United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
the Court is Defendant Kyle Goddard's unopposed Motion
for a Nunc Pro Tunc Order for a Concurrent Sentence
(Dkt. 38). For the reasons explained below, the Court will
grant the motion to the extent defendant is seeking a
statement of intention from this Court, which Goddard may use
to support a request for a nunc pro tunc designation
from the Bureau of Prisons (BOP).
Goddard is a federal inmate at FCI Sheridan, Oregon. He is
serving a 15-month sentence this Court imposed in August
2016. At the time of his federal offense for theft and
possession of a stolen firearm, Mr. Goddard was on state
probation for stealing DVDs from Walmart. After this Court
imposed its sentence, a state court sentenced Mr. Goddard to
one year of imprisonment for the DVD theft, though it stated
that its sentence should run concurrently with the federal
sentence this Court previously imposed.
after Mr. Goddard was sentenced by the state court, he did
not go to federal prison; he instead went to state prison and
served his state sentence. Upon completing his state
sentence, Mr. Goddard was transferred to federal custody, but
because this Court's judgment is silent as to whether it
should run concurrently with the state sentence, BOP has
calculated a consecutive sentence. Thus, the defendant is now
slated to serve a sentence that he did not expect, that
defense counsel did not anticipate, and that neither the
state or federal sentencing judges intended. Given these
circumstances, Mr. Goddard asks the Court to enter a nunc
pro tunc order for concurrent service.
courts may order a federal sentence to run concurrently with
an anticipated state sentence. See 18 U.S.C. §
3584; Setser v. United States, 132 S.Ct. 1463, 1473
(2012); United States v. Montes-Ruiz, 745 F.3d 1286
(9th Cir. 2014) (federal sentencing court has the authority
to “resolve the concurrent/consecutive issue for a
state sentence whether the sentence has already been imposed
or is merely anticipated.”). But in this case, no such
request was made so the judgment does not say anything about
a state sentence. And the Court cannot amend its judgment
after the fact because federal district courts are prohibited
from modifying a term of imprisonment after it has been
imposed. See 18 U.S.C. § 3582(c). Although
there are exceptions to that rule, none apply here. So to the
extent defendant is asking this Court to amend its judgment,
the Court will reluctantly deny the motion. It has no
authority to grant that request.
there is still a way to reach the correct result. The Bureau
of Prisons could remedy the situation by entering a nunc
pro tunc designation as to the place of imprisonment.
Under 18 U.S.C. § 3621(b), the Bureau of Prisons
designates the place of imprisonment, and in this case, it
may choose to designate a state prison as the place where Mr.
Goddard will be incarcerated to serve his federal sentence.
See 18 U.S.C. § 3621(b); Dept. of Justice,
BOP, Program Statement 5160.05: Designation of State
Institution for Service of Federal Sentence (“BOP
Program Statement”), ¶ 9(b)(4). Further, BOP
may make this designation nunc pro tunc, effectively
resulting in a concurrent sentence. See id.; Barden v.
Keohane, 921 F.2d 476 (3d Cir. 1990)
(“Barden's state incarceration can be credited
against his federal sentence if the Bureau, nunc pro
tunc, designates Rockview [a state institution] as the
facility where Barden served a portion of his federal
these authorities, the correct procedure is for Mr. Goddard
to seek a nunc pro tunc designation from
BOP. In deciding whether to grant such a request, BOP's
Program Statement indicates that the administrator handling
the request will send a letter to the sentencing court
inquiring whether the court objects to concurrent service.
BOP Program Statement ¶ 9(c). Anticipating that
BOP may send such a letter to this Court, the Court states
its position here:
The Court has no objection to Goddard receiving prior-custody
credit for the time he spent in state custody as a result of
the sentence handed down in Idaho v Goddard, No.
CR-2016-4679, First Judicial District, State of Idaho, County
of Kootenai. If the Court had been asked to do so, it would
have ordered that the sentence in this case run concurrently
with the anticipated sentence in that state case.
Accordingly, if Goddard requests a nunc pro tunc
designation, the Court recommends that BOP grant such a
request, thereby crediting Goddard with the time he spent in
state prison toward his federal sentence.
IS ORDERED that Defendant's motion (Dkt. 38),
construed as a request for a statement of ...