INTERACTION OF FEDERAL AND STATE SENTENCES WHEN THE FEDERAL
DEFENDANT IS UNDER STATE PRIMARY JURISDICTION
HENRY J. SADOWSKI, REGIONAL COUNSEL,
NORTHEAST REGION, FEDERAL BUREAU OF PRISONS
215-521-7375
This memorandum details how the Federal Bureau of Prisons computes federal sentences imposed
when the defendant is under the primary custodial jurisdiction of state authorities. This is
probably the single most confusing and least understood federal sentencing issue. To place this
discussion into context, basic sentencing principles will be discussed and then applied to the state
and federal sentencing issue. The policy of the Bureau of Prisons concerning where the federal
sentence is served will also be addressed.
BASIC FEDERAL SENTENCE COMPUTATION DECISIONS
In any computation of a federal sentence, two separate decisions must be made: when the federal
sentence commences and to what extent the defendant can receive credit for time spent in custody
prior to commencement of sentence.1 For offenses committed prior to November 1, 1987, each
of these decisions is governed by repealed 18 U.S.C. § 3568. Section 3568 specifies that the
Attorney General is responsible for sentence computation decisions. For offenses committed on
or after November 1, 1987, commencement of federal sentence is governed by 18 U.S.C. §
3585(a), and prior custody credit is governed by 18 U.S.C. § 3585(b). The provisions of § 3585
were designed to maintain the same basic authority for sentence computation in the Attorney
General as under its predecessor. United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351 (1992).
Wilson held that, although new § 3585 omits the language of old § 3568 specifying that the
Attorney General is responsible for sentence computation, Congress did not intend to change this
well settled authority. Id. The authority of the Attorney General to compute sentences has been
delegated to the Federal Bureau of Prisons by 28 C.F.R. § 0.96 (2002). 2
COMMENCEMENT OF FEDERAL SENTENCE
The underlying principle of both repealed § 3568 and present § 3585(a) is that a federal sentence
commences when the defendant is received by the Attorney General of the United States for
service of his federal sentence.3 When a federal sentence is imposed on a defendant in state
custody, the federal sentence may commence when the Attorney General agrees to designate the

1

Chambers v. Holland, 920 F.Supp. 618, 621 (M.D.Pa.), aff’d, 100 F.3d 946 (3d Cir. 1996); United
States v. Smith, 812 F.Supp. 368, 370 (E.D.N.Y. 1993).
2

3

See United States v. Pineyro, 112 F.3d 43 (2d Cir. 1997).

Pinaud v. James, 851 F.2d 27 (2d Cir. 1988); Salley v. United States, 786 F.2d 546 (2d Cir. 1986);
Chambers v. Holland, 920 F.Supp. at 621.

state facility for service of the federal sentence. 4 The designation authority of the Attorney
General under repealed 18 U.S.C. § 4082 had been delegated to the Federal Bureau of Prisons. 28
C.F.R. § 0.96(c). Present 18 U.S.C. § 3621 explicitly vests the designation authority in the
Bureau of Prisons. The earliest date a federal sentence can commence is the date it is imposed.
Thus, a concurrent sentence commences on date of its imposition not on the date of
commencement of prior sentence, or some earlier date. 5 A sentence cannot be ordered to
commence at a date prior to its imposition.6
A federal sentence does not begin to run when a federal defendant is produced for prosecution by
a federal writ of habeas corpus ad prosequendum from state custody.7 The state authorities retain
primary jurisdiction over the prisoner; federal custody does not commence until the state
authorities relinquish the prisoner on satisfaction of the state obligation.8 The sovereign which
first arrested the offender has primary jurisdiction over the offender, unless that sovereign
relinquishes it to another sovereign by, for example, bail release, dismissal of the state charges,
parole release, or expiration of state sentence. 9 When a prisoner is borrowed from the primary
custodian via a writ of habeas corpus ad prosequendum, principles of comity require the return of
the prisoner to the primary custodian when the prosecution has been completed.10 This concept
4

Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2001), cert. denied, 123 S.Ct. 889 (2003); Romandine v.
United States, 206 F.3d 731 (7th Cir. 2000); Rogers v. United States, 180 F.3d 349 (1st 1999), cert. denied, 528
U.S. 1126 (2000); McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998); Barden v. Keohane, 921 F.2d 476 (3d Cir.
1990); United States v. Pungitore, 910 F.2d 1084, 1118-1119 (3d Cir. 1990), cert. denied, 111 S.Ct. 2009-2011
(1991).
5

Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C.Cir. 1983); United States v. Flores, 616 F.2d 840, 841 (5th
Cir. 1980).
6

United States v. Gonzalez, 192 F.3d 350 (2d Cir 1999); United States v. Labeille-Soto, 163 F.3d 93 (2d
Cir. 1998). But see United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 589 (7th Cir.
1980), cert. denied, 449 U.S. 1084 (1981) (implying in dicta sentencing judge could order prior commencement).
7

United States v. Cole, 416 F.3d 894 (8th Cir. 2005); United States v. Evans, 159 F.3d 908 (4th Cir.
1998); Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992); Thomas v. Brewer, 923 F.2d 1361 (9th Cir. 1991);
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990); Salley v. United States, supra; Hernandez v. United States
Attorney General, 689 F.2d 915 (10th Cir. 1982); Roche v. Sizer, 675 F.2d 507 (2d Cir. 1982); Chambers v.
Holland, 920 F.Supp. at 622.
8

Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2001); Jake v. Herschberger, 173 F.3d 1059 (7th Cir. 1999);
Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992); Thomas v. Whalen, 962 F.2d 358 (4th Cir. 1992);
Hernandez v. United States Attorney General, supra; Roche v. Sizer, supra; Crawford v. Jackson, 589 F.2d 693
(D.C.Cir. 1978), cert. denied, 441 U.S. 934 (1979); Cobb v. United States, 583 F.2d 695 (4th Cir. 1978); Chambers
v. Holland, supra; Shumate v. United States, 893 F.Supp. 137 (N.D.N.Y. 1995); Miller v. United States, 826
F.Supp. 636 (N.D.N.Y. 1993). See also Bowman v. United States, 672 F.2d 1145, 1153-154 (3d Cir. 1982).
9

United States v. Cole, 416 F.3d 894 (8th Cir. 2005); Rios v. Wiley, 201 F.3d at 274; Taylor v. Reno,
164 F.3d 440 (9th Cir. 1998); United States v. Warren, 610 F.2d 680 (9th Cir. 1980); Chambers v. Holland, 920
F.Supp. at 622; United States v. Smith, 812 F.Supp. 368 (E.D.N.Y. 1993).
10

Delima v. United States,41 F.Supp. 2d 359 (E.D.N.Y. 1999), aff’d, 213 F.3d 625 (2d Cir. 2000).

of primary jurisdiction controls many of the decisions in this area.
PRIOR CUSTODY TIME CREDIT
Under the old § 3568, a federal prisoner was not entitled to prior custody time credit towards a
federal sentence for the period spent in state custody especially when the state provided credit for
the same period towards a state sentence.11 Time in custody of the United States Marshal
pursuant to a federal writ of habeas corpus ad prosequendum from state custody is not federal
custody in connection with the federal offense. 12 For new law cases, the Supreme Court noted
that under new § 3585(b), "Congress made clear that a defendant could not receive double credit
for his detention time." United States v. Wilson, 112 S.Ct. at 1356. Under § 3585(b), prior
custody credit cannot be granted if the prisoner has received credit towards another sentence.13
There are some limited exceptions,14 but the general rule is no credit is afforded towards a federal
sentence if credit has been given for the same period of custody towards a state sentence.
CONCURRENT VERSUS CONSECUTIVE SERVICE OF FEDERAL SENTENCE WITH
STATE SENTENCE
As in the commencement decision, the order in which sentences are served is governed by the
concept of primary jurisdiction. If state and federal sentences are imposed on an offender, the
general rule is that the sentence imposed by the sovereign with primary jurisdiction is served first.
Generally, decisions concerning concurrent or consecutive service of a federal sentence with a
state sentence is not dependent on the order of sentence imposition. If the federal judgment and
commitment order is silent and if the state authorities have primary jurisdiction over the
defendant, the Bureau of Prisons applies a presumption that the federal sentence will run
consecutively with the state sentence regardless of which sentence was imposed first15. Under 18
U.S.C. § 3584, the federal sentencing judge may specifically order the federal sentence to run
consecutively with a state sentence.16 The Bureau of Prisons interprets § 3584 to also permit the

11

Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992); United States v. Blankenship, 733 F.2d
433 (6th Cir. 1984); United States v. Grimes, 641 F.2d 96 (3d Cir. 1981); Siegal v. United States, 436 F.2d 92, 95
(2d Cir. 1970).
12

E.g., Rios v. Wiley, 201 F.3d at 271-74; Thomas v. Whalen, supra; Chambers v. Holland, 920 F.Supp.
at 622; Miller v. United States, supra; United States v. Smith, 812 F.Supp. 368 (E.D.N.Y. 1993). But see Brown v.
Perrill, 28 F.3d 1073 (10th Cir. 1994).
13

14

Rios v. Wiley, 201 F.3d at 272; Tisdale v. Menifee, 166 F.Supp. 2d 789 (S.D.N.Y.2001)
See Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993).

15

This presumption is drawn from 18 U.S.C. § 3584(a) which generally requires consecutive service of
sentence imposed at different times unless the court specifies concurrent service.
16

United States v. Williams, 46 F.3d 57 (10th Cir. ), cert. denied, 116 S.Ct. 92 (1995); United States v.
Ballard, 6 F.3d 1502 (11th Cir. 1993); United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992); Pinaud v. James,
851 F.2d 27 (2d Cir. 1988); Salley v. United States, 786 F.2d 546 (2d Cir. 1986).

federal judge to order concurrent service with a state sentence. 17 There is a split in the circuits on
whether the federal judge can order concurrent or consecutive service with a state sentence yet to
be imposed. 18 At a minimum, the Bureau would consider any such order as a recommendation
from the federal sentencing court. To allow the federal sentence to commence, the Bureau of
Prisons designates the state correctional institution (the primary custodian) for service of the
federal sentence. Since the earliest date a federal sentence can commence is the date it is
imposed, this designation may be made nunc pro tunc no earlier than the date of federal
sentencing. A sentence may not be ordered to run concurrent with a sentence which has been
served.19
Under old law, 18 U.S.C. § 3568, when the state had primary jurisdiction, an order by the federal
sentencing judge to run the federal sentence concurrently with a state sentence (even one yet to be
imposed) was treated by the Bureau of Prisons as a recommendation since the federal sentencing
court had no power to order a federal sentence to run concurrently with a state sentence. 20 Since
the Bureau usually follows a concurrent recommendation from the sentencing judge, the issue of
the authority of a federal judge to order concurrent service is rarely tested. To give effect to the
federal sentence court's recommendation and allow the federal sentence to commence, the Bureau
designates the state facility for service of the federal sentence.21
PLACE OF INCARCERATION
The primary custodian is responsible for the custody of the defendant, until primary jurisdiction is
relinquished. If a defendant has been arrested by state authorities and the state never relinquished
custody (by bail, dismissal of charges, parole, etc.), the defendant must serve his state sentence in
state custody. Production of the defendant via a federal writ of habeas corpus ad prosequendum
does not shift the primary jurisdiction of custody to federal authorities. 22 After the writ is
satisfied, the United States Marshal must return the "loaned" defendant back to the state, the
primary custodian. Primary jurisdiction is not effected by the order of imposition of federal and
state sentence.

17

United States v. Fuentes, 107 F.3d 1515, 1519 n.6 (11th Cir. 1997).

18

Contrast United States v. Andrews, 330 F.3d 1305 (11th Cir. 2003); United States v. Mayotte, 249
F.3d 797 (8th Cir. 2001); United States v. Williams, supra; United States v. Ballard, supra; Salley v. United
States, supra; with Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72 (2d Cir. 2005); Romandine v. United States, 206
F.3d 731 (7th Cir. 2000); United States v. Quintero, 157 F.3d 1038 (6th Cir. 1998); McCarthy v. Doe, 146 F.3d
118 (2d Cir. 1998); United States v. Clayton, 927 F.2d 491 (9th Cir. 1991).
19

United States v. Labeille-Soto, supra.

20

Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990); United States v. Campisi, 622 F.2d 697 (3d Cir.
1980); Gomori v. Arnold, 533 F.2d 871 (3d Cir.), cert. denied, 429 U.S. 851 (1976); United States v. Huss, 520
F.2d 598 (2d Cir. 1975).
21

See footnote 4.

22

See footnote 11.

The jurisdiction who is the primary custodian is responsible for the costs of incarceration. When
the federal authorities are the primary custodian of the prisoner, the United States bears the costs
of incarceration. When the state authority is primary custodian, the state bears the costs of
incarceration. When the state has primary jurisdiction over a defendant, the federal sentencing
judge may not order the delivery of the defendant for service of sentence in a federal institution.
This order is tantamount to a transfer of custody beyond the jurisdiction of the federal court. 23
Similarly, when the state has primary jurisdiction, the state sentencing judge cannot order that the
state prisoner be transported to a federal institution to serve his state sentence.24 A state court has
no authority to order how a federal sentence is to be computed or served.25
There are several ways in which the Federal Bureau of Prisons may accept a prisoner in primary
state custody. First, under a contract pursuant to 18 U.S.C. § 5003, the state authority could
request transfer of the prisoner to the federal authorities with the understanding that the costs of
incarceration are reimbursed to the United States. The existence of a contract between the state
in question and the Bureau must be checked. Secondly, the United States Attorney's Office may
sponsor the placement of a state prisoner in the witness protection program under 18 U.S.C. §
3521. Finally, the Federal Bureau of Prisons will accept a state defendant when the state
authorities relinquish primary jurisdiction by parole, bail, dismissal, etc. The act relinquishing
primary jurisdiction usually requires the United States Marshal to assume custody pursuant to an
outstanding detainer. The Marshal then transfers the prisoner to a federal facility designated by
the Federal Bureau of Prisons. If the United States obtains a state inmate under the Interstate
Agreement of Detainers Act (instead of through a writ), the same concepts discussed herein
apply.

IMPACT OF SENTENCING GUIDELINE 5G1.3
At sentencing, it is important to determine to what extent U.S.S.G. § 5G1.3 applies to the
defendant. In certain circumstances, 5G1.3 permits the court to make an adjustment or a
downward departure for time spent in detention which would not be awarded towards the federal
sentence by the Bureau of Prisons under 18 U.S.C. § 3585(b). Section 5G1.3 has been modified
several times, so it is crucial to determine which version applies to the defendant.26 The present

23

United States v. Warren, 610 F.2d 680 (9th Cir. 1980); United States v. Smith, 812 F.Supp. 368
(E.D.N.Y. 1993).
24

Leal v. Tombone, 341 F.3d 427 (5th Cir. 2003); Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2001),
cert. denied, 123 S.Ct. 889 (2003); Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1992).
25

Leal v. Tombone, supra; Taylor v. Sawyer, supra; Jake v. Herschberger, 173 F.3d at 1065;United
States v. Yates, 58 F.3d 542, 550 (10th Cir. 1995); Pinaud v. James, 851 F.2d 27, 32 (2d Cir. 1988); United States
v. Sackinger, 704 F.2d 29, 32 (2d Cir. 1983).
26

There have been disagreements among circuits concerning different applications of § 5G1.3.
Research in the respective circuit case law is also crucial. Precise nuances of the Sentencing Guidelines are
beyond the intention and the scope of this memorandum. The section has included to alert the reader of this other

version of 5G1.3 permits an adjustment (non-departure) if the time in detention is related to the
federal offense (5G1.3(b)). If the court finds an adjustment is justified based on a discharged
sentence, the adjustment is to be via downward departure. If the federal sentencing judge invokes
5G1.3, it is crucial for the Judgment and Commitment order to delineate exactly how the court
determined the sentence. For example, if the court applied an adjustment, a reference to
5G1.3(b) and the amount of adjustment should be noted on the Judgment and Commitment order.
This reference assists the Bureau in resolving issues concerning the court’s intent, which issues
often arise years after the sentence was imposed. It is important to note the Bureau of Prisons
will apply the prior custody credit standards of 18 U.S.C. § 3585(b) to every federal sentence.
Any reference in the Judgment and Commitment order to credit for time served is unnecessary
and superfluous.
The Bureau has recently centralized its sentence computation and designation functions to the
Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas. In addition to
contacting the author, sentence computation questions can also be directed to Sonya Cole,
Assistant General Counsel, at the DSCC at (972)352-4425.
October 11, 2006

area of sentencing law which may be impacted when a defendant is subject to state and federal prosecutions.