Opinion for the Court filed by Circuit Judge GINSBURG.
Dissenting opinion filed by Senior Circuit Judge BAZELON.
GINSBURG, Circuit Judge:
This case concerns the calculation of credit for presentence time spent in custody. Petitioning for a writ of habeas corpus, Roland Shelvy claimed that he should receive, in addition to the 233 days of credit allowed by the District of Columbia Department of Corrections, a further credit of approximately six months. The district court denied Shelvy's application; it held that the statute governing presentence credit, 18 U.S.C. § 3568, does not permit the relief Shelvy seeks.
First, we conclude that credit for presentence time spent in custody against one or more eventual sentences continues until a defendant commences service of a sentence; but once a defendant actually commences service of a sentence, presentence credit ceases. Upon the prisoner's reception at the institution for service of that sentence, or commitment to a place of detention to await transportation to the place at which the sentence shall be served, other pending charges do not extend the prisoner's eligibility for credit for time spent in custody prior to the imposition of a sentence. Second, we conclude that a second sentence ordered to run concurrently with a sentence earlier imposed runs with the remainder of the earlier sentence.
Shelvy was charged, held in presentence custody, and eventually sentenced in two separate proceedings. He was arrested on September 24, 1969, on charges of armed robbery, robbery, and two counts of assault with a dangerous weapon (case 1). He alleges that on the same day, he was also arrested and charged with murder (case 2).
In case 2, Shelvy entered a plea of guilty to second degree murder on October 13, 1970. On November 20, 1970, he was sentenced to the maximum term authorized for this offense, imprisonment for fifteen years to life.
Shelvy has received credit against both sentences for the period between September 24, 1969, the date of his arrest, and May 15, 1970, the date he was sentenced in case 1. Despite commencement of the case 1 sentence on the latter date, Shelvy claims he is entitled to presentence credit in case 2 for the period from May 15, 1970, until November 20, 1970, the date on which the case 2 sentence commenced. In effect, he urges that we hold both sentencing dates irrelevant, and direct that he receive credit against the longer sentence — the one in case 2 — for every day he has been incarcerated since his arrest on September 24, 1969.
The statute controlling credit for time spent in custody prior to the imposition of sentence provides, in relevant part:
18 U.S.C. § 3568 (emphasis added). The district court held that the underscored language foreclosed Shelvy's claim:
Shelvy v. Whitfield, No. 82-1555, slip op. at 2 (D.D.C. July 30, 1982).
We recognize the force of the district court's position. However, Shelvy's case has an anomalous aspect: If the two sentence dates had been interchanged — the case 2 (murder) sentence imposed on May 15, 1970, the case 1 (robbery) sentence on November 20, 1970 — it appears that Shelvy would have been entitled to the six months credit he seeks. He would have received credit for presentence custody up to May 15, 1970, and for service of the case 2 sentence thereafter. In this hypothetical situation, there would have been no need to answer the question whether credit should have accrued against the case 1 sentence during the period May 15, 1970, to November 20, 1970, for the absence of credit would have had no effect on the total period of incarceration; the case 1 sentence, six to eighteen years, even with no credit gained from May 15, 1970, to November 20, 1970, if ordered to run concurrently with the case 2 sentence, would have fit entirely within the latter, fifteen years to life, sentence.
Shelvy appeared pro se in the district court and on appeal. Because we believed he might have an arguable point, we invited
We are impelled to agree with the district court that Shelvy is not entitled to any additional "credit for time [he spent] in custody prior to the imposition of sentence." See 18 U.S.C. § 3568 (caption) (emphasis added). First, the section in question fixes the time when a sentence commences. Beyond debate, Shelvy commenced serving a sentence on May 15, 1970. Next, the section provides for presentence credit. Congress has consistently described this provision as aimed at credit for confinement before and during trial, and not at credit for any post-sentence custody. See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (amendments extending section 3568 to nonbailable offenses and lifting its limitation to statutes with minimum mandatory sentences were designed to "guarantee credit for pretrial custody"); H.R.Rep. No. 2058, 86th Cong., 2d Sess. 1 (1960) (purpose of amendment to section 3568 "is to make clear that the defendant receives credit for time spent in custody not only prior to trial but during the trial," and "also to exclude credit for time spent in custody after sentence, such as while on appeal"). Once a sentence is imposed and becomes operative for the period of time at issue, it is artificial to maintain that custody nonetheless retains its preconviction character, that it remains conditional, unsettled, still dependent upon (and therefore "in connection with") a trial court's eventual disposition of other charges not yet adjudicated.
Moreover, were we to read 18 U.S.C. § 3568 as authorizing presentence credit for time a prisoner serves after the imposition of a first sentence, we would alter the instruction a trial judge signals when he or she orders that the sentence imposed shall run concurrently with any sentence then "being served." For example, assume a trial judge imposed a one-year sentence on a defendant and ordered it to run concurrently with a one-year sentence then being served, eight months of which had elapsed. We have little doubt that the sentencing judge in such a case would envision a second sentence outlasting the first by eight months. Precedent in point confirms that a federal sentence made concurrent with a sentence already being served does not operate in a "fully concurrent" manner. Rather, the second sentence runs together with the remainder of the one then being served. See United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980); Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir.1972).
The brief for amicus curiae suggests that we could grant "meaningful credit against the total period of [Shelvy's] confinement," and preclude the order of the two sentences from affecting the total time he serves, by "interrupt[ing] the running of [the sentence in case 1]" and "making it commence six months later on November 20, 1970." Brief for Amicus Curiae at 20.
The concluding sentence of the section states:
Setting out the relevant legislative history, this court observed that Congress dominantly intended to provide "a firm date of sentence commencement." United States v. Liddy, 510 F.2d 669, 674 (D.C.Cir.1974) (en banc), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975). The court in Liddy recognized authority in the district court to interrupt a sentence once it has commenced and thereby postpone the termination date of the sentence "beyond the time the sentence would have ended had it not been interrupted." Id. We confront no such situation here. Neither district court order nor statute authorizes the interruption amicus suggests. We therefore have no warrant to treat the case 1 sentence as commencing six months after Shelvy was committed to a place of detention to await transportation to the penitentiary designated for service of that sentence.
Nor, in face of specific congressional instruction to the contrary, are we at liberty
Shelvy's case 2 sentence, as pronounced, runs concurrently with the case 1 sentence then being served. No statute authorizes us to amend that direction so that the sentence in case 2 not only runs concurrently with the remainder of the sentence in case 1, but is shortened by the time already elapsed on the prior sentence.
We conclude that Shelvy is entitled to presentence credit only for days of incarceration during which he was not serving any sentence. He has received full credit for those days. We can accord him no more without straining the meaning of 18 U.S.C. § 3568 and departing from judicial understanding and precedent on what a "sentence to run concurrently with an earlier sentence" means. Therefore, the judgment from which this appeal has been taken is
BAZELON, Senior Circuit Judge, dissenting:
The majority opinion rests on two conclusions: 1) that the imposition of the sentence in the first case was the sole basis for Shelvy's incarceration from May 15 to November 20, 1970, and 2) that a subsequent sentence ordered to run concurrently with an earlier sentence can only run with the unexpired portion of the earlier sentence. Because I believe that the first conclusion is incorrect and the second reaches an issue that was never addressed by the parties, I must dissent.
I. CREDIT UNDER 18 U.S.C. § 3568
The relevant statute awards credit for time spent in custody "in connection with the offense or acts for which sentence was imposed."
In most criminal cases that are appealed, however, the imposition of a sentence does not mandate immediate imprisonment. Convicted criminal defendants are ordinarily released on bond and their sentences are stayed pending resolution of their appeals.
Given that the second charge effectively precluded possible release on the first conviction, it is inescapable that, at the very least, Shelvy was held "in connection with" both the sentence and the second charge from May 15 to November 20, 1970. The government concedes that Shelvy was held from his arrest until the May 15 sentencing on both charges. It is similarly undisputed that Shelvy was held on both convictions after the November 20, 1970 sentencing. In view of the second charge's prevention of post-conviction release, I cannot agree that the imposition of the first sentence could make the second charge a nullity for six months, after which it could arise again to serve as a cause of confinement. Shelvy was held "in connection with" the second charge from his arrest until the second conviction. Under 18 U.S.C. § 3568, he should receive credit against the second sentence for this entire period.
Granting the credit requested would not require an alteration in the operation of the concurrent sentences. The statute directs the Attorney General to give a prisoner "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed."
II. OPERATION OF CONCURRENT SENTENCES
Having assumed that alteration of the concurrent sentences would be necessary, the majority grounds its holding on its construction
Neither Shelvy, in his pro se brief, nor the government, ever addressed this issue. Moreover, this panel, although specifying two other questions for briefing, never deemed it necessary to request that amicus address the issue of judicial power to affect the timing of concurrent sentences.
In Wilson, the defendant sought credit for 155 days actually served on a sentence imposed by the District Court for the District of Columbia against a longer sentence subsequently imposed by the District Court for the Southern District of New York and ordered to run concurrently with the District of Columbia sentence the defendant was then serving. Credit was denied on the ground that a sentence cannot commence prior to the date it was pronounced even if it is to be served concurrently with a sentence already being served. 468 F.2d at 584. As in the case before us, the defendant in Wilson was awarded credit against both sentences for the period he spent in federal custody (204 days) prior to the first, District of Columbia, sentence. Id. at 583.
O'Connor was arrested in case 1 in October, 1964. He made bail and was released. In January, 1965, he was arrested in case 2 and failed to make bail. He remained in custody until May, 1965, when case 2 was dropped. He was convicted in June and sentenced in July of 1965 in case 1. He applied for and was granted appeal bond of $2500 in case 1. On January 10, 1966, he posted the appeal bond and was released. Eleven days later, O'Connor was arrested yet again, in case 3. Bail was set at $3500; he was unable to post this sum and remained incarcerated. He was convicted and sentenced in case 3 on April 25, 1968. The sentence was ordered to run concurrently with the conviction in case 1 nearly three years earlier. O'Connor sought and was denied credit against sentence in case 3 for the time served after his rearrest and failure to post the higher bond in case 3.
Shelvy was arrested on the same day for the two crimes. That the longer sentence was imposed after the shorter sentence was a mere fortuity. O'Connor, however, was arrested for the crime for which he received a longer sentence over a year after the first arrest and six months after he received the first sentence. Indeed, the latter crime had not even been committed when the first sentence was imposed.
Shelvy, in addition, was never given an opportunity to post pre- or post-conviction bond; the second charge at all times kept him unconditionally incarcerated. O'Connor was granted and made bail both before and after his first conviction. Even after his arrest while free on appeal bond, O'Connor was granted bail in case 3. We do not know from the record whether appeal bond was revoked after the case 3 arrest. If it was revoked, then O'Connor's custody on the conviction was unconditional, while custody on the charge in case 3 was conditional. This is precisely the reverse of Shelvy's situation. If O'Connor's appeal bond was not revoked, then custody in both cases was conditional. For Shelvy, custody was at all times conditional in the first case and at all times unconditional in the second case.