Case: 18-50512    Document: 00514873161      Page: 1   Date Filed: 03/14/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                     Fifth Circuit

                                                                              FILED
                                                                       March 14, 2019
                                 No. 18-50512
                                                                        Lyle W. Cayce
                                                                             Clerk

In re: UNITED STATES BUREAU OF PRISONS, DEPARTMENT OF
JUSTICE,

             Respondent - Appellant




                 Appeal from the United States District Court
                      for the Western District of Texas


Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      The U.S. Bureau of Prisons (BOP) appeals a contempt sanction related
to its calculation of sentencing credits for federal prisoners. We reverse.
                                        I.
                                       A.
      This case began with a disagreement between the district court and the
BOP regarding the implementation of the revocation sentence of Ruben
Hernandez. Hernandez was convicted in federal court of conspiracy to
transport illegal aliens and sentenced to twelve months’ imprisonment and
three years of supervised release. During his term of federal supervised
release, Hernandez was arrested by local law enforcement and charged in state
court with being a felon in possession of a firearm, theft of a firearm, and
possession of cocaine. Hernandez spent over a year in pretrial detention on
these state charges. The two state firearm charges were later dismissed. On
    Case: 18-50512    Document: 00514873161     Page: 2   Date Filed: 03/14/2019



                                 No. 18-50512
November 15, 2016, Hernandez was acquitted of the remaining state drug
possession charge.
      Federal authorities took custody of Hernandez, and the government
petitioned the district court to revoke his supervised release based on his
alleged drug and firearm possession. On March 13, 2017, the district court
revoked Hernandez’s supervised release and sentenced him to 10 months
imprisonment. At the revocation hearing, Hernandez requested credit for time
served in state custody. The district court orally denied this request. The
revocation judgment orders “that the defendant, Ruben Hernandez, be
committed to the custody of the U.S. Bureau of Prisons for a term of TEN (10)
months, pursuant to 18 U.S.C. § 3583(e)(3) with credit for time served from
November 14, 2016 forward.” The BOP later determined that Hernandez
was entitled to credit for the 543 days he spent in detention following his state
arrest. Because Hernandez had already served more than his 10 month
sentence, he was released.
      The district court learned of Hernandez’s release, and concluded that the
BOP’s sentence calculation was inconsistent with the revocation judgment.
According to the BOP, the district court then directed a probation officer to
contact the BOP and express the court’s disagreement with its credit
calculation. Romulo Armendariz, an Operations Manager at the BOP’s
Designation and Sentence Computation Center, responded that the BOP was
required to give Hernandez credit for the full period he spent in state custody
under 18 U.S.C. § 3585(b). The district court, through the probation officer,
maintained that the BOP had made a mistake. The court requested that the
BOP either take Hernandez back into custody or provide the name and mailing
address of a person to whom a summons could be sent for a Show Cause
hearing.


                                       2
     Case: 18-50512       Document: 00514873161         Page: 3     Date Filed: 03/14/2019



                                       No. 18-50512
                                             B.
       When the BOP did not re-arrest Hernandez, the district court opened a
civil contempt proceeding against Armendariz. 1 The court issued an order to
show cause why Armendariz should not be held in contempt for violating the
court’s revocation order by improperly calculating Hernandez’s sentence. The
district court later issued a supplemental order to show cause related to the
calculation of the sentence of another defendant, Antonio Bustamante-Huerta,
who was released in 2012. 2 The district court subsequently added Craig
Pickles, Section Chief of Sentence Computation at the BOP, as an additional
respondent in the contempt proceeding.
       The district court held a contempt hearing on January 29, 2018. The
court began by explaining that Armendariz and Pickles were named in their
official capacities, and that the contempt proceeding was not against any
individual. The court then raised for the first time the case of another
defendant, Francisco Javier Hernandez, whose supervised release was revoked
in 2011. The district court had ordered Francisco Hernandez’s sentence to run
consecutively to a pending state case. Yet because Francisco Hernandez had
not yet been convicted in state court at the time of the revocation, he was
awarded credit for time served and released. He was later convicted in state
court. The district court expressed its view that the BOP was in contempt of




       1       The district court initially requested that the prosecutor involved in Ruben
Hernandez’s case prosecute the contempt proceeding. The U.S. Attorney’s Office declined the
court’s invitation to prosecute the alleged contempt, stating that it concurred with the BOP’s
credit determination and did not believe that contempt was appropriate. The U.S. Attorney
informed the court that it would instead represent Armendariz. The district court stated that
it intended to appoint a special prosecutor, but did not do so.
        2      Armendariz attests that he was not personally involved in Bustamante-
Huerta’s sentence computation, but that Bustamante-Huerta may have been released early
due to a data entry error.
                                              3
    Case: 18-50512    Document: 00514873161      Page: 4   Date Filed: 03/14/2019



                                 No. 18-50512
court because the BOP awarded credit for time served in state custody despite
the district court’s instruction that the federal sentence be consecutive.
      The BOP expressed its position that it is required by statute to award
credit for time served in official detention when that time has not been credited
to another sentence. See 18 U.S.C. § 3585(b). The BOP repeatedly explained
that, although the district court has the authority to order a consecutive
sentence, the BOP cannot run the federal sentence consecutively if there is no
other sentence in place. Ruben Hernandez, for example, was acquitted in state
court and therefore had no state sentence. The BOP acknowledged that, in
some instances, defendants are awarded credit for time served in pretrial state
detention, released from federal custody, and subsequently convicted in state
court. But the BOP explained that it must “compute the sentence in the here
and now,” and it cannot hold prisoners indefinitely “until we find out what’s
going to happen in the future.” The BOP nonetheless promised “to
communicate the Court’s concerns to the Bureau and see if we can come up
with some type of resolution.”
      The district court then ordered the BOP to file an “advisory to the Court”
explaining its position. The court stated that its “suggestion would be to follow
the statute unless you have a court order saying otherwise.” The BOP filed a
“Court Advisory” restating its legal position. Dissatisfied with this response,
the district court set another hearing “to determine the appropriate sanctions
to be imposed.” After receiving this order, the BOP requested clarification as
to what contempt findings the district court had made. The district court
denied the request for clarification, stating that it would amount to an advisory
opinion, and reiterated that a hearing would be held to determine sanctions.
      On April 25, 2018, the district court held a sanctions hearing. The court
substituted the BOP for the named individual respondents. The court
reiterated its view that it has the authority to order consecutive sentences, and
                                       4
    Case: 18-50512      Document: 00514873161     Page: 5   Date Filed: 03/14/2019



                                  No. 18-50512
that the BOP is not running sentences consecutively when it gives prisoners
credit for time served on unadjudicated state cases. At the conclusion of the
hearing, the district court stated that it was ordering the BOP not to award
credit under § 3585(b)(2) for time served in state detention when the district
court imposes a consecutive sentence. The court described this order as a
“sanction.” The court further explained that its order would apply “[i]n my
cases only,” not nationwide, “[a]nd anybody that violates that injunction will
then be facing [a] personal, individual contempt situation.”
      The district court took no further action in the case. On June 25, 2018,
the BOP filed a notice of appeal from the district court’s April 25, 2018 decision.
                                        II.
      We must first assure ourselves of our jurisdiction. See Hill v. City of
Seven Points, 

, 169 (5th Cir. 2000). The BOP asserts that the
district court’s contempt sanction is either a final decision appealable under 28
U.S.C. § 1291 or an interlocutory injunction appealable under 28 U.S.C.
§ 1292(a)(1). We have jurisdiction under § 1291, and therefore need not
address § 1292(a)(1).
      “The general rule in this circuit is that civil contempt orders are not
appealable final orders for the purposes of 28 U.S.C. § 1291,” but an exception
“exists ‘[w]hen a civil contempt motion is not part of continuing litigation, . . .
because no underlying case awaits final resolution.’” Quilling v. Funding
Resource Grp., 

, 234 (5th Cir. 2000) (quoting In re Grand Jury
Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 

, 1429 (5th Cir. 1991)). This is a standalone civil contempt proceeding
initiated by the district court. We therefore have jurisdiction under § 1291 so
long as the district court issued a final decision in this matter.
      “A decision is final when it ‘ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” Askanase v. Livingwell,
                                        5
    Case: 18-50512     Document: 00514873161      Page: 6   Date Filed: 03/14/2019



                                  No. 18-50512
Inc., 

, 810 (5th Cir. 1993) (quoting Coopers & Lybrand v. Livesay,

, 467 (1978)). A “civil contempt order is not ‘final’ for purposes of
appeal unless two actions occur: (1) a finding of contempt is issued, and (2) an
appropriate sanction is imposed.” In re U.S. Abatement Corp., 

, 567
(5th Cir. 1994). The district court in this case did not make an explicit contempt
finding. And despite the BOP’s request for clarification, the court refused to
explain the factual or legal basis for its conclusion that the BOP had violated
a court order.
      We nonetheless find that the district court held the BOP in contempt.
The court repeatedly expressed its view that the BOP was violating its
revocation judgments, and twice stated that it would hold a hearing to
determine appropriate sanctions. The district court then imposed a final
sanction in the form of an oral injunction against the BOP. The court did not
enter a written order, despite indicating at the sanctions hearing that it
planned to do so. But the oral injunction was not tentative, and the district
court did not indicate that the sanction was open to further argument or
reconsideration. Rather, the district court asked the BOP to affirm that it
understood the scope of the injunction. The court also made clear that the
injunction would be effective immediately and stated that, “after today, if some
individual in BOP were to execute their duty in a manner in violation of this
Court’s findings, it would be individual liability.”
      The BOP understandably interprets this order to signify that its officials
are now operating under the threat of individual contempt sanctions. We have
previously affirmed a contempt sanction for the violation of an oral injunction,
where the contemnor was aware of the injunction and “in fact considered




                                        6
     Case: 18-50512       Document: 00514873161          Page: 7     Date Filed: 03/14/2019



                                       No. 18-50512
himself bound by” it. In re Bradley, 

, 263 (5th Cir. 2009). 3 The
immediate effect of the district court’s order distinguishes this case from
contempt sanctions that we have held to be non-final, such as monetary
sanctions in an amount yet to be determined. See Thornton v. General Motors
Corp., 

, 453 (5th Cir. 1998) (holding that an order suspending
attorney from practice effectively immediately was an appealable final
sanction, but an order imposing unquantified attorney’s fees was not final); see
also Cruz v. Fulton, 714 F. App’x 393, 396 (5th Cir. 2018) (finding no
jurisdiction because “the dollar amount of contempt sanctions remains yet to
be determined”). Under these circumstances, the district court’s failure to put
its injunction in writing does not render its order non-final.
       We note that it is highly unusual for a district court to make a finding of
contempt and to issue a contempt sanction without entering a written order
explaining the basis for its findings and describing the sanction imposed. These
omissions are relevant to the merits of this appeal. But a lack of procedural
formality does not shield a district court’s final decisions from appellate review
under 28 U.S.C. § 1291. 4


       3       Other circuits similarly treat oral injunctions as enforceable orders. See, e.g.,
Lau v. Meddaugh, 

, 123, 123 n.2 (2d Cir. 2000); In re Charlotte Observer, 

, 48, 50 (4th Cir. 1990). We agree with the Second Circuit that, although Federal Rule
of Civil Procedure 65(d) “contemplates the issuance of a written order,” a district “court’s
failure to comply with the specific requirements of this rule does not render the injunction
void.” 

, 123 n.2; see also Test Masters Educ. Servs., Inc. v. Singh, 

, 577 (5th Cir. 2005) (explaining that a district court’s failure to fully comply with
Rule 65(d) “does not require that the injunction be reversed or vacated”) (quotation omitted).
As we noted in 

–63, the Seventh Circuit appears to take a different
position. See Bates v. Johnson, 

, 1427–28 (7th Cir. 1990) (holding that an oral
injunction is not enforceable, and therefore not appealable). We do not follow the Seventh
Circuit’s view that a party “is under no judicial compulsion” until a judge “record[s] an
injunction or declaratory judgment on a separate document.” 

        4      The district court did not set out its order in a separate document as required
by Federal Rule of Civil Procedure 58(a). But this “failure to set forth a judgment or order on
a separate document when required by [Rule] 58(a) does not affect the validity of an appeal
from that judgment or order.” FED. R. APP. P. 4(a)(7)(B); see also Moreno v. LG Electronics,
                                               7
     Case: 18-50512      Document: 00514873161        Page: 8     Date Filed: 03/14/2019



                                     No. 18-50512
                                           III.
      “We review contempt orders and sanctions imposed under a court’s
inherent powers for an abuse of discretion.” United States v. City of Jackson,
Miss., 

, 731 (5th Cir. 2004). A district court’s inherent power to
sanction contempt “is not a broad reservoir of power, ready at an imperial
hand, but a limited source; an implied power squeezed from the need to make
the court function.” NASCO, Inc. v. Calcasieu Television and Radio, Inc., 

, 702 (5th Cir. 1990); see also Crowe v. Smith, 

, 226 (5th
Cir. 1998). As “inherent powers are shielded from direct democratic controls,
they must be exercised with restraint and discretion.” Roadway Express, Inc.
v. Piper, 

, 764 (1980). The contempt power is not an appropriate
means for a district court to express its reasoned disagreement with a federal
statute. Threatening government officials with individual contempt sanctions
for complying with federal law, as the district court did here, is a clear abuse
of discretion.
                                            A.
      We first briefly review the legal framework governing the calculation of
sentencing credits. The Sentencing Reform Act of 1984 provides:
      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.


USA Inc., 

, 696–97 (5th Cir. 2015) (noting that Rule 4, as amended, states that
a failure to comply with Rule 58(a) does not affect the validity of the appeal).
                                            8
    Case: 18-50512     Document: 00514873161        Page: 9    Date Filed: 03/14/2019



                                   No. 18-50512
18 U.S.C. § 3585(b).
      The Supreme Court has squarely held that § 3585(b) “does not authorize
a district court to compute the credit at sentencing.” United States v. Wilson,

, 334 (1992). This responsibility belongs to the Attorney General,
acting through the BOP. 

see also Leal v. Tombone, 

, 428
(5th Cir. 2003). The BOP’s procedures for calculating credit under § 3585(b)
are set out in its Sentence Computation Manual. See U.S. Dep’t of Justice,
Federal Bureau of Prisons Program Statement No. 5880.28 (July 20, 1999). 5
      Confusion sometimes arises, as it did here, when a defendant requests
that the district court award credit for time served and the court purports to
grant or deny this request at sentencing. Because the district court lacks the
authority to award or deny credit, the BOP is not bound by its decision. See,
e.g., Mehta v. Wigen, 597 F. App’x 676, 680 (3d Cir. 2015) (holding that the
BOP erred in denying credit under § 3585(b) based on the sentencing court’s
intent). The sentencing court does “retain residual authority” to consider a
defendant’s time in custody. United States v. Hankton, 

, 792 (5th
Cir. 2017). If the court determines that the BOP will not credit a defendant’s
prior time served, the court can reduce the defendant’s sentence under
§ 5G1.3(b) or § 5K2.23 of the U.S. Sentencing Guidelines. 

district
court must calculate the defendant’s final sentence itself; it cannot simply
order the BOP to award credit. Moreover, neither of these Guidelines
provisions authorizes a district court to increase a defendant’s sentence to deny
credit that the defendant is otherwise entitled under § 3585(b).
      District courts also “have discretion to select whether the sentences they
impose will run concurrently or consecutively with respect to other sentences
that they impose, or that have been imposed in other proceedings, including


      5     The Manual is available at https://www.bop.gov/policy/progstat/5880_028.pdf.
                                          9
    Case: 18-50512       Document: 00514873161          Page: 10     Date Filed: 03/14/2019



                                      No. 18-50512
state proceedings.” Setser v. United States, 

, 236 (2012). The
Supreme Court has held that a district court may order that a federal sentence
run consecutively to an anticipated but not yet imposed state sentence. 

Yet the authority to choose a concurrent or consecutive sentence
presupposes the existence of another sentence. If a prisoner completes his
federal sentence before another sentence is imposed, the BOP lacks the
authority to hold him beyond his release date. 6 See 18 U.S.C. § 3624(a) (“A
prisoner shall be released by the Bureau of Prisons on the date of the expiration
of the prisoner’s term of imprisonment,” less credit for satisfactory behavior).
                                             B.
       We next review the district court’s contempt finding. “A party commits
contempt when he violates a definite and specific order of the court requiring
him to perform or refrain from performing a particular act or acts with
knowledge of the court’s order.” Waste Mgmt. of Wash., Inc. v. Kattler, 

, 341 (5th Cir. 2015) (quoting Hornbeck Offshore Servs., LLC v. Salazar,

, 792 (5th Cir. 2013)). Contempt findings must be supported “by
clear and convincing evidence: 1) that a court order was in effect, 2) that the
order required certain conduct by the respondent, and 3) that the respondent
failed to comply with the court’s order.” Am. Airlines, Inc. v. Allied Pilots Ass’n,

, 581 (5th Cir. 2000) (quotation omitted); see also Waste Mgmt. of

. The district court’s factual findings are reviewed “for
clear error and its underlying conclusions of law de novo.” City of 

.
       The district court made no explicit factual findings to support its decision
to hold the BOP in contempt. Nor did it identify which specific court orders the


       6      If a prisoner is convicted on a state charge while still in BOP custody, the BOP
will generally withdraw double credit for time served in state custody. See Sentence
Computation Manual at p. 1 – 24B.
                                             10
    Case: 18-50512    Document: 00514873161      Page: 11    Date Filed: 03/14/2019



                                  No. 18-50512
BOP violated, notwithstanding the BOP’s “request that the Court clarify its
order to reflect such findings as to how and when the Respondents violated an
order of th[e] court.” The district court’s refusal to identify the basis for its
contempt finding was in itself an abuse of discretion.
       Moreover, we can identify no evidence in the record to support the
conclusion that the BOP violated a “definite and specific” court order. Waste
Mgmt. of 

. In light of its statements at the show cause
hearing, the district court appears to have deemed the BOP in contempt of
several of its revocation judgments. But the court did not identify any
particular judgment that specifically instructed the BOP not to award credit
for time served under 18 U.S.C. § 3585(b). The court instead expressed its view
that the BOP should have interpreted the imposition of a consecutive sentence
to disallow credit for time served in state custody, even if no state sentence had
yet been imposed. As outlined above, such an interpretation is inconsistent
with the statute and the Supreme Court’s holding in 

.
The BOP did not violate a court order by implementing the revocation
judgments according to governing law.
                                        C.
      Even if the district court had not erred in holding the BOP in contempt,
the sanction imposed is contrary to law. The court ordered, in its cases only,
that the BOP not award credit under 18 U.S.C. § 3585(b)(2) for time served in
state detention when the district court imposes a consecutive sentence. This
injunction is inconsistent with the mandatory language of § 3585(b), which
states that “[a] defendant shall be given credit” if he meets the statutory
requirements. As the Supreme Court has explained, “Because the offender has
a right to certain jail-time credit under § 3585(b), and because the district court
cannot determine the amount of the credit at sentencing, the Attorney General


                                        11
   Case: 18-50512     Document: 00514873161     Page: 12   Date Filed: 03/14/2019



                                 No. 18-50512
has no choice but to make the determination as an administrative matter when
imprisoning the defendant.” 

(emphasis added).
      Given the district court’s lack of authority over credit awards, it was
improper to order the BOP to deny custody credits required by statute. The
district court’s error was compounded by its threat to hold BOP officials in
individual contempt for fulfilling their statutory duties. Because the injunction
exceeds the district court’s legal authority, we need not address the BOP’s
alternative argument that it fails to comply with the specificity requirements
of Federal Rule of Civil Procedure 65(d)(1).
                                      IV.
      For the foregoing reasons, the district court’s contempt finding and
injunction are REVERSED.




                                       12