time in non-federal presentence time after the date of

the federal offense to the date that the non-federal or federal

sentence commenced, whichever is earlier, shall be applied to the

non-federal Raw EFT. The federal Raw EFT shall then be reduced

to equal the reduced non-federal EFT. Any other existing prior

custody time credits shall be deducted from the federal EFT after

application of the Kayfez time credits. Following are some

examples that demonstrate the process:

Example No. 9

Non-Federal Raw EFT = 09-18-1997

Federal Raw EFT = 09-05-1997

Date of Federal Offense = 03-12-1994

Date Arrested by Non-Federal Agency = 03-25-1994

Date Non-federal Sentence Begins = 04-15-1994

Date Concurrent Federal Sentence Begins = 05-10-1994

Qualified non-federal presentence time is from

03-25-1994 through 04-14-1994 which equals 21 days. The non-federal Raw EFT shall be reduced by the 21 days to August 28,

1997 and the federal Raw EFT shall be reduced to that date

resulting in an award of 8 days of prior custody time credits.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB

03-25-94 04-15-94 Raw EFT 09-18-97

/))))))))3)))))))))))))))))))))))))))))))3))))))1

08-28-97

21 days

21 days 08-28-97

& $ $ $ $ $ 8 days

$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$

03-12-94 05-10-94 09-05-97

Federal Offense Date CC Federal Sentence Begins Raw EFT

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 23

Example No. 10

Non-Federal Raw EFT = 09-18-1997

Federal Raw EFT = 09-15-1997

Date of Federal Offense = 03-12-1994

Date Arrested by Non-Federal Agency = 03-25-1994

Date Federal Sentence Begins = 04-01-1994

Date Concurrent Non-Fed Sentence Begins = 04-15-1994

Qualified non-federal presentence time is from

03-25-1994 through 03-31-1994 which equals 7 days. The non-federal Raw EFT shall be reduced by the 7 days to September 11,

1997 and the federal Raw EFT shall be reduced to that date

resulting in an award of 4 days of prior custody time credits.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB Raw EFT

03-25-94 04-15-94 09-18-97

/))))))))))3))))))))))))))))))))))))))3))))1

09-11-97 7 days

7 days 09-11-97

& $ $ $ $ 4 days

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-12-94 04-01-94 09-15-97

Federal Federal Sentence Begins Raw EFT

Offense Date

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example No. 11

Non-Federal Raw EFT = 09-18-1997

Federal Raw EFT = 09-15-1997

Date Arrested by Non-Federal Agency = 03-25-1994

Date of Federal Offense = 03-31-1994

Date Non-Federal Sentence Begins = 04-15-1994

Date Concurrent Federal Sentence Begins = 05-10-1994

Date Arrested by Non-Federal Agency = 03-25-

1994

Date of Federal Offense = 03-31-1994

Date Non-Federal Sentence Begins = 04-15-1994

Date Concurrent Federal Sentence Begins = 05-10-1994

Qualified non-federal presentence time is from

03-31-1994 through 04-14-1994 which equals 15 days. The non-federal Raw EFT shall be reduced by the 15 days to September 3,

1997 and the federal Raw EFT shall be reduced to that date

resulting in an award of 12 days of prior custody time credits.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 23A

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB Raw EFT

03-25-94 04-15-94 09-18-97

/)))))))))))))3)))))))))))))))))))))))))))3))))))1

09-03-97

15 days

15 days 09-03-97

$ $ $ $ $ 12 days

$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-31-94 05-10-94 09-15-97

Federal CC Federal Sentence Begins Raw EFT

Offense Date

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example No. 12

Non-Federal Raw EFT = 09-18-1997

Federal Raw EFT = 09-15-1997

Date Arrested by Non-Federal Agency = 03-25-1994

Date of Federal Offense = 03-31-1994

Date Federal Sentence Begins = 04-01-1994

Date Concurrent Non-Fed Sentence Begins = 04-15-1994

Qualified non-federal presentence time is from

03-31-1994 through 03-31-1994 which equals 1 day. The non-federal Raw EFT shall be reduced by the 1 day to September 17,

1997 and the federal Raw EFT shall remain the same since the

reduced non-federal EFT is still greater than the federal Raw EFT

resulting in no prior custody time credit off the federal

sentence.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

State Arrest DSB Raw EFT

03-25-94 04-15-94 09-18-97

/)))))))))))))))))))3)))))))))))))))))))))))))31

09-17-97 1 day

1 day

$ $

& $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

03-31-94 04-01-94 09-15-97

Federal Federal Sentence Begins Raw EFT

Offense

Date

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 24

e The state sentence is vacated

with further prosecution deferred, thereby effectively vacating

the non-federal credit (See Example: 13).

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Fed Consecutive SRA

SRA Writ Sentence Imposed

Offense * $ $ $

* /))))))$, $$$$$$$$$$$$$$$

* * * * *

& /)))))))))0))))2)))))))3))))))))))))))))))1

* * * *

State State Returned State Vacates Sentence

Arrest Sentence to State Turns over to USMS

While serving a state sentence, the state conviction is

vacated. All time spent in state custody is credited

to SRA term, which begins on the date received, in

accordance with 18 USC § 3585(a).

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example: 13

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 24A

f Ordinarily, if a state

sentence is imposed, either before or after the time that the

federal sentence commences, it is presumed that the state has

awarded, or will award, presentence time off the state sentence

for time spent in state custody in connection with the state

offense and ISM staff need make no further inquiry about it

unless the inmate claims that no state credit was, or will be,

given. In such a case, ISM staff shall follow the instructions

in subparagraphs c.(2), (a) and (c). *

(c) Credit related to a probation sentence

under 18 U.S.C. § 3563(b)(11) or (12).

1 Time accrued prior to the beginning

of the probation sentence shall not operate to reduce the time to

serve in a Community Corrections Center or in custody of the

Bureau of Prisons as a condition of probation.

2 Time spent in the intermittent

custody of the Bureau of Prisons or in a Community Corrections

Center as a condition of probation under subsection (11) or (12)

is not creditable as prior custody time credit on a subsequent

sentence received as a result of a revocation of the probation.

* Time spent serving a term of probation is not official detention

as to a sentence of imprisonment.

3 Prior custody time accrued after

the date of offense for the original sentence (not awarded to any

other sentence) that led to the probation sentence and any prior

custody time accrued after arrest as an alleged probation

violator, shall be applied to the subsequent sentence of

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 24B

imprisonment imposed as a result of the probation revocation,

pursuant to the guidelines previously discussed in this policy.

The date of offense for the probation revocation term is the same

as the date of offense for the original sentence that led to the

probation sentence. *

(d) Credit previously awarded which must be

withdrawn later.

In the event periods of state (or

foreign) credit unrelated to the SRA offense are applied to an

SRA sentence, and the state (or foreign country) later convicts

and sentences the individual to a term of imprisonment, the

credit given by the state will be withdrawn from the federal

computation provided the time in question does not convert to

"Willis" or "Kayfez" type of time credit as previously discussed.

Should the state grant credit for time in federal custody, the

time will not be withdrawn (provided it is directly related to

the SRA Offense and not another federal charge)(see Example: 14).

Occasionally, while serving a criminal sentence, a

prisoner will receive a civil contempt sentence which shall

interrupt the service of that criminal sentence. Prior custody

time credit is not accrued toward any other sentence during

service of a civil contempt sentence even if the service of the

civil contempt sentence is before trial and/or sentence on the

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 24C

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

SRA SRA Sentence

Arrest Bond Imposed

$ $ $ $

$$$$$$$$$$$ +)))))))))))))), $$$$$$$$$$$$$$$$$$$$$$ *

State Bond * /)))))-

Arrest * Turned

* Over to

CS State Term State

Initially, the period of state presentence custody

would be applied, as it was not credited to another

sentence; once a state consecutive term is imposed the

state custody time is withdrawn. Exclusive federal

prior custody time will not be withdrawn, regardless of

the state computation.

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Example: 14

criminal sentence to which it pertains. There are two civil

contempt sections. 18 U.S.C. § 401 states,

A court of the United States shall have power to

punish by fine or imprisonment, at its discretion,

such contempt of its authority, and none other,

as--

(1) Misbehavior of any person in its

presence or so near thereto as to

obstruct the administration of

justice;

(2) Misbehavior of any of its officers in

their official transactions;

(3) Disobedience or resistance to its lawful

writ, process, order, rule, decree, or

command.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 24D

A civil contempt sentence under 18 U.S.C. § 401 is

under the sole jurisdiction of the court and has no time limit.

The sentence will not terminate until the prisoner purges himself

of the contempt or until the court orders the sentence

terminated. 28 U.S.C. § 1826 states,

(a) Whenever a witness in any proceeding

before or ancillary to any court or grand

jury of the United States refuses without

just cause shown to comply with an order of

the court to testify or provide other

information, including any book, paper,

document, record, recording or other

material, the court, upon such refusal, or

when such refusal is duly brought to its

attention, may summarily order his

confinement at a suitable place until such

time as the witness is willing to give such

testimony or provide such information. No

period of such confinement shall exceed the

life of--

(1) the court proceeding, or

(2) the term of the grand jury, including

extensions,

before which such refusal to comply with the

court order occurred, but in no event shall

such confinement exceed eighteen months.

(b) No person confined pursuant to subsection

(a) of this section shall be admitted to bail

pending the determination of an appeal taken

by him from the order for his confinement if

it appears that the appeal is frivolous or

taken for delay. Any appeal from an order of

confinement under this section shall be

disposed of as soon as practicable, but no

later than thirty days from the filing of

such appeal.

(c) Whoever escapes or attempts to escape from the

custody of any facility or from any place in which

or to which he is confined pursuant to this

section or section 4243 of title 18, or whoever

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 25

rescues or attempts to rescue or instigates,

aids, or assists the escape or attempt to

escape of such a person, shall be subject to

imprisonment for not more than three years,

or a fine of not more than $10,000, or both.

A civil contempt sentence under 28 U.S.C. § 1826

may be ended in any one of four ways, the actual manner dependent

upon which circumstance occurs first, and they are: 1) The

prisoner purges himself of contempt by cooperating with the

court; 2) the court proceedings terminate; 3) the term imposed by

the court (not to exceed 18 months) expires; and 4) the term of

the grand jury expires.

Unless the court orders otherwise, a civil

contempt sentence shall interrupt the service of a criminal

sentence for the duration of the civil contempt sentence. As a

result, in the case of a civil contempt sentence that is ordered

to commence on the date that it is imposed, the criminal sentence

will become inoperative on the day after the civil contempt

sentence begins and shall resume running on the day that the

contempt sentence ends, providing that the prisoner is in federal

custody for service of the criminal sentence.

If the civil contempt sentence is ordered to begin

some date in the future, then the criminal sentence will become

inoperative on the day that the contempt sentence begins and

shall resume running on the day that the contempt sentence ends,

providing that the prisoner is in federal custody for service of

the criminal sentence.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 26

If a civil contempt sentence is in effect when a

criminal sentence is imposed, and the prisoner is available for

service of the sentence, the just imposed criminal sentence runs

concurrently with the civil contempt sentence unless the court

specifically orders the criminal sentence to be served

consecutively to preserve the intended effect of the civil

contempt sentence.

(2) DOCUMENTATION. Prior custody credit will be given

only with proper documentation indicating that the prisoner was

in official detention within the application of paragraph 5.

Proper documentation will consist of written documentation, for

placement in the prisoner's Judgment and Commitment File, from

any law enforcement agency (including probation officers). This

* includes verified phone, fax, or teletype messages, PSI, Rap

Sheet, Booking Sheets, SENTRY, USM Form 129, etc.

(a) No credit shall be given based solely on

documents or information received from a prisoner, a defense

attorney, or other person or organization acting on the behalf of

the inmate. Information from such sources shall be thoroughly

investigated and verified before credit may be given. The

verification effort will consist of one communication (with

written documentation that contact was made, either in the form

of a copy of the letter, fax, or teletype message, or by

documenting the phone call) and one following communication if no

response is received. If the follow-up communication produces no

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 27

response, the matter should be referred to the appropriate

Regional Inmate Systems Administrator.

(b) Should the Judgment and Commitment order make

a recommendation that a period of time credit be awarded to the

sentence that is not authorized, the recommendation may be

treated as surplusage and the credit will not be allowed. No

letter need be written to the court that the time was not

awarded. If the court, however, orders that a period of time be

awarded that is not authorized, a letter must be sent to the

appropriate U.S. Attorney requesting assistance in resolving the

problem (Follow the instructions in the Inmate Systems Manual for

communicating with the U.S. Attorney and the Reno v. Koray

instructions beginning on page 1 - 14F, if applicable). Pending

resolution of the problem, the sentence shall be computed as

reflected on the Judgment and Commitment. *

(3) QUESTIONABLE SITUATIONS. Questions or problems

that arise as to the applicability of any of the provisions of

this policy shall be referred to the Regional Inmate Systems

Administrator. Any resolution of a question or problem that may

require a decision outside of, or contrary to, this policy or

that may require a precedent setting decision, shall be referred

to the Chief of Inmate Systems in the Central Office for review.

P.S. 5880.28

February 21, 1992

Page 1 - 28

d. Inoperative Time. Once a sentence has begun to

run, it may become "inoperative" (stop running) for a number of

reasons, such as, escape, civil contempt, and release pending

appeal. The reason a sentence becomes inoperative as a result of

the aforementioned reasons is because the prisoner is no longer

in official detention, i.e., the prisoner is not in the custody

of the Attorney General or the Bureau of Prisons.

There is no statute that refers specifically to the

term inoperative and there is no statute that states a sentence

"stops running" when a prisoner causes himself to be removed from

official detention. Under 18 USC § 3585, however, a prisoner

must be in official detention before the sentence commences, or

before the prisoner may receive presentence time credit that can

be applied to the sentence. Therefore, the sentence cannot run,

or must stop running, whenever the prisoner is not in official

detention. The BOP has no authority to grant time credit toward

the service of a sentence when a prisoner is not in official

detention.

For example, a prisoner becomes an escapee upon

departure from official detention (without official authorization

or permission), and the sentence becomes inoperative beginning

the next day and remains inoperative through the day before the

prisoner is either recaptured or returns to official detention

voluntarily. In other words, the prisoner receives a day of

credit

P.S. 5880.28

February 21, 1992

Page 1 - 29

for the date of escape and a day of credit for the date of return

to official detention.

Another example of return to physical custody would

result if the prisoner, while in escape status, is arrested on a

new federal charge. In such a case, the sentence from which the

escape occurred would begin running on the date of the new

arrest. This restarting of the escape sentence would, of course,

nullify any presentence time credit toward a future sentence that

results from the new arrest, provided that the new sentence and

the escape sentence are aggregated.

If the escapee is arrested by state authorities for

a state charge, then the federal sentence would not resume

running until the prisoner was turned over to exclusive federal

custody. Production of the prisoner in federal court on the

basis of a federal writ of habeas corpus ad prosequendum from

state custody does not constitute a return to federal custody for

the purpose of restarting the sentence from which the prisoner

escaped. (Also see the Program Statement on Escape From Extended

Limits of Confinement.

Federal custody of the prisoner could be effected

for an escapee in state custody by designating state custody as

the place to serve the remainder of the sentence from which the

prisoner had escaped. (See the Program Statement on Designation

to State Institution for Service of Federal Sentence.)

P.S. 5880.28

January 5, 1993, CN-1

Page 1 - 30

Following are some rules regarding the application of

inoperative time.

*

(1) Inoperative time is applied to the sentence

before jail time is deducted. *

(2) Inoperative time is added to the full term

date of the sentence that is running at the time the inoperative

time occurs. If a subsequent concurrent sentence is imposed,

then the inoperative time would have no effect on the full term

date of the subsequent new concurrent sentence.

(3) The Anniversary Date, and thus the Vested

Date, must always be adjusted as the result of inoperative time.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 31

e. Multiple Sentences of Imprisonment. The statute that

governs the manner in which multiple sentences of imprisonment

may be imposed is 18 U.S.C. § 3584.

* (1) Subsection (a) of Section 3584 states,

(a) Imposition of concurrent or

consecutive terms.--If multiple terms of

imprisonment are imposed on a defendant at

the same time, or if a term of imprisonment

is imposed on a defendant who is already

subject to an undischarged term of

imprisonment, the terms may run concurrently

or consecutively, except that the terms may

not run consecutively for an attempt and for

another offense that was the sole objective

of the attempt. Multiple terms of

imprisonment imposed at the same time run

concurrently unless the court orders or the

statute mandates that the terms are to run

consecutively. Multiple terms of

imprisonment imposed at different times run

consecutively unless the court orders that

the terms are to run concurrently.

The Bureau of Prisons interprets the phrase,

"an undischarged term of imprisonment," as applying to any

lawfully imposed federal or state, local or foreign (non-federal)

sentence or revocation of a conditional release term (probation,

supervised release, parole, etc.). *

The legislative history for this subsection

states that,

. . . if the court is silent as to whether

terms of imprisonment imposed at the same

time (emphasis added) are concurrent or

consecutive, the terms run concurrently

unless a statute requires that they be

consecutive. If, on the other hand, multiple

terms of imprisonment are imposed at

different times (emphasis added) without the

judge specifying whether they are to run

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 32

concurrently or consecutively, they will run

consecutively unless the statute specifies

otherwise.

This subsection allows the court flexibility

in sentencing when multiple terms of imprisonment are imposed and

codifies the rules to follow if the court remains silent.

*

Sentences that are imposed as the result of a

single trial on the counts within a single indictment are

considered to have been imposed at the same time, regardless of

whether they are imposed at different times on the same date or

on a later date.

Sentences that are imposed on the same date,

or on different dates, based on convictions arising out of

different trials, are considered to have been imposed at

different times even if the trials arose out of the same

indictment.

The court's sentencing flexibility, in

addition to applying to federal undischarged terms of

imprisonment, also extends to those prisoners who have non-federal undischarged terms of imprisonment.

The court may, for a prisoner who is serving

a non-federal undischarged term of imprisonment while "on loan"

to the federal government under the jurisdiction of a federal

writ of habeas corpus ad prosequendum, impose the federal

sentence to run concurrently with, or consecutively to, the other

undischarged term of imprisonment. Upon receipt of the judgment

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 32A

and commitment from the U. S. Marshals' Service that orders the

federal sentence to be served concurrently with the non-federal

sentence, the RISA shall, in accordance with 18 U.S.C. § 3621(b),

designate the non-federal facility as the place to serve the

federal sentence and complete the other procedures required by

the Program Statement on Designation of State Institution for

Service of Federal Sentence, for executing this type of

concurrent sentence.

On occasion, a federal court will order the

federal sentence to run concurrently with or consecutively to a

not yet imposed term of imprisonment. Case law supports a

court's discretion to enter such an order and the federal

sentence shall be enforced in the manner prescribed by the court.

If the just imposed federal sentence is ordered to run

concurrently with a non-existent term of imprisonment, then the

RISA shall designate the non-federal place as the place to serve

the federal sentence as of the date that the federal sentence was

imposed. If the federal sentence is silent, or ordered to run

consecutively to the non-existent term of imprisonment, then the

federal sentence shall not be placed into operation until the

U.S. Marshals' Service or the Bureau of Prisons gains exclusive

custody of the prisoner.

Regardless of whether the court orders the

federal sentence to be served consecutively to, or concurrently

with, the non-federal non-existent or undischarged term of

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 33

imprisonment, the prisoner shall be returned to the non-federal

jurisdiction until the prisoner is released (completes the

undischarged term of imprisonment) from the non-federal term.

Federal courts sometime order a portion of

the federal sentence to run concurrently with or consecutively to

another federal sentence or a non-federal sentence. The Bureau

of Prisons will attempt to accommodate a court's intent as fully

as possible. Since the possible number of ways of imposing a

portion of a sentence concurrently with or consecutively to

another sentence are numerous, staff should refer such sentences

to the RISA for assistance. *

(2) Subsection (c) of Section 3584 provides the

rules for the treatment (calculation) of multiple sentences and

states,

Multiple terms of imprisonment ordered to run

consecutively or concurrently shall be

treated for administrative purposes as a

single, aggregate term of imprisonment.

* This statement means that SRA sentences,

including a term of imprisonment that results from a revocation

of supervised release or probation, shall be aggregated to form a

single sentence for computation purposes. Those sentences that

were imposed, however, on or after November 1, 1987 (the

effective date of the SRA) but prior to the Supreme Court

decision in Mistretta January 18, 1989 (during which some courts

held that some or all of the SRA was unconstitutional, shall not

be aggregated with valid SRA sentences. A sentence that is, or

was, imposed for an offense that occurred prior to

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 34

November 1, 1987 ("Old Law" offense), shall not be aggregated

with a valid or invalid SRA sentence. *

(3) If a multi-count indictment in a single

judgment and commitment contains an offense(s) that was completed

before November 1, 1987, and an offense(s) that was completed

on or after November 1, 1987, then those pre and post SRA counts

shall be treated separately (not aggregated) and the sentences

shall be computed in accordance with the sentencing laws in

effect at the time of the completion of those offenses. If a

count is ordered to be served consecutively to a count

with which it cannot be aggregated, then the consecutive

count shall be held as a detainer until release from the

preceding count occurs.

(4) The concurrent sentence aggregation

requirement discussed in paragraph e.(2) of this Chapter, could

create a set of circumstances that would allow a concurrent

sentence to be served in a shorter period of time than if it were

standing alone.

For example, a sentence of ten years that

began on January 19, 1989 would expire with good conduct time

(432 days) on October 5, 1997 and a concurrent one year sentence

that begins on October 4, 1997 (the day before the release date

on the ten year sentence) would, if standing alone, expire on

October 3, 1998 (no GCT is earned on a sentence of one year, so

both the release date and full term date occur on the same date).

You will note in this example that the

concurrent one year sentence has a beginning date that is later

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 35

than the beginning date of the ten year sentence but the full

term date and the release date for the one year sentence, if

standing alone, would be less than the full term date of the ten

year sentence. Because of the language of 18 U.S.C. § 3584(c)

that requires that multiple terms of imprisonment be treated as a

single, aggregate term, then the one year sentence would have the

same date of release as the ten year sentence of October 5, 1997

as shown in the following diagram:

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

10 Yrs/DCB 01-19-89 SRD 10-05-97 EFT 01-18-99

$ $ $

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

$ $ $

*

$* $

1 Yr cc DCB 10-04-97$&&&&&&&&$ EFT&SRD 10-03-98

10-05-97

Release Date from

Aggregate Term

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

As a result of this interpretation of the

statute, in the above example the prisoner would serve only two

days on the one year sentence and gain a "windfall" of 363 days

thereby avoiding serving the major portion of the one year

sentence. This "problem" sentencing result will occur each time

that a concurrent sentence has the following conditions:

a. The concurrent sentence has a beginning

date that falls on, or is later than, the beginning date of the

first sentence.

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 36

b. The concurrent sentence has a full term

date that falls on, or is earlier than, the full term date of the

first sentence.

c. The concurrent sentence has a release

date that is later than the release date of the first sentence.

Subsection (c), while probably not

contemplating the type of "windfall" situation described above

is, nonetheless, clear and unequivocal about the treatment of

concurrent terms (as well as consecutive terms) as a single term

of imprisonment for administrative purposes.

The "windfall" situation is avoided in

concurrent sentence situations when both the beginning date and

full term date fall within those dates on the first sentence,

providing the release date of the concurrent sentence is earlier

than the release date of the first sentence.

Again, the "windfall" condition is avoided

when the beginning date of the concurrent sentence (regardless of

length - could be shorter or longer than the first sentence)

falls on, or begins later than the first sentence, but the full

term date of the concurrent sentence is longer than the first

sentence. For example, a sentence of ten years (the first

sentence) that began on January 19, 1989 has a full term date of

January 18, 1999. A twelve year concurrent sentence imposed on

March 12, 1990 has a full term date of March 11, 2002. The

sentences are aggregated as required by 18 U.S.C. § 3584(c) and

result in a beginning date of January 19, 1989 and a full term

PS 5880.28

(CN-03) February 14, 1997

Page 1 - 37

date of March 11, 2002, for a total aggregate term of thirteen

years, one month, and twenty-one days and a release date of July

1, 2000 (618 days) as shown below:

EFT Date of Concurrent Sentence = 2002-03-11

EFT Date of First Sentence = -1999-01-18

Overlap (3 Yrs, 1 Mo, 21 Dys) = 3-01-21

Length of First Sentence (10 Yrs) = + 10-00-00

Length of Aggregate (13 Yrs, 1 Mo, 21 Dys)= 13-01-21

EFT Date of Aggregate = 2002-03-11 = 23081

GCT on Aggregate (618 Dys) = - 618

SRD of Aggregate = 2000-07-01 = 22463

PS 5880.28

CN-7 9/20/99

Chapter 1, Page 1-37a

* e-1. Implementation of the Firearm Penalty Provision Under

18 U.S.C. § 924(c)(1), as Outlined in U.S. v. Gonzales.

Effective October 12, 1984, P.L. 98-473 amended § 924(c)(1), for

firearm offenses committed on or after that date, to read in

part,

"Notwithstanding any other provision of law, . . . nor

shall the term of imprisonment imposed under this

subsection run concurrently with any other term of

imprisonment [emphasis added] including that imposed

for the crime of violence or drug trafficking crime in

which the firearm was used or carried."

The Bureau issued policy instructions that required the

924 count to be served first and the non-924 count(s) subsequent,

regardless of the order in which the counts were imposed in a

single J&C order. The Gonzales decision, however, held that a

court may apply a sentence containing both a 924 count and a non-

924 count, or counts, in a different way than Bureau policy had

previously explained.

a. General 18 U.S.C. § 924(c)(1) Policy For New Law Sentences.

(Note: In the policy that follows, the use of the term

sentence means a new law federal sentence, unless otherwise

specified.)

— All counts in a single J&C shall be served in the order

imposed by the court.

— Unless otherwise specified, reference to a 924/non-924

sentence, in a single J&C, means that the counts have

been aggregated into a single sentence for that J&C, as

required by 18 U.S.C. § 3584(c).

— A 924/non-924 sentence that is ordered to run

consecutively to an existing federal sentence shall be

added to the existing federal sentence and calculated

as an aggregate, provided there is nothing to prevent

the aggregate, i.e., old law and new law sentence

combination or SRA/VCCLEA and PLRA combination.

— A 924/non-924 sentence that is ordered to run

consecutively to a non-federal or old law sentence, but

cannot be aggregated with it, shall be calculated as

beginning on the date of release from the non-federal

or old law sentence.

PS 5880.28

CN-7 9/20/99

Chapter 1, Page 1-37b

— A sentence imposed after a 924/non-924 sentence may be

imposed in any manner the court deems appropriate,

i.e., concurrent or consecutive.

b. Calculation of New Law Sentences Which Include An

18 U.S.C. § 924(c)(1) Count

(Note: In the examples that follow, one day is added to the

subtraction calculation, as if the term commenced on the

DCB. Also, the ¡raw¢ Expiration Full Term (EFT) date is

without application of jail credit.)

— If a non-federal or old law sentence exists at the time

the 924/non-924 sentence is imposed, the 924 count

shall be served consecutively to the existing non-federal or old law sentence. The non-924 counts may be

served concurrently with the existing non-federal or

old law sentence, if so ordered by the court. Assuming

that the non-924 counts are ordered to run concurrent

with the existing sentence, this non-aggregate

calculation shall be performed as follows:

1) Determine the non-federal or old law release date.

2) Add the consecutive 924 term to the non-federal or

old law release date to establish a “raw” EFT date.

3) Subtract the total term of the 924/non-924 sentence

from the just established “raw” EFT date to arrive

at a DCB.

4) Calculate the 924/non-924 sentence.

If the DCB is on or after the date the 924/non-924

sentence was imposed, use the established DCB to

calculate the 924/non-924 sentence. (See Example No. 1)

Example No. 1: The first J&C is a 5-year non-federal

or old law sentence imposed on 06-15-1988, with an SRD

of 02-20-1992. The second J&C is an 84 month,

924/non-924 sentence, imposed on 06-18-1988, with the

24-month non-924 count to run concurrently with the

first sentence and the 60-month 924 count to run

consecutively. The 60-month 924 count is added to the

SRD (02-20-1992) of the first sentence, resulting in a

“raw” EFT date of 02-19-1997. The 84-month sentence is

then subtracted from the “raw” EFT date of 02-19-1997,

causing a DCB of 02-20-1990 for the second sentence,

PS 5880.28

CN-7 9/20/99

Chapter 1, Page 1-37c

which is later than the date of imposition (06-18-

1988). The second sentence of 84 months shall,

therefore, commence on the DCB of 02-20-1990.

Calculation for Example No. 1:

Step 1: Step 2:

First sentence Second sentence (c/s 924

1988-06-15 1992-02-20 count)

+ 5 + 5

1993-06-14* (Raw EFT) 1997-02-19* (Raw EFT)

1992-02-20 (SRD)

Step 3: Step 4:

1997-02-19 1990-02-20

- 7 + 7

1990-02-19 1997-02-19* (Raw EFT of

+ 1 924/non-924

1990-02-20 (DCB - later Sentence)

than 06-18-1988)

If the DCB is earlier than the date of imposition of

the 924/non-924 sentence, calculate by using the date

of imposition of the 924/non-924 sentence. (See

Example No. 2)

Example No. 2: The first J&C is a 5-year non-federal

or old law sentence imposed on 06-15-1988 with an SRD

of 02-20-1992. The second J&C is an 84-month 924/non-

924 sentence imposed on 12-15-1990, with the 24-month

non-924 count to run concurrently with the first

sentence and the 60-month 924 count to run

consecutively. The 60-month 924 count is added to the

SRD (02-20-1992) of the first sentence, resulting in a

“raw” EFT of 02-19-1997. The 84-month sentence is then

subtracted from the “raw” EFT of 02-19-1997, causing a

DCB of 02-20-1990 for the second sentence, which is

earlier than the date of imposition (12-15-1990). The

second sentence of 84 months shall, therefore, commence

on the date of imposition of 12-15-1990.

PS 5880.28

CN-7 9/20/99

Chapter 1, Page 1-37d

Calculation for Example No. 2:

Step 1: Step 2:

First sentence Second sentence (c/s 924

1988-06-15 1992-02-20 count)

+ 5 + 5

1993-06-14* (Raw EFT) 1997-02-19* (Raw EFT)

1992-02-20 (SRD)

Step 3: Step 4:

1997-02-19 1990-12-15

- 7 + 7

1990-02-19 1997-12-14* (Raw EFT of

+ 1 924/non-924

1990-02-20 (DCB - earlier Sentence)

than 12-15-1990)

— If a new law sentence exists at the time the 924/non-

924 sentence is imposed and the 924 count is to be

served consecutively to the other counts in that J&C

and to the existing new law sentence, then the non-924

count may be served concurrently with the existing

sentence, if so ordered by the court.

When the non-924 count is concurrent, the aggregate

calculation shall be performed as follows:

1) Add the 924 term to the existing new law term, for

a total aggregate term.

2) Add the aggregate term to the DCB of the first

sentence to establish a “raw” EFT date.

3) Subtract the total term of the 924/non-924 sentence

from the just established “raw” EFT date to arrive

at a DCB.

4) Calculate the aggregate sentence.

If the DCB is on or after the date the 924/non-924

sentence was imposed, add the term of the 924 count to

the term of the existing new law sentence for a total

aggregate term. Calculate the aggregate sentence using

the DCB of the first sentence. (See Example No. 3)

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Example No. 3: The first J&C is a 60-month new law

sentence imposed on 06-15-1988. The second J&C is an

84-month 924/non-924 sentence imposed on 06-18-1988,

with the 24-month non-924 count to run concurrently

with the first sentence and the 60-month 924 count to

run consecutively. The 60-month 924 count is added to

the first sentence of 60 months, for a total term of

120 months, and, a “raw” EFT of 06-14-1998. The 84-month sentence is then subtracted from the aggregate

“raw” EFT of 06-14-1998 causing a DCB of 06-15-1991,

for the second sentence, which is later than the date

of imposition (06-18-1988). The 120-month aggregate

sentence shall, therefore, commence on the DCB of the

first sentence, 06-15-1988.

Calculation for Example No. 3:

Step 1: Step 2:

First sentence: 60 months 1988-06-15

924 term: + 60 months + 10

Total term: 120 months 1998-06-14* (Raw EFT)

Step 3: Step 4:

1998-06-14 1988-06-15

- 7 + 10

1991-06-14 1998-06-14* (Raw EFT of

+ 1 Aggregate

1991-06-15 (DCB - later Sentence)

than 06-18-1988)

If the DCB is earlier than the date of imposition of

the 924/non-924 sentence, subtract the “raw” EFT of the

first sentence from the “raw” EFT of the second

sentence to determine the concurrent overlap. Add the

concurrent overlap, with the term of the first

sentence, to establish the total aggregate term. (See

Example No. 4)

Example No. 4: The first J&C is a 60-month new law

sentence imposed on 06-15-1988. The second J&C is an

84-month 924/non-924 sentence imposed on 02-15-1992,

with the 24-month non-924 count to run concurrently

with the first sentence and the 60-month 924 count to

run consecutively. The 60-month 924 count is added to

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the first sentence of 60 months, for a total term of

120 months, and, a “raw” EFT of 06-14-1998. The 84-month sentence is then subtracted from the aggregate

“raw” EFT of 06-14-1998 causing a DCB of 06-15-1991,

for the second sentence, which is earlier than the date

of imposition (02-15-1992).

The “raw” EFT of the first sentence is 06-14-1993. The

“raw” EFT of the non-924 term is 02-14-1994. By

subtracting 06-14-1993 from 02-14-1994, the concurrent

overlap is eight (8) months. Add the overlap of eight

(8) months, the first sentence term of 60 months, and

the 924 term of 60 months to establish the aggregate

term of 128 months, to commence on the DCB of the first

sentence (06-15-1988). (See Example No. 4)

Calculation for Example No. 4:

Step 1: Step 2:

First sentence: 60 months 1988-06-15

924 term: + 60 months + 10

Total term: 120 months 1998-06-14* (Raw EFT)

Step 3: Step 4:

1998-06-14 1988-06-15

- 7 + 5

1991-06-14 1993-06-14* (Raw EFT of

+ 1 First

1991-06-15 (DCB - earlier Sentence)

than 02-15-1992)

Step 5: Step 6:

1992-02-15 1999-02-14

+ 7 - 1993-06-14

1999-02-14* (Raw EFT of 5y 8m

Second

Sentence)

Step 7:

First sentence: 60 months

Concurrent Overlap: + 68 months ( 5 years 8 months)

Aggregate Term: 128 months (10 years 8 months)

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