*2 do not extend pending charges other SCALIA, Before Circuit GINSBURG time for credit prisoner’s eligibility BAZELON, Circuit Judges, and Senior of a spent custody prior Judge. Second, we conclude sentence ordered to run second Opinion by for the Court filed Circuit runs with a sentence earlier Judge GINSBURG. remainder of the earlier sentence. Dissenting opinion filed Senior Circuit Judge BAZELON. I.
GINSBURG, Judge: presentence held in charged, Shelvy case concerns the calculation of This two eventually sentenced custody, time in custo credit for on He was arrested separate рroceedings. Petitioning corpus, for a writ of habeas dy. armed charges on September re Roland claimed that he should of assault and two counts robbery, robbery, ceive, in to the 233 addition He (case 1). dangerous weapon with a Depart allowed the District of Columbia he was also day, that on the same alleges Corrections, ment of a further credit' of (case 2).2 with murder charged arrested and approximately six months. The district his incarcerated since Shelvy has remained application; court denied it held governing presentence the statute arrest. prison Respondents indi- Citing Rodriguez, records 2. stated that Preiser v. 31, 1969, 1827, 1834-35, as the date of cated October 36 L.Ed.2d charge. The dis- on the murder commitment (1973), although noted that district court assumed, ruling purposes on trict court granting Shelvy’s application would not result Shelvy’s petition, in both that commitments confinement, in his release from immediate September occurred on cases corpus petition habeas to be an availa- Whitfield, 82-1555, slip op. at 1 requested ble means to seek the relief. 30, 1982). (D.D.C. July make the same n. assumption. March jury Case 1 was tried before a connection with offense or imposed.... was found on three acts for sentence was guilty 15,1970, counts. he was sentenced On years for six to imprisonment eighteen prescribe any No sentence shall other robbery, for armed and two to six computing the term. method each of counts. *3 the assault These sentences added). 18 3568 The (emphasis U.S.C. § concurrently. were ordered to run district court held that the underscored lan- guage foreclosed claim: 2, Shelvy plea guilty
In case entered a on, the 13, May 15[, 1970,] petitioner to second murder degree on October [F]rom to his sentence 20, 1970, pursuant was incarcerated 1970. On sen- November he was 1; so, being in case this was not tenced to the term for [he] maximum authorized spending custody in “in con- offense, this years imprisonment [that time] fifteen and, with nection the offense in to judge [case 2]” life.3 The district ordered the hence, he is not credit for entitled to this any sentence to run sen- concurrently time served. tence then being served. Whitfield, 82-1555, Shelvy slip op. Shelvy has both against received credit 30, (D.D.C. July 1982). рeriod Septem-
sentences for the between recognize the of the district force 24,1969, arrest, ber May the date his However, court’s position. Shelvy’s case 15, 1970, the he was in date sentenced case has aspect: an anomalous If two sen- 1. Despite commencement of case 1 tence had interchanged dates been date, sentence on the latter Shelvy claims —the (murder) imposed case 2 on May sentence he is entitled to presentence credit in case 15, 1970, (robbery) the case 1 sentence оn period May from until November 1970—it 20, 1970, November the date on would been the six have entitled to months effect, case 2 sentence commenced. he credit have he seeks. He would received urges that we hold both dates presentence custody up credit for to May irrelevant, and direct he receive credit 15, 1970, and for the case 2 service of sen- against one longer sentence —the tence hypothetical thereafter. In this situ- case 2—for he every day has been incarcer- ation, there would have no need been to ated since his arrest on September question answer the whether credit should against accrued the case II. during period May to Novem- The controlling statute 20,1970, credit for time ber for the of credit absence would spent in to the custody prior period have had no effect on total incarceration; sentence, provides, relevant part: case 1 six to eighteen years, gained credit even with no of imprisonment 15,1970, 20,1970, from to if November
person
of an
convicted
offense shall com-
run
with the
orderеd to
mence to run from the date on which
sentence,
within
entirely
would have fit
such person is received at
penitentia-
latter,
life,
years
fifteen
to
sentence.
ry,
reformatory,
jail for
of such
service
Attorney
General shall
in the
Shelvy appeared pro se
district
give any
person
such
ser-
toward
court
we
appeal.
Because
believed
vice of his sentence for any days spent in
we
might
arguable
have an
invited
point,
degree,
3. Murder in
the second
defined
D.C.
term was
life.
Had the
22-2403,
punishable by imprison-
Code
judge
lightest
§
trial
sеntenced
i.e.,
years.”
ment “for life
permissible
or not less than 20
D.C.
tence
under §
However,
Code
years,
eligible
§
22-2404.
24-
him
D.C.Code
24-203 would have made
Frady
Act, provides
parole
years.
the Indeterminate Sentence
v. United
in 6%
Prisons,
imprisonment
that a maximum sentence of life
States Bureau
1028-
accompanied by
(D.C.Cir.1978)
H.R.Rep.
must be
(quoting
a minimum sentence
years imprisonment.
not
(1961)).
exceed 15
Thus
87th
1st Sess. 2
trial,”
and “also to exclude
during
to assist the
but
Defender Service
the Public
brief,
amicus curiae.
after sen-
submitting
court
credit for time
out that because
cogently pоints
tence,
appeal”).
That brief
while on
Once a
such as
1 is
sub-
totally
in case
Shelvy’s sentence
operative
sentence is
and becomes
considerably longer,
sumed within
issue,
time at
it is artificial
period
for the
in case
running sentence
currently
nonetheless re-
maintain that
practical
for all
against
character,
re-
that it
preconviction
tains its
Credit
purposes,
meaningless.
conditional, unsettled,
dependent
still
mains
cannot shorten the time
that sentence alone
with”)
“in connection
upon (and therefore
sрend
prison.
will
disposition
eventual
of other
trial court’s
adjudicated.4
charges
yet
III.
Moreover, were we to read 18 U.S.C.
with the district
impelled
agree
We are
credit for
authorizing presentence
as
*4
any
court
that
is not entitled to
imposition
serves after the
prisoner
time a
spent]
additional “credit for time [he
sentence,
alter the in-
of a
we would
of sentence.”
custody prior
imposition
to
when he or
judge signals
struction a trial
(emphasis
18
(caption)
See
3568
imposed shall
she orders that
the sentence
added). First,
question
the section in
fixes
then
any
run
with
sentence
Be-
time when a sentence commences.
a
example,
served.” For
assume
“being
debate,
yond
serving
commenced
a
a
sentence on
judge imposed
one-year
trial
15,
Next,
sentence
the sec-
on
it to run concur-
a defendant and ordered
tion provides
presentence
for
credit. Con-
then
one-year
being
with a
sentence
rently
gress
consistently
provi-
has
described this
served,
elapsed.
months of which had
eight
sion as aimed at credit for confinement
have little doubt that
We
trial,
before
during
and not at credit
in such a case would envision a
judge
for any post-sentence custody.
S.Rep.
See
by eight
the first
outlasting
second sentence
750,
No.
Cong.,
(1965)
89th
1st
21
Sess.
confirms that a
point
months. Precedent
(amendments extending section 3568 to
federal sentence made
concurrent
lifting
nonbailable offenses and
its limita-
op-
not
already being
served does
tion to
mandatory
statutes with minimum
manner.
“fully
erate
in a
concurrent”
sentences
designed
“guarantee[]
were
to
Rather,
together
the second sentence runs
pretrial
for
custody”); H.R.Rep.
(1960)
being
86th
with the remainder of the one then
(purpose
2d Sess. 1
Flores,
of
v.
616
amendment to section 3568 “is to make
served.
United States
See
clear that the
Hen-
(5th Cir.1980);
defendant receives credit for
F.2d
841
Wilson v.
spent
derson,
time
in custody
only prior
(5th Cir.1972).5
to trial
F.2d
Flores,
position
sentenced,
presentence
4. The
credit does not
defendant
after
In
spent serving
conviction,
include time
years
drug
another sentence is
on
to ten
on one
offense
announced in instructions
12,1976, and,
administrative
February
guilty,
plea
after a
jail-time
detеrminations
credit under 18
drug
another
offense on December
ten
“
see United States
Department
U.S.C.
Justice,
13, 1976, the latter sentence
‘to run concur-
System Program
Federal Prison
State-
rently
imposed
the first
with the sentence
[in
”
5880.24,
para. 5.b.(2)
1979),
(Sept.
ment No.
sought, unsuc-
actually [its] commence[d] 2; H.R.Rep. is entitled supra, S.Rep. No. conclude We Moreover, if we were incar even only at 2. supra, to serving embodied Congress he was during the concern ignore to ceration full juggling He has received “prevent sentence. in 18 U.S.C. § him no more can accord id., the no- sentences,” days. and entertain for those with meaning of 18 U.S.C. straining the dis- without sentencing judge has “a tion that under judicial from departing 3568 and is to be that a sentence provide cretion a “sen what standing precedent another sen- with retroactively concurrent an earlier concurrently with to run tence served,” it is been already has tence which Thereforе, judgment means. sentence” was made in such order that “no evident taken has been appeal which this from ex rel. Del United States this case.” See Prisons, Bureau v. United States Genio Affirmed. cert, Cir.1980), de- (7th nied, 449 dissent- BAZELON, Judge, Senior ar- (1981) (rejecting petitioner’s L.Ed.2d 808 ing: sentence, a later ordered
gument on two conclu- rests majority opinion one, should with an earlier concurrently run of the sentence 1) that the sions: having as commenced be treated was the sole basis in the first case imposed). the date it was to No- May 15 incarceration from subsequent 2) that a vember pronounced, as Shelvy’s case concurrently to run sentence ordered with the case 1 sentence concurrently runs with the can run only an earlier sentence statute authorizes being then served. No of the earlier unexpired portion direction so that the us to amend that conclusion is that the first Because I believe runs only tence in case 2 not *6 issue an the second reaches incorrect and in case the remainder of the sentence I parties, the never addressed that was already is shortened the time but must dissent. The on sentence.8 anoma- elapsed the would have been entitled ly Shelvy 18 U.S.C. § I. Credit Under earlier consideration for release six months charge case 2 for had he been sentenced on the credit statute awards The relevant sug- curious than the one connection with custody first is no more “in time was had sentence gested by respondents:9 Shelvy been or acts for which the offense on both 2 the after arrested charged day imposition Shelvy in case was imposed.”1 undisputed It is pre- day. in case none of his on the same charges of the sentence the first sen- imposition sentence detention would have served that before the incarceration; “in connection tence, being held Shelvy he was period reduce the of his charges.2 majority The criminal received effective credit with” both would not have against credited “judicial power,” have been see dissent The would doubt 10. 8. No pa- Shelvy eligible for render would have existed to in case but there the sentence sentencing judge against in case presentence role earlier. The at all no credit been degree second could have shortened considerably longer in case 2. Instead, supra murder sentence. note 3. contemporaneous interpretation of 18 in face of U.S.C. supra note see and extant U.S.C. procedures computing jail- for administrative against Indeed, granted Shelvy was credit, Shelvy time he sentenced to the statuto- period his ar- between both sentences for ry maximum. opinion Majority the first sentence. rest and (Maj. op.) at 443. Respondent-Appellees 9. Brief for at 6. both the sentence and the however, imposition holds, charge that between the second sentences, the first of the first and second May from 15 November was the sole effective cause of government concedes that Shelvy was held continued In the incarceration. from until the his arrest view, majority charge the second became on both charges. It similarly undisputed irrelevant; “in his was connec- only was held on both convictions Shelvy sentence, and not tion with” the criminal sentencing. after November charge.3 with” the pending “in connection second charge’s prevention In view of the release, I post-conviction agree cannot appealed, criminal In most cases that are however, the of the first sentence could imposition of a sentence does not mandate immediate imprisonment. charge make the for six nullity second Convicted criminal defendants ordinari- months, are which it could arise again after ly released bond and their sentences are cause of Shelvy serve as a confinement. pending stayed appeals.4 resolution of their was connection with” held “in the second pursue did Shelvy appeal. Shelvy an Had his arrest until the charge from second bail, granted been and been he able to make viction. Under 18 should have would been free for months at the six against receive credit the second sentence in this issue case. But bail not even a was period. this entire possibility Shelvy. majority As cor- the credit Granting requested would not points out, rectly “while was held in require an alteration in the operation of a money lieu of bond in case armed concurrent sentences. The statute directs robbery case, he was held without bond in Attorney give General to prisoner 2, the murder case.”5 Just as the “credit toward service of his second, charge nonbailable re- foreclosed any days spent custody in connection the first charge prior to the first lease with the offense acts for which sentence conviction, so charge too the fore- second imposed.”6 was Since “in Shelvy was held closed release after the first conviction. connection with” secоnd as well charge, situations, both charge fully second as the first he is to an entitled sufficient to Shelvy; hold was not the first administrative the second either before or after conviction. awarding this credit conviction; could been released on the require post-dating would not the first he could not have been freed on the second back-dating tence or the second. It would charge. It therefore is for the illogical merely Attorney General to cred- oblige majority to conclude that was in it an six months of additional “in only connectiоn with” custody against second sentence. charge and not “in with” the connection second. *7 Operation II. of Concurrent Sentences
Given that
the second charge effectively
precluded possible
Having
release
assumed that alteration of the
on the
con-
viction, it is inescapable that,
the very
necessary,
at
concurrent sentences would be
least, Shelvy was held “in
with”
grounds
holding
connection
the
its
majority
its
maj. op.
3. See
1956);
(re-
at
also (1976)
444.
see
U.S.C.
appeal
pending
lease
should be
re-
treated as
4. See
3A Wright,
C.
Federal
and Proce-
Practice
lеase
to conviction unless it
(1982);
Harris v. United
at
dure
(1) appeal
dilatory;
(2)
is frivolous or
there is
States,
1232, 1232,
10, 12,
404 reason
that conditions of
will
to believe
release
(Douglas,
Justice,
1971)
L.Ed.2d
Circuit
prevent absconding;
(3)
not
there is reason
(post-conviction
may
“only
bail
be denied
poses
danger
believe the convicted defendant
strongest
(quoting
Seilers v.
the
of reasons”
community).
States,
United
89 S.Ct.
mental seem essen- disposition
tial to a considered of this case.
Mary TIERNEY, al., Appellants, Alma et
v. SCHWEIKER, Secretary
Richard S.
Health and Human Services. TRAHAN, al., Appellants,
Ava P. et REGAN, Secretary
Donald T. of the
Treasury, et al.
Nos. 82-2449.
United States Court of Appeals,
District of Columbia Circuit.
Argued April
Decided Sept. cases, Flores cites to Wilson and Wilson son сourt said it could not do: make a sentence reprints simply asserting district court order retroactive. I.do not claim that sentence cannot holdings “[a] commence support prop- in these cases fail to pronounced the date it is even they if it is to be ositions for which are invoked already being concurrent to a majority. clear, however, abundantly served.” It is (5th Cir.1972). they clarity, consistency, Del persuasive Genio lack the requested, asserts, dicta, denied the relief reasoning necessary but acceptance to warrant that a court could do what the Wil- this circuit.