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Seventh Circuit: Bureau of Prisons Improperly Prolonged Prisoner’s Sentence

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit took the federal Bureau of Prisons to task for using its statutory authority to improperly prolong a prisoner’s sentence. The opinion vacated a district court opinion denying the prisoner habeas corpus relief and remanded for further proceedings.

On February 8, 2008, Jermel Pope was arrested by Illinois state authorities and charged with pandering. While his case was pending, the U.S. Government charged him with federal pandering. Over a period of a year-and-a-half, Pope bounced back and forth between state and federal custody. On June 10, 2009, a federal court sentenced him to 100 months. On August 24, 2009, an Illinois court sentenced him to five years. Neither court specified whether the sentences were to run consecutive or concurrent to each other.

After spending a short period of time in an Illinois facility, Pope was inexplicably transferred to a federal correctional center for 268 days. He was then returned to state prison, where he served out the remainder of his Illinois time. Federal authorities picked him up on August 6, 2010, the day he was paroled from the state.

Despite the fact that the BOP had previously held Pope for 268 days, BOP officials calculated the start date of his federal sentence to be August 6, 2010. Pope filed an administrative remedy seeking a corrected start date, credit for pre-sentence time served, and a retroactive designation of Illinois state prison as the facility where he served his federal sentence. The BOP denied his requests, and Pope filed a habeas corpus petition in federal court.

It took the district court almost two years to review Pope’s petition. The lower court granted the petition in part, ordering the BOP to credit Pope 30 days. It denied the remaining claims, and Pope appealed.

The Seventh Circuit set a briefing schedule that culminated in oral arguments scheduled for November 29, 2017. Ironically (or maybe not), the BOP released Pope from custody on November 24, 2017. Three days later, the Government moved to dismiss Pope’s appeal as moot, because he was no longer in prison.

The appellate court wasn’t having it. The case was not moot, despite the BOP’s slick move, because Pope was still serving a term of supervised release. As long as he could obtain “any potential benefit” from a favorable decision, the controversy remained live. United States v. Trotter, 270 F.3d 1150 (7th Cir. 2001). Because a finding that he spent too long in prison would carry “great weight” in a § 3583(a) motion to reduce the supervised release term, a favorable decision could provide a benefit.

Turning to the merits of the case, the Court ruled that as a result of the BOP’s decisions, Pope did spend more time in prison than he should have. The BOP should have started his sentence on August 31, 2009, because that is when the federal government first exercised primary custody over him. The Court came to this conclusion, despite no clear evidence one way or the other, because that’s when Illinois transferred Pope to federal authorities and, for all intents and purposes, relinquished primary custody.

The Court rejected the Government’s disingenuous argument that Pope couldn’t have statutorily “commenced” his sentence on August 31, 2009, because the BOP did not designate him to a facility on that day. As a threshold matter, 18 U.S.C. § 3585(a) says nothing about designation to a facility; it simply says that “[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served.” Moreover, the Court said that under the Government’s faulty interpretation of § 3585(a), “an inmate could spend a lifetime in primary federal custody without commencing his sentence if the BOP simply refused to designate him to a facility.”

The Court also ruled that the BOP should have granted Pope’s request for a retroactive designation. It found that the BOP drew an impermissible inference from the federal sentencing judge’s silence as to whether his federal sentence should run concurrent or consecutive to his state sentence. This error was compounded because the Supreme Court has explicitly prohibited the BOP from drawing such an inference when the defendant was sentenced in federal court before state court, which was the case here. Setser v. United States, 566 U.S. 231 (2012).

The Court did not agree with Pope’s argument that he was entitled to credit for time served while he was in custody before his state sentence commenced. This was because the Illinois court already credited Pope for this time on his state sentence.

Accordingly, the Court denied the Government’s motion to dismiss Pope’s case as moot, vacated the district court’s denial of his habeas petition, and remanded to the sentencing court for further proceedings. See: Pope v. Perdue, 889 F.3d 410 (7th Cir. 2018). 

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