ALD-054                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2472
                                       ___________

                                   DEXTER PICKETT,
                                              Appellant

                                             v.

                              WARDEN MCKEAN FCI
                       ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 1:16-cv-00023)
                   Magistrate Judge: Honorable Susan Paradise Baxter
                     ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 21, 2017
            Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges

                             (Opinion filed: March 2, 2018)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

       Dexter Pickett, a federal inmate, appeals pro se from the order of United States

District Court for the Western District of Pennsylvania denying his petition for writ of


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
habeas corpus filed pursuant to 28 U.S.C. § 2241. Pickett challenged the Bureau of

Prison’s (“BOP”) calculation of his sentence. For the reasons set forth below, we will

summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.

        On March 15, 2011, Pickett was arrested and charged in the New York Supreme

Court in Westchester County with criminal possession of a weapon in the second degree.

About four months later, Pickett was indicted in the United States District Court for the

Southern District of New York. On January 4, 2013, Pickett pleaded guilty to

conspiracy to distribute and possession with intent to distribute a controlled substance

and possession of a firearm in connection with a drug trafficking offense, 18 U.S.C. §§

846, 924(c)(1), in the Southern District of New York. That same day, Pickett was

sentenced to an aggregate sentence of 120 months of incarceration followed by four years

of supervised release. On January 17, 2013, Pickett was sentenced in state court to three

and a half years of incarceration. The state court directed that Pickett’s sentence run

concurrently with his federal sentence. From March 15, 2011, to March 6, 2014, Pickett

was incarcerated in New York state facilities and subject to New York’s primary

jurisdiction, but was transferred to federal custody pursuant to several writs of habeas

corpus ad prosequendum for his federal criminal proceedings.

        On March 6, 2014, Pickett was paroled on his state sentence and was released to

the BOP pursuant to a detainer. Pickett requested that he receive credit for the time he

was incarcerated in the state institution. The BOP denied Pickett’s request. After
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exhausting his administrative remedies, Pickett filed a petition for writ of habeas corpus

under 28 U.S.C. § 2241 in the Western District of Pennsylvania, where he was

incarcerated. The parties consented to proceeding before a Magistrate Judge and the

matter was fully briefed. The Magistrate Judge denied Pickett’s petition. Pickett timely

appeals.

         The District Court had jurisdiction over Pickett’s habeas petition pursuant to 28

U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 

, 242 (3d Cir. 2005).

We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial of

his habeas petition de novo. See Vega v. United States, 

, 314 (3d Cir.

2007).

         The Attorney General, who acts through the BOP, has the authority to calculate a

federal sentence and provide credit for time served. United States v. Wilson, 

, 334-35 (1992). In calculating a sentence, the BOP first determines when the

sentence commenced and then determines whether the prisoner is entitled to any credits

toward that sentence. See 18 U.S.C. § 3585. The Magistrate Judge correctly upheld the

BOP’s determination that Pickett’s federal sentence was to run consecutively to his state

sentence. Because the sentencing court did not order the federal sentence to run

concurrently with Pickett’s yet to be imposed state sentence, the BOP was required to

treat his federal sentence as running consecutively to his state sentence. See 18 U.S.C. §

3584(a) (“Multiple terms of imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run concurrently.”); see also Elwell v. Fisher,
                                               3


, 484 (8th Cir. 2013) (noting that § 3584(a) requires state and federal

sentences imposed at different times to run consecutively, unless the court orders the

terms to run concurrently).

       The BOP was also correct in not awarding credit for time served by Pickett while

on loan to federal authorities pursuant to a writ of habeas corpus ad prosequendum. The

production of a defendant pursuant to a writ of habeas corpus ad prosequendum does not

affect the jurisdiction of the sovereign with primary custody over a defendant. Rios v.

Wiley, 

, 274 (3d Cir. 2000) (“a prisoner detained pursuant to a writ of

habeas corpus ad prosequendum remains in the primary custody of the first jurisdiction

unless and until the first sovereign relinquishes jurisdiction over the prisoner.”); see also

Crawford v. Jackson, 

, 695 (D.C. Cir. 1978) (“When an accused is

transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be

‘on loan’ to the federal authorities so that the sending state’s jurisdiction over the accused

continues uninterruptedly.”). New York had primary custody over Pickett and he has

failed to show that New York relinquished custody of him during the time when he was

on loan to federal authorities.

       We also agree with the BOP’s denial of credit toward Pickett’s federal sentence

for the time he served in state custody before he was paroled to federal custody. Section

3585(b) prohibits the BOP from crediting a federal sentence with time that has already

been credited toward another sentence. See 

(“Congress made

clear [in § 3585(b)] that a defendant could not receive a double credit for his detention
                                              4
time.”). Because Pickett received credit toward his state sentence for his time spent in

custody from March 15, 2011, to March 6, 2014, he was not entitled to credit from the

BOP for that time.

       Finally, the BOP did not abuse its discretion in denying Pickett’s request for nunc

pro tunc designation. The BOP has the authority to retroactively designate the place of

confinement for a prisoner’s federal sentence. 18 U.S.C. § 3621(b). The BOP may

designate a state prison as the place of confinement and it has wide authority in making

such a designation. Setser v. United States, 

, 235 (2012); Barden v.

Keohane, 

, 483 (3d Cir. 1990). As discussed by the Magistrate Judge, the

BOP reviewed Pickett’s request under the factors stated in § 3621(b). Specifically, the

BOP contacted the federal court for input and considered the sentencing judge’s deferral

to the discretion of the BOP. The BOP also considered Pickett’s criminal history, which

included convictions for attempted endangering the welfare of a child and possession of

stolen property in addition to disciplinary infractions. The BOP did not abuse its

discretion in concluding that Pickett’s criminal history, coupled with the sentencing

judge’s silence, counseled against granting concurrency. The BOP also considered the

state court’s intention to have Pickett’s sentences run concurrently and the fact that

Pickett’s state and federal charges were related. However, as “neither the federal courts

nor the [BOP] are bound in any way by the state court’s direction that the state and

federal sentences run concurrently[,]” 

n.4, we cannot conclude

that the BOP abused its discretion in declining to implement the state court’s design. The
                                             5
BOP appropriately considered the relevant factors and its decision was not an abuse of

discretion.

       For these reasons, we will affirm the judgment of the District Court.




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