Anthony Ruggiano, Jr. v. R. M. REISH, Warden On Appeal From the United States District Court For the Middle…

PRECEDENTIAL
Filed September 19, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3703
ANTHONY RUGGIANO, JR., Appellant
v.
R. M. REISH, Warden
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 01-cv-00512)
District Judge: Honorable A. Richard Caputo
Argued: May 21, 2002
Before: BECKER, Chief Judge, GREENBERG,
Circuit Judge, and BARZILAY, Judge,
U.S. Court of International Trade.*
(Filed September 19, 2002)
LINDA S. SHEFFIELD, ESQUIRE
(ARGUED)
2026 North Decatur Road, NE
Atlanta, GA 30307
Counsel for Appellant
_________________________________________________________________
* Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
MARTIN C. CARLSON, ESQUIRE
United States Attorney
THEODORE B. SMITH, III, ESQUIRE
(ARGUED)
Assistant United States Attorney
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
BECKER, Chief Judge:
This habeas appeal requires us to determine whether the
Bureau of Prisons ("BOP") of the United States Department
of Justice has accurately computed the amount of time
petitioner Anthony Ruggiano, Jr. must serve on his federal

-- 1 of 19 --

sentence. In early 1998, Ruggiano was sentenced to 112
months in federal prison by the United States District
Court for the Southern District of Florida (Roettger, J.) ("the
sentencing court") after he pleaded guilty to federal charges
of racketeering. At the time, Ruggiano was still serving a 2-
4-year sentence on an unrelated state (New York) conviction
for gambling. This appeal turns on whether (and to what
extent) the sentencing court intended Ruggiano’s federal
sentence to run concurrently with his state sentence, as a
court is permitted to in certain instances under federal law
and the Sentencing Guidelines. See 18 U.S.C.S 3584;
U.S.S.G. S 5G1.3.
At the sentencing proceeding, Judge Roettger orally
declared that he thought it appropriate "to go ahead and
recommend that [Ruggiano’s state sentence] be served
concurrently and that he receive credit for the amount of
time that he served there." [A43.] Then, in his written
judgment, he recited that Ruggiano’s sentence was"to run
concurrent with State sentence. Defendant to receive credit
for time served." [A47.] As will appear, fourteen months
served on the state sentence is the time at issue. The BOP
interpreted the court’s statements granting the defendant
2
"credit for time served" on his state sentence as merely a
nonbinding recommendation which the BOP was at liberty
to -- and did in fact -- ignore. The BOP, therefore,
computed Ruggiano’s 112-month federal sentence without
any reduction for the time served on his state sentence.
Ruggiano filed a petition for a writ of habeas corpus in
the United States District Court for the Middle District of
Pennsylvania to challenge this determination but the Court
denied relief, agreeing with the BOP that even if the
sentencing court intended for its recommendation to be
binding upon the BOP, that court had no authority under
the relevant statutes or under the Sentencing Guidelines to
credit Ruggiano for time served on his state conviction. We
disagree. First, we conclude that the sentencing court did
have authority under U.S.S.G. S 5G1.3 to adjust Ruggiano’s
sentence for time served on his state sentence in a way that
is binding on the BOP. Second, we conclude that although
the BOP does have exclusive authority to grant prisoners
"credit" as that term is used in 18 U.S.C.S 3585(b), the
type of "credit" granted to Ruggiano here was of a
fundamentally different character, and was well within the
authority of the sentencing court.
Third, we believe that the sentencing judge’s oral and
written remarks indicate that he intended to exercise his
authority to adjust Ruggiano’s sentence to account for the
time served on the state sentence. The judge’s oral
statement that he would "go ahead and recommend" such
an adjustment was not merely precatory, as the BOP
submits. Rather, by saying that he would "go ahead and
recommend," the sentencing judge stated orally what it was
that he intended to do in his final sentence, and, as

-- 2 of 19 --

evidenced by the subsequent written judgment, he did
exactly what he said he would: grant the defendant"credit
for time served" on his state sentence.
Finally, we are unpersuaded by the BOP’s contention that
the sentencing judge’s actions violated the legal precedents
of the jurisdiction in which he sat -- that of the United
States Court of Appeals for the Eleventh Circuit, or that
such a putative violation would change the result.
Accordingly, we will reverse the judgment and remand the
case to the District Court with instructions to grant
3
Ruggiano’s petition for a writ of habeas corpus and to direct
the BOP to credit him with the fourteen months served on
his state sentence before entering federal custody.
I. Facts and Procedural History
On November 7, 1996 Ruggiano was sentenced by the
state of New York to imprisonment for two to four years for
the crime of promoting illegal gambling. Just over a month
later, on December 16, 1996, Ruggiano was indicted by a
federal grand jury in the United States District Court for
the Southern District of Florida for unrelated racketeering
offenses. In January 1997, federal authorities took
Ruggiano out of state custody in New York and placed him
in federal custody pursuant to a writ of habeas corpus ad
prosequendum.1 On August 22, 1997, Ruggiano pled guilty
before the Florida District Court to conspiracy to engage in
racketeering in violation of 18 U.S.C. S 1962(d). As part of
the plea agreement, Ruggiano expressly reserved the right
"to have the instant sentence run concurrent with the state
sentence which the defendant is presently serving." Plea
Agreement at 3, P 7. [A34.]
During the sentencing hearing on January 14, 1998,
Ruggiano’s attorney stated the following to the court:
Another housekeeping matter, your Honor, is he is
presently serving a state sentence in New York. And
part of our plea agreement is a paragraph that says the
government will not oppose us seeking leave of the
Court to sentence him concurrently with his state
sentence.
_________________________________________________________________
1. A prisoner detained pursuant to a writ ad prosequendum is considered
to remain in the primary custody of the first jurisdiction unless and until
the first sovereign relinquishes jurisdiction over the person. The receiving
sovereign -- in this case, the federal government-- is, therefore,
considered simply to be "borrowing" the prisoner from the sending
sovereign for the purposes of indicting, arraigning, trying, and
sentencing him. See Jake v. Herschberger, 173 F.3d 1059, 1061 n.1 (7th
Cir. 1999). For the purposes of computing Ruggiano’s sentence,
therefore, the time spent in federal custody pursuant to a writ ad
prosequendum is credited toward his state sentence, not his federal
sentence.

-- 3 of 19 --

4
And I talked about that before the sentencing today
with Mr. Berg from the probation department. And
under 5G [of the Sentencing Guidelines] you do have
the authority to do that, your Honor. You can sentence
Mr. Ruggiano concurrently with the state sentence.
He is going to serve a long sentence, we know that,
probably longer than any other defendant or as long as
any of the defendants that you are going to sentence.
And he wasn’t at the top [of the racketeering scheme.]
He was somewhere in the middle. And that is reflected
by where they found his role in the offense.
And because of that I would ask that you consider
sentencing him concurrently with the case in New York
and that you also consider giving him the low end.
[A39-40.]
The court did not immediately respond, and shortly
thereafter declared merely that Ruggiano would be
sentenced to 112 months in prison to be followed by a 3-
year supervised release. After the court finished reciting
Ruggiano’s sentence, it asked counsel if either had
objection, to which Ruggiano’s attorney responded by
reminding the court of Ruggiano’s request that the court
"consider ruling that this [the federal] sentence be
concurrent with the state sentence under 5 G and--"
The court interrupted Ruggiano’s counsel and stated:
It doesn’t sound as if he has much time to go on the
state sentence. But I think it makes sense to go ahead
and recommend that it be served concurrently and that
he receive credit for the amount of time he has served
there.
[A43.]
In its written judgment issued that same day, the court
restated Ruggiano’s sentence:
The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned
for a term of 112 months. Sentence imposed to run
concurrent with State sentence. Defendant to receive
credit for time served.
5
[A47.] Neither party appealed the sentencing order to the
Court of Appeals for the Eleventh Circuit.
On January 30, 1998, the federal authorities returned

-- 4 of 19 --

Ruggiano to New York state custody where he proceeded to
serve the remainder of his state sentence. On November 15,
1998, Ruggiano was paroled to federal custody and he has
remained in federal custody at the Federal Correctional
Institution in Schuykill, Pennsylvania (FCI-Schuykill) since
then.
Upon entering federal custody, the BOP, pursuant to its
statutory duty, calculated the beginning and end dates of
Ruggiano’s sentence. See 18 U.S.C. S 3621(a) ("A person
who has been sentenced to a term of imprisonment . ..
shall be committed to the custody of the Bureau of Prisons
until the expiration of the term imposed."). In doing so, the
BOP did not credit Ruggiano for the time between 11/7/96
and 1/97, during which he was serving his state sentence
in a New York prison. Neither did the BOP credit Ruggiano
for the time between 1/1/97 and 1/14/98 during which he
was still serving his state sentence but was being
"borrowed" by the federal authorities pursuant to a writ of
habeas corpus ad prosequendum. See supra note 1.
Because these 14 months were not spent in custody in
fulfillment of Ruggiano’s federal sentence, but rather
constituted time spent in custody in fulfillment of his state
sentence, the BOP was not required to credit Ruggiano this
time under S 3585(b), which mandates that the BOP
"credit" toward the defendant’s sentence "any time he has
spent in official custody prior to the date the sentence
commences . . . as a result of the offense for which the
sentence was imposed" -- i.e., the time a defendant spends
in prison between arrest and sentencing. See Rios v. Wiley,
201 F.3d 257, 272-73 (3d Cir. 2000) (concluding that credit
is not allowed under S 3585(b) for time served that has
already been credited against defendant’s state sentence).
Ruggiano, however, contends that the sentence entered
by the Florida sentencing court already gave him credit for
the 14 months served on his state conviction (from
11/7/96 to 1/14/98). In other words, Ruggiano avers that,
in view of Judge Roettger’s declaration of a sentencing order
with credit, he was sentenced to 112 months minus the
6
time served on the state conviction (14 months), and it was
from this base (98 months) that the BOP should have
calculated the point at which his sentence would be
satisfied. Ruggiano, in essence, accuses the BOP of simply
failing to follow the sentencing court’s order. Accordingly,
he sought relief through the BOP’s administrative channels.
After exhausting the BOP’s remedial avenues without
success, Ruggiano sought relief pursuant to a writ of
habeas corpus, 28 U.S.C. S 2241, filed against petitioner
R.M. Reish, the warden of FCI-Schuykill, in the United
States District Court for the Middle District of
Pennsylvania. The District Court denied his petition, and
Ruggiano now appeals.2
We have jurisdiction pursuant to 28 U.S.C. SS 1291 and
2253(a). In reviewing a federal habeas judgment,"we

-- 5 of 19 --

exercise plenary review over the district court’s legal
conclusions and apply a clearly erroneous standard to its
findings of fact." Rios, 201 F.3d at 262. Although the issue
to be discussed, infra, i.e., exactly what the sentencing
judge intended in issuing his sentencing order, contains
some elements of a factual nature, we have previously
described this type of inquiry as "essentially legal in
nature," and we therefore exercise plenary review over the
District Court’s conclusions regarding this matter. Id.
II. Sentencing Court’s Authority to Adjust for
Time Served on State Conviction Under
U.S.S.G. S 5G1.3(c)
As a threshold matter, the BOP contends that,
irrespective of what the sentencing court actually did or
intended, it had no authority under the Sentencing
Guidelines -- specifically, under U.S.S.G. S 5G1.3, entitled
"Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment" -- to grant Ruggiano
credit for time served on his state conviction. In particular,
_________________________________________________________________
2. Although the named respondent in this matter is Reish, the parties
refer throughout their submissions to the appellee as the Bureau of
Prisons (BOP) because the appeal involves a sentencing calculation
matter. For ease of reference, we too have adopted that designation of
the appellee.
7
the BOP argues that the 1995 amendments to S 5G1.3,
which were applicable at Ruggiano’s sentencing, specifically
prohibit a sentencing judge from adjusting a defendant’s
sentence to give credit for time served on an unrelated
offense.
Federal law -- specifically, 18 U.S.C. S 35843 -- and
section 5G1.3 of the Sentencing Guidelines allow a
sentencing court to award a concurrent sentence to a
defendant that is subject to an undischarged term of
imprisonment. Together, these provisions "attempt[ ] to
achieve some coordination of sentences imposed in"
situations in which multiple crimes have not been jointly
prosecuted (because, for instance, they were committed in
different jurisdictions) or in instances in which the
prosecution of one offense is subsequent to a defendant’s
imprisonment for another offense so as "to mitigate the
possibility that the fortuity of two separate prosecutions will
grossly increase a defendant’s sentence." Witte v. United
States, 515 U.S. 389, 404-05 (1995). In such situations,
S 5G1.3, which constrains a sentencing court’s discretion to
adjust a sentence under S 3584, is intended to coordinate
the sentencing process "with an eye toward having such
punishments approximate the total penalty that would have
been imposed had the sentences for the different offenses
_________________________________________________________________
3. Subsection (a) of 18 U.S.C. S 3584 states:

-- 6 of 19 --

If multiple terms of imprisonment are imposed on a defendant at the
same time, or if a term of imprisonment is imposed on a defendant
who is already subject to an undischarged term of imprisonment,
the terms may run concurrently or consecutively . . . . Multiple
terms of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.
Subsection (b) continues:
The court, in determining whether the terms imposed are to be
ordered to run concurrently or consecutively, shall consider, as to
each offense for which a term of imprisonment is being imposed, the
factors set forth in section 3553(a).
18 U.S.C. S 3553(a), in turn, lists a number of factors -- such as "the
nature and circumstances of the offense," "the history and
characteristics of the defendant," and "the need for the sentence
imposed" -- to be considered by the sentencing court.
8
been imposed at the same time (i.e., had all of the offenses
been prosecuted in a single proceeding)." Id. at 404-05.
The text of section 5G1.3 of the Guidelines consists of
three subsections, which we rescribe here:
(a) If the instant offense was committed while the
defendant was serving a term of imprisonment
(including work release, furlough, or escape status) or
after sentencing for, but before commencing service of,
such term of imprisonment, the sentence for the
instant offense shall be imposed to run consecutively
to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the
undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account in
the determination of the offense level for the instant
offense, the sentence for the instant offense shall be
imposed to run concurrently to the undischarged term
of imprisonment.
(c) (Policy Statement) In any other case, the sentence
for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant
offense.
Subsection (a) of S 5G1.3 applies when the new offense
was committed while the defendant was serving a term of
imprisonment, and mandates that any new period of
imprisonment be consecutive to the previous one.
Subsection (b) applies when the instant offense and the
offense for which the undischarged term were imposed
relate to the same crime, and requires that the new
sentence run "concurrently to the undischarged term of

-- 7 of 19 --

imprisonment." Although it is not obvious from the text of
subsection (b) that "concurrently" refers to time already
served on the preexisting sentence, Application Note 2 in
the Commentary to S 5G1.3(b) provides that the defendant
should be credited for that time. It states, "When a
sentence is imposed pursuant to subsection (b), the court
should adjust the sentence for any period of imprisonment
already served as a result of the conduct taken into
9
account in determining the guideline range for the instant
offense . . . ." U.S.S.G. S 5G1.3 cmt. n.2. Note 2, therefore,
makes clear that "concurrently" in subsection (b) means
fully or retroactively concurrently, not simply concurrently
with the remainder of the defendant’s undischarged
sentence.
Because Ruggiano did not commit his racketeering
offense while incarcerated, nor was it related to his state
gambling offense, neither subsection (a) nor (b) ofS 5G1.3
applies to his sentencing. Hence, as both parties agree, the
"catch-all provision" of S 5G1.3 -- subsection (c) -- applies.
See U.S.S.G. S 5G1.3 cmt. n.3 ("In circumstances not
covered under subsection (a) or (b), subsection (c) applies.").
As cited above, subsection (c) states that "the sentence for
the instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense." U.S.S.G.S 5G1.3(c).4
The BOP contends that neither this language, nor the
language of the commentary to S 5G1.3 that expounds
upon subsection (c) -- namely, Application Notes 3 through
5 -- permits a court to award credit for time served on an
undischarged state sentence. The BOP submits that a
prohibition on granting credit for time served on an
unrelated sentence was effected by the 1995 amendments
to the Guidelines, which altered the language of subsection
(c) and its applicable commentary.5 Hence, the BOP asserts,
_________________________________________________________________
4. Although the Guidelines label subsection (c) a"Policy Statement," "the
policy statements and commentary contained in the guidelines are
binding on the federal courts." Rios, 201 F.3d at 260 n.3 (citations
omitted).
5. The pre-1995 version of S 5G1.3(c) stated:
(Policy Statement) In any other case, the sentence for the instant
offense shall be imposed to run consecutively to the prior
undischarged term of imprisonment to the extent necessary to
achieve a reasonable incremental punishment for the instant
offense.
U.S. Sentencing Guidelines Manual Appendix, Amendment 535 (2000).
Moreover, the pre-1995 version of Note 3 of the commentary to S 5G1.3
elaborated:

-- 8 of 19 --

10
our holding in Rios v. Wiley, 201 F.3d 257 (3d Cir. 2000),
which construed subsection (c) as permitting the
sentencing judge to adjust a defendant’s sentence
downward for time served on an unrelated state sentence,
is inapplicable, for Rios interpreted only the pre-1995
amendments version of S 5G1.3(c).
We need not delve into the BOP’s detailed arguments as
to why the post-1995 version of S 5G1.3(c) ought to be
interpreted so as to prohibit crediting, for although some of
our sister courts of appeals have adopted the BOP’s view,
see, e.g., United States v. Fermin, 252 F.3d 102 (2d Cir.
2001), we have already ruled to the contrary on this very
issue, a fact which the BOP appears to have overlooked. In
United States v. Brannan, 74 F.3d 448 (3d Cir. 1996), we
held that under S 5G1.3(c) and the commentary thereto, the
district court was free to adjust a defendant’s sentence so
as to account for time served on an unrelated state
conviction. See id. at 452 n.6 (concluding that under
S 5G1.3(c) a "court [may] recognize[ ] time already served for
another offense if and to the extent appropriate"). The BOP
appears to assume that Brannan’s interpretation applied
only to the pre-amendment version of the Guidelines, see
Br. of BOP at 30-31; however, in Brannan we explicitly
noted that our conclusion was unaffected by the 1995
amendments to S 5G1.3(c). See id. at 450 n.2.
_________________________________________________________________
[T]he court shall impose a consecutive sentence to the extent
necessary to fashion a sentence resulting in a reasonable
incremental punishment for the multiple offenses. In some
circumstances, such incremental punishment can be achieved by
the imposition of a sentence that is concurrent with the remainder
of the unexpired term of imprisonment. In such cases, a consecutive
sentence is not required. To the extent practicable, the court should
consider a reasonable incremental penalty to be a sentence for the
instant offense that results in a combined sentence of imprisonment
that approximates the total punishment that would have been
imposed under S 5G1.2 (Sentencing on Multiple Counts of
Conviction) had all of the offenses been federal offenses for which
sentences were being imposed at the same time.
Id. This commentary is then followed by four illustrations of how to
apply subsection (c).
11
Moreover, we find the BOP’s reasoning unavailing. The
BOP stresses the fact that S 5G1.3 Application Note 2,
which expounds upon subsection (b) only, explicitly
provides that "[w]hen a sentence is imposed pursuant to
subsection (b), the court should adjust the sentence for any
period of imprisonment already served," whereas subsection
(c) does not so explicitly provide. The absence of such a
provision in the commentary to subsection (c), the BOP

-- 9 of 19 --

concludes, "suggests the [Sentencing Commission] did not
intend for sentencing courts to make downward
adjustments to account for time served." BOP Br. at 24-25.
We disagree. As we see it, the relevant difference between
subsections (b) and (c) that is suggested by Note 2 is that,
while credit for time served on related convictions"should"
be granted under subsection (b), it may be granted by the
sentencing court in its discretion in subsection (c) cases,
but is not required. This appears to be the change that was
effected by the 1995 amendments to the Guidelines.
Whereas the pre-1995 commentary stated that the
sentencing court "should consider a reasonable incremental
penalty . . . that results in a combined sentence of
imprisonment that approximates the total punishment that
would have been imposed under S 5G1.2 (Sentencing on
Multiple Counts of Conviction) had all of the offenses been
federal offenses for which sentences were being imposed at
the same time," S 5G1.3(c) cmt. n.3 (1994) (emphasis
added), the post-1995 commentary’s silence on this matter
suggests to us not that this practice of "hypothetical
sentencing" is no longer allowed, but simply that it is not
necessarily required or encouraged as it was under the pre-
1995 Guidelines.
Indeed, we hinted at this interpretation of the 1995
amendments’ effect in United States v. Saintville, 218 F.3d
246 (3d Cir. 2000), where we noted that under the new
version of subsection (c), "a sentencing court no longer
must make the hypothetical calculation" that was required
under the pre-1995 Guidelines. Id. at 249 (emphasis
added); see also id. (observing that the amended subsection
(c) no longer "requires the court to make a hypothetical
sentencing calculation") (emphasis added). While noting
that a hypothetical sentencing calculation was no longer
required under the amended Guidelines, we did not,
12
however, declare that the amended Guidelines prohibited a
sentencing court from making such a calculation. See also
United States v. Anderson, 98 F. Supp. 2d 643, 645 n.3
(E.D. Pa. 2000) ("[T]he court does not believe that the
[1995] revisions in any way affect the primary holdings of
[Rios and Brannan], which permit adjustment of a sentence
under 5G1.3 to reflect time served for which no credit is
received . . . .").
We would feel more confident in this conclusion if the
commentary to subsection (c) explicitly referred to
adjustments for time served as does the commentary to
subsection (b). However, the fact that the commentary to
subsection (c) does not refer to adjustments for time served
does not persuade us that such adjustments are
inappropriate because the text of subsection (c) itself
explicitly states that "the sentence for the instant offense
may be imposed to run concurrently." (Emphasis added.)
The BOP argues, citing to an opinion of the United States
Court of Appeals for the Second Circuit, Fermin , 252 F.3d
at 102, that "concurrently" in the text ofS 5G1.3(c) can only

-- 10 of 19 --

be read to mean concurrently with the remainder of the
pre-existing sentence, and not concurrently with the full
pre-existing sentence (i.e., retroactively concurrent). We
again disagree, for the text of subsection (b) also uses the
term "concurrently" yet, as the commentary to that
subsection makes clear, the authors of the Guidelines
intended for "concurrently" in S 5G1.3(b) to mean
concurrent with the full pre-existing sentence. See S 5G1.3
cmt. 2. It would be most anomalous if "concurrent" were to
mean retroactively concurrent in subsection (b), but could
not mean the same in subsection (c). See 2A Sutherland
Statutory Construction S 46:06, at 193 (Norman J. Singer
ed., 6th ed. 2000) ("There is a presumption that the same
words used twice in the same act have the same meaning");
United States v. Milan, U.S. App. LEXIS 18162, *56 (3d Cir.
2002) (noting that the rules of statutory construction apply
when interpreting the Guidelines).
The BOP also stresses the fact that the pre-1995
commentary to S 5G1.3(c) stated that the sentencing court
"shall impose a consecutive sentence to the extent
necessary to fashion a sentence resulting in a reasonable
13
incremental punishment for the multiple offenses." By
omitting this reference to "reasonable incremental
punishment," the BOP submits, the new version of the
commentary to S 5G1.3(c) does not allow for downward
adjustments based on time served on an unrelated state
conviction. While we recognize that our opinions
interpreting the pre-1995 version of S 5G1.3(c) often cited to
this "reasonable incremental punishment" language, see,
e.g., Rios, 201 F.3d at 265, we are unconvinced that the
absence of this language in the post-1995 version of the
Guidelines has the significance that the BOP attributes to
it. Rather, because, for the reasons given above we read
"concurrently" under the new version of S 5G1.3(c) as
capable of meaning fully or retroactively concurrently, it
appears to us that the amendments to S 5G1.3(c) imposed
only a new semantic formulation for what is still, in
essence, the imposition of a "reasonable incremental
punishment" through "concurrent" or "partially concurrent"
sentencing.
Accordingly, we are confident that, despite the decisions
of our sister courts of appeals to the contrary, our
conclusion in Brannan that credit for time served on a pre-
existing sentence is allowed under S 5G1.3(c) is correct. We
are satisfied, therefore, that the court that sentenced
Ruggiano had the authority under S 5G1.3(c) to adjust
Ruggiano’s sentence for the time served on his state
conviction; we now turn to whether the court in fact
exercised this power in sentencing the appellant.
III. What the Sentencing Court Did
As discussed above, during the sentencing hearing
Ruggiano’s attorney asked the court to sentence Ruggiano

-- 11 of 19 --

"concurrently with his state sentence" and reminded the
court that it had the authority to do so under U.S.S.G.
S 5G. Minutes later, Ruggiano’s attorney again requested
that the court "consider ruling that [the federal] sentence be
concurrent with the state sentence under 5 G and--,"
upon which the court interrupted:
It doesn’t sound as if he has much to go on the state
sentence. But I think it makes sense to go ahead and
14
recommend that it be served concurrently and that he
receive credit for the amount of time that he has served
there.
[A43.] That same day, the court entered its written
judgment, which stated:
The defendant is hereby committed to the custody of
the United States Bureau of Prisons to be imprisoned
for a term of 112 months. Sentence imposed to run
concurrent with State sentence. Defendant to receive
credit for time served.
[A47.]
Ruggiano contends that the court’s oral and written
sentence indicate that his total sentence was to be adjusted
so as to account for time served on his state conviction. In
other words, Ruggiano submits, his final sentence was
intended to be and hence was 112 months minus the 14
months served on his state conviction, totaling 98 months.
The BOP counters that even if a sentencing court has the
authority to adjust for time served under U.S.S.G.
S 5G1.3(c), the sentencing court here did not in fact do so
for three reasons. First, the BOP contends that the
sentencing court had no authority to grant the defendant
"credit" for time served, because only the BOP, under 18
U.S.C. S 3585(b), and not the sentencing court, has the
authority to award "credit" to inmates when calculating
their sentence. Second, and relatedly, the BOP contends
that the sentencing court’s oral sentence -- particularly its
use of the word "recommend" -- indicates that the court
was imposing only a nonbinding recommendation on the
BOP that it was free to ignore in calculating Ruggiano’s
sentence. Finally, and also relatedly, the BOP avers that
under Eleventh Circuit law, which is the jurisdiction in
which the sentencing court -- the District Court for the
Southern District of Florida -- is located, awarding credit
for time served on a state conviction is not allowed. Hence,
the BOP argues, we cannot infer that the sentencing court
intended to award such credit when doing so would have
been in violation of the controlling Eleventh Circuit
authority on the subject. We address each of the BOP’s
contentions in turn.
15

-- 12 of 19 --

A. The Meaning of the Term "Credit"
18 U.S.C. S 3585(b), entitled "Credit for prior custody,"
states:
A defendant shall be given credit toward the service of
a term of imprisonment for any time he has spent in
official detention prior to the date the sentence
commences--
(1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the
defendant was arrested after the commission of the
offense for which the sentence was imposed;
that has not been credited against another sentence.
As we have noted previously, S 3585(b) uses the term
"credit" as a term of art. See Rios, 201 F.3d at 269. This
type of "credit," awarded for time served in detention for the
same offense for which the defendant is ultimately
sentenced, may only be calculated by the BOP. The
sentencing (district) court has no authority to award
"credit" as that term is used in S 3585(b). United States v.
Wilson, 503 U.S. 329, 333 (1992).
The type of "credit" awarded by the sentencing court to
Ruggiano, however, was completely different from the type
of "credit" discussed in S 3585(b). While the latter is within
the exclusive authority of the BOP to award, credit for time
served on a pre-existing state sentence is within the
exclusive power of the sentencing court. Indeed, as quoted
above, S 3585(b) specifically prohibits the BOP from
awarding credit for time that has been "credited against
another sentence." As was ably explained by our colleague
Judge Stapleton in his concurring opinion in United States
v. Dorsey, 166 F.3d 558 (1999):
[M]uch of th[is] conflict . . . is attributable to [the] use
of the word "credit" to refer to two distinct benefits that
a convicted defendant may receive[:]
[1.] A sentencing judge is charged with determining
the length of any sentence of incarceration to be
served. In the course of doing so, it may impose a
16
lesser sentence than it otherwise would have because
of any number of relevant factors in the case.
[2.] After a defendant has been sentenced to a term of
incarceration, the custodian must determine when the
sentence imposed will have been satisfied. In the
course of doing so, the custodian may give "credit"
against the sentence for such things as presentence

-- 13 of 19 --

detention, good behavior, etc.
Id. at 564.
The BOP argues that even if "credit" can be used to refer
to two distinct benefits, one which is within the sentencing
court’s authority and one which is not, it was the second of
the two benefits described by Judge Stapleton to which the
sentencing court was referring when it sentenced Ruggiano.
We find this argument implausible in light of the fact that
the court’s oral sentence granted the "credit" immediately
after referring to Ruggiano’s state sentence:
It doesn’t sound as if he has much time to go on the
state sentence. But I think it makes sense to go ahead
and recommend that . . . he receive credit for the
amount of time that he has served there.
The written sentence evinces a similar intent when it states,
"Sentence imposed to run concurrent with State sentence.
Defendant to receive credit for time served."
It is clear to us, therefore, that the sentencing court
intended to award Ruggiano the first of the two benefits
described by Judge Stapleton, which was well within its
authority, and not "credit" as that term is used in
S 3585(b), for, as we noted in Rios, the mere fact that "an
application of section 5G1.3(b) or (c) and the commentary
by the sentencing court, and the award of sentencing credit
by the BOP under section 3585(b), may result in the same
benefit to the defendant . . . does not alter the fact that the
two benefits bestowed are distinct, and the Supreme
Court’s opinion in Wilson only meant to refer to the award
of sentencing credit under section 3585(b) when it
determined that the power to award that credit was
entrusted exclusively to the BOP." 201 F.3d at 270. All that
happened here is that, just as in Rios and Dorsey, "the
17
sentencing court simply used th[e] term [‘credit’] slightly
imprecisely, which . . . cannot be considered an
unprecedented occurrence." Id. at 269.
While we think that the sentencing court’s intentions
were clear enough, we encourage sentencing courts in the
future to avoid using the term "credit" to refer to S5G1.3
adjustments so as not to engender any unnecessary
confusion. We admit that our court has not always been
consistent in how we have referred to S 5G1.3 adjustments.
In Brannan, 74 F.3d at 446, we termed the recognition of
time served on a state sentence pursuant to S 5G1.3 a
"downward departure," while noting that using the term
"departure" in this sense "var[ied] slightly from the concept
[of ‘departure’] elsewhere in the Guidelines," id. at 452 n.6.
However, in Dorsey, 166 F.3d at 560, we appeared to refer
to S 5G1.3 departures as "credits" (which is what prompted
Judge Stapleton to write his aforementioned concurrence);
and later, in Rios (2000), we dubbed a S 5G1.3 departure

-- 14 of 19 --

an "adjustment." 201 F.3d at 266.
Because the term "departure" is, as we acknowledged in
Brannan, imprecise, and because the term"credit" raises
the confusion with S 3585(b) described above, we prefer the
term "adjustment" to describe the kind of benefit being
awarded a defendant by a sentencing court underS 5G1.3.
See United States v. Zapata, 1996 U.S. App. LEXIS 30301
(9th Cir. Nov. 5, 1996) (not precedential) ("In general, courts
do not have authority to calculate credits, . . .[but] the
district court can make an adjustment to the second
sentence in order to assure that it is fully concurrent with
the first one.") (emphasis added). We therefore urge
sentencing courts in the future to state something to the
effect of "I hereby adjust the defendant’s federal sentence
under S 5G1.3(c) so as to be fully concurrent with his state
sentence," in order to avoid much of the confusion that this
case, and many others, have presented.
B. Was the Sentencing Court’s "Recommend[ation]"
Binding?
The BOP also asserts that even if the sentencing court
did not intend to award Ruggiano a "credit" as that term is
18
used in S 3585(b), it nevertheless only issued a nonbinding
recommendation that Ruggiano’s sentence be adjusted
downward for time served on his state conviction, a
recommendation that the BOP was free to ignore. We
disagree. In interpreting a sentencing court’s statements,
we "inspect[ ] . . . the sentencing transcript as well as the
judgment the sentencing court entered." Rios , 201 F.3d at
265. When a sentencing court’s oral sentence and its
written sentence "are in conflict," the oral sentence prevails.
United States v. Faulks, 201 F.3d 208, 211 (3d Cir. 2000).
However, when there is no conflict between the oral and
written statements, but rather only ambiguity in either or
both, we have recognized that the controlling oral sentence
"often [consists of] spontaneous remarks" that "are
addressed primarily to the case at hand and are unlikely to
be a perfect or complete statement of all the surrounding
law." Rios, 201 F.3d at 268 (citation omitted).
In interpreting the oral statement, we have recognized
that the context in which this statement is made is
essential. For instance, in Rios, we were called upon to
interpret a sentencing court’s oral statement sentencing the
defendant "to a term of 90 months on both counts to run
concurrently with each other and concurrently with the
state sentence and that you receive credit for time served."
Id. at 261. There, as here, the BOP contended that the
sentencing court’s provision for "credit for time served" was
mere surplusage and nonbinding. See id. at 269. In
concluding otherwise, we emphasized the need to"view the
sentencing court’s language in the context of the overall
proceeding," id., taking particular note of the fact that the
defendant had, during the sentencing hearing, specifically

-- 15 of 19 --

asked the court to adjust his sentence downward for time
served on a pre-existing state condition. See id. at 267
(noting that "[t]he juxtaposition of the actual words used in
pronouncing the sentence and the discussion between the
attorneys on the one hand and the court on the other
demonstrates that the sentencing court was cognizant of
the time Rios had spent in pre-sentence incarceration, and
further that Rios sought consideration for that time from
the court in its determination of the sentence to be
imposed").
19
Applying a similar method of analysis here, we think it
clear that by its statements -- both oral and written -- the
sentencing court intended to adjust downward for the time
served on Ruggiano’s New York sentence pursuant to
S 5G1.3(c) and to make this adjustment binding on the BOP
as part of Ruggiano’s final sentence. The mere fact that the
sentencing court did not refer to S 5G1.3(c) specifically in
its sentence does not dissuade us from our conclusion, for,
as we noted in Rios, 201 F.3d at 268, it is not necessary for
"the court [to] state explicitly its reliance on section
5G1.3(c) and Application Note 3" when "the overall context
in which the court imposed the sentence and the
information before the court at that time" -- here,
Ruggiano’s attorney had twice specifically requested that
"this [the federal] sentence be concurrent with the state
sentence under 5 G" -- makes clear that the court was
indeed relying on this provision.
Nor are we persuaded by the BOP’s emphasis on the
sentencing court’s use of the word "recommend." In stating,
"I think it makes sense to go ahead and recommend that
[Ruggiano’s sentence] be served concurrently and that he
receive credit for the amount of time served there[on his
state sentence]," the sentencing court merely indicated its
intent to go ahead and adjust the sentence pursuant to
S 5G1.3(c). This, as we see it, is in fact what the court did,
as evidenced by its written statement to that effect--
"Sentence imposed to run concurrent with State sentence.
Defendant to receive credit for time served." We see no
conflict between the oral and written statements, but rather
consistency; the sentencing judge said that he was going to
go ahead and adjust, and that is precisely what he did.
At most the oral sentence might be viewed as ambiguous,
but as we stated in Rios:
District judges normally deliver their decisions on
sentencing from the bench, just after, and sometimes
in the course of, the presentation of numerous
arguments and even evidence as to the permissible
range and proper sentence. These often spontaneous
remarks are addressed primarily to the case at hand
and are unlikely to be a perfect or complete statement
of all of the surrounding law.
20

-- 16 of 19 --

201 F.3d at 268. It is therefore understandable that Judge
Roettger’s use of the word "recommend" was less than
opportune. The mere fact that he may have been somewhat
loose in his language pronouncing the sentence, however,
does not persuade us that he intended to issue only a
nonbinding recommendation to the BOP when the written
judgment -- which merely clarifies, and is not in conflict
with, the oral sentence -- as well as the context in which
the judge’s remarks were made demonstrate otherwise.
Moreover, the BOP, in arguing that the sentencing judge
intended through his "nonbinding recommendation" to
grant to the BOP the power and discretion to adjust
Ruggiano’s sentence for time served on his state conviction,
would have us believe that the sentencing judge gave the
BOP power which it is statutorily prohibited from
exercising, for as we noted above, see supra at 17,
adjusting a sentence for time served on a state conviction
pursuant to S 5G1.3 is within the exclusive authority of the
sentencing court. Adjustments for time served on an
unrelated state conviction are outside the purview of the
BOP’s powers to grant credit, which are limited to matters
such as time served in detention related to the instant
offense, good behavior, etc. We decline to attribute to as
capable and experienced a jurist as Judge Roettger an
ineffective pronouncement that would amount to nothing
more than surplusage.6
_________________________________________________________________
6. Although neither party addressed the issue, we also think it relevant
that had the sentencing court not adjusted for the time served on
Ruggiano’s state sentence, a "disparity" would have resulted in that
Ruggiano’s total sentence for both crimes would have been longer than
had the sentences for the different offenses been imposed at the same
time under the Guidelines. Rios, 201 F.3d at 267 (considering it relevant
that the sentencing court had "intended to correct the disparity that
resulted from the happenstance of the dates of the federal and state
sentencing proceedings"). This is precisely the type of situation that a
S 5G1.3(c) adjustment was designed to address, as we explained in Part
II, supra.
The base offense level for Ruggiano’s federal crime of extortion was 20,
see U.S.S.G. S 2E2.1, which was adjusted to 24 for factors unrelated to
his state conviction. The offense level for the most analogous federal
offense to his state gambling crime would have been at most 12 and at
21
C. The (Ir-)Relevance of Eleventh Circuit Law
Finally, the BOP contends that because Eleventh Circuit
jurisprudence, which was the controlling legal authority for
the sentencing court, does not permit adjustments for time
served on a state conviction under S 5G1.3(c), we ought to
assume that the sentencing court was following this
precedent and did not intend to award Ruggiano an
adjustment that is impermissible under Eleventh Circuit

-- 17 of 19 --

law. We decline to view the sentencing court’s statements
solely in the context of Eleventh Circuit law, for while such
an exercise is arguably relevant to discerning the court’s
true intent in issuing its sentence, we think that, for the
reasons stated above, the sentencing court clearly indicated
its intention to adjust Ruggiano’s sentence for the time
served on his state conviction, and it is therefore
unnecessary to explore Eleventh Circuit law on the matter.
Moreover, if the government is correct in its assertion that
the court’s sentence contravened Eleventh Circuit law, it
should have appealed the sentence directly to the Court of
Appeals for the Eleventh Circuit.7
Even were we to import Eleventh Circuit law, however, it
is, as far as we can tell, inconclusive on the issue of
whether a sentencing court may adjust for time served on
a pre-existing state sentence under S 5G1.3(c). Unlike the
Second Circuit in Fermin, which we discuss supra, the
_________________________________________________________________
least 6. See U.S.S.G. S 2E3.1. Under the Guidelines’ grouping rules, see
U.S.S.G. SS 3D1.4, 3D1.5, the gambling offense would not have increased
Ruggiano’s total offense level or final punishment. Hence, the situation
here resembles the situation presented in Rios in that the hypothetical
guideline calculation allows for Ruggiano’s final federal sentence to be
adjusted for the time served on his unrelated state sentence so as not to
make him serve a combined sentence that would be longer than if each
crime were a federal crime for which he was sentenced simultaneously.
7. Of course, in the government’s defense, if its arguments in the case at
bar represent accurately its understanding of the sentence at the time at
which direct appeal could have been taken, the government would have
seen no need to appeal, for it presumably considered the granting of
credit to Ruggiano as surplusage and nonbinding. However, to the extent
that there was apparent ambiguity in the sentence, the government
ought to have appealed.
22
Eleventh Circuit has not definitively declared that
adjustments for pre-existing sentences are not permitted
under S 5G1.3(c).
The only supporting cases the BOP cites are United
States v. Johnson, 87 F.3d 1257 (11th Cir. 1996), and
United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir.
1993), neither of which, the BOP concedes, necessarily
shows that adjustments for pre-existing sentences under
S 5G1.3(c) are prohibited, but rather only that they are not
"prefer[red]." Br. of BOP at 31-32; see also Br. of BOP at 37
(noting that Johnson only "suggests" that such adjustments
are not authorized). In Johnson, the defendant argued that
the sentencing court should have granted him credit for
time served on his state sentence. In just one paragraph
that lacked any thorough analysis, the Eleventh Circuit
rejected the defendant’s argument by noting that the
sentencing court did not shirk its responsibilities under
S 5G1.3(c) by refusing to grant credit. The Johnson Court
never stated, however, that the sentencing court would

-- 18 of 19 --

have been prohibited from adjusting for time served on a
pre-existing state sentence under S 5G1.3(c). It simply was
satisfied that in the case before it, no such adjustment was
required. While the Eleventh Circuit to our knowledge has
never explicitly authorized such adjustments, we hardly
read Johnson as prohibiting them altogether. At best for the
BOP, Eleventh Circuit law is inconclusive on this point,
which only increases our hesitation to import it for
purposes of construing what the sentencing court intended
here.8
_________________________________________________________________
8. As a final point of appeal, Ruggiano alleges a claim based on
Santobello v. New York, 404 U.S. 257 (1972). By opposing an adjustment
for the time served on his state conviction, Ruggiano contends, the
government is breaching the conditions of his plea agreement, which
stated that "The United States will not oppose the defendant’s motion to
have the instant offense run concurrent with the state sentence which
the defendant is presently serving." [A34.] Because we find that Ruggiano
is entitled to relief for the reasons stated in the text, we decline to
address whether his Santobello claim has any merit.
23
Conclusion
For the foregoing reasons, we hold that the BOP’s failure
to implement the sentence imposed by the sentencing court
mandates habeas corpus relief under S 2241. See Rios, 201
F.3d at 270. Accordingly, we will vacate the District Court’s
order denying Ruggiano’s petition and remand with
instructions that the District Court grant the petition and
direct the BOP to credit Ruggiano with the 14 months he
spent in detention prior to the imposition of sentence on his
federal conviction.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
24

-- 19 of 19 --