E.D. Wis. Notes Split Re BOP Authority to Determine Whether Federal Sentence Should Run Concurrently with State Sentence

Per Bintzler v. Gonzales, Slip Copy, 2006 WL 1431491 (E.D. Wis. May 24, 2006):

Bintzler is asking the court to reverse what he claims to have been an improper sentence modification by the Bureau of Prisons. . . . The BOP lacks authority to determine whether a prisoner's sentences should run concurrently when the federal sentencing court imposes sentence after the state imposes its own sentence. However, in cases like Bintzler's where the federal court imposes sentence before the state court, the BOP has the effective authority to determine how the sentence should run. See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 74 (2nd Cir.2005).

There is a split among the circuits as to the source and extent of the BOP's authority to treat a sentence as consecutive or concurrent. The Second and Third Circuits have ruled that 18 U.S.C. § 3583(a) which requires that multiple prison terms “run consecutively unless the court orders that the terms are to run concurrently” is inapplicable to situations such as this in which the federal sentence is imposed first. See McCarthy v. Doe, 146 F.3d 118, 121-22 (2nd Cir.1998); Barden v. Keohanek, 921 F.2d 476, 478 (3d Cir.1990). . . .

The Seventh Circuit disagrees with the legal underpinnings, but not the result of the Second Circuit's McCarthy opinion.