SDNY Judge Pre-Empts BOP on Issue of Credit for Time Served Prior to Commencement of Sentence

The interaction of prison time served while simultaneously facing state and federal charges, as discussed here previously, is a very tricky subject, with potentially serious consequences for an individual defendant. Take Hasan Mitchell in the case of United States v. Mitchell, 07 CR 0006 (PAC), 2008 WL 686620 (S.D.N.Y. March 7, 2008), arrested by state authorities on gun and shooting charges but writted a few weeks later into federal custody, to face the charge of felon in possession of a firearm. 

At sentencing following Mitchell's guilty plea on the federal charge, the court indicated an intention to impose a sentence of 96 months to run from the date Mitchell was writted into federal custody, but sought briefing on how that desired objective would be achieved. The problem is that while Mitchell spent 15 months in a federal prison prior to the sentencing on the federal conviction, the law deems him to have been in state custody during this time, since he was arrested first by state authorities and the state charges had not yet been dismissed.

The government claimed that since the state gun charges would "probably be dismissed in light of defendant's federal conviction," the BOP would automatically credit the fifteen months Mitchell had spent in federal prison to his federal sentence under 18 U.S.C. § 3585(b) (the statute  governing how time spent prior to date of the sentence will be credited).  Were the sentencing court to adjust the 96-month sentence to reflect that fifteen months would, the government argued, "result in a windfall to the defendant."

Holding that "[i]n serving a sentence of 96 months, however, it is not a windfall to know when it begins and when it ends," the court rejected the government's sanguinity, and decided to adjust the sentence himself rather than subject the defendant to the "vagaries" of what the state prosecuting authorities may do, and how the BOP might assess the state actions.  The court therefore imposed a sentence of 81 months, expressly noting that no further credits should be given for pre-sentence time served.