Nunc Pro Tunc Designation of a State Institution for Service of a Federal Sentence (Program Statement 5160.06)

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Field	Value
Program Statement	5160.06
Subject	Designation of State Institutions for Service of Federal Sentence
Effective / current edition	09-03-2026
Change notices	None. PS 5160.06 is a full reissue, not a change notice.
Supersedes	PS 5160.05, Designation of State Institution for Service of Federal Sentence (1/16/2003), rescinded — PS 5160.06 at p. 1. PS 5160.05 had itself replaced PS 5160.04 (4/19/00).
Governing statute	18 U.S.C. § 3621(b) (the Bureau’s placement authority, quoted with its five factors in the PS at pp. 2–3) · 18 U.S.C. § 3584 (concurrent and consecutive terms) · 18 U.S.C. § 3585 (commencement of sentence and credit for prior custody). For offenses committed before Nov. 1, 1987 the PS points to the repealed 18 U.S.C. §§ 4082(b) and 3568.
28 C.F.R. anchor	None. No regulation in 28 C.F.R. governs concurrent designation of a state institution for an offense committed on or after Nov. 1, 1987. The Attorney General’s delegation to the Director of the Bureau is 28 C.F.R. § 0.96, but its designation paragraph, § 0.96(c), reaches only “18 U.S.C. 4082 as it existed before the enactment of Pub. L. 98-473 (applicable to offenses committed prior to November 1, 1987).” For modern sentences the authority is statutory and unimplemented by rule.
Related BP forms	None. BOP publishes no form for a nunc pro tunc request. The operative document inside the Bureau is a letter of designation from the Designation and Sentence Computation Center (PS 5160.06 at pp. 9–10). A person inside asks in writing through an Inmate Request to Staff (“cop-out”), filed electronically through TRULINCS or, if exempt, on paper form BP-A0148, then escalates on BP-9 / BP-10 / BP-11.
Official PDF	bop.gov/policy/progstat/5160_006.pdf

Checked against the BOP policy set · 2026-09-19.

Program Statement 5160.06, issued September 3, 2026 to replace PS 5160.05 (2003), is the Bureau of Prisons policy for designating a state prison as the place where a federal sentence is served — which is how a federal term and a state term end up running at the same time instead of one after the other. When the designation is made retroactively, so that the federal sentence is treated as having begun on an earlier date, it is called a nunc pro tunc designation (Latin for “now for then”), or a Barden designation after the case that established the Bureau has to consider the request.

This is the mechanism, not the arithmetic. If your question is how days in state or county custody get counted against a federal number, that is prior custody credit under 18 U.S.C. § 3585(b), and it is a different question with a different answer. The two interact constantly, so read both. Nothing on this page tells you whether a request will be granted, and nothing here predicts a release date. The decision is discretionary, and discretionary means discretionary.

The rule itself: nunc pro tunc designation

Everything quoted in this section is transcribed from the Bureau’s own text of PS 5160.06 at bop.gov/policy/progstat/5160_006.pdf. Where the 2003 edition it replaced, PS 5160.05, said something different, we say so and cite the old text as such.

What the Bureau says its authority is

From the Designation Authority section, PS 5160.06 at pp. 2–3:

a. Statutory Authority. 18 U.S.C. § 3621(b) authorizes the Bureau of Prisons (Bureau) to designate the place of imprisonment for inmates who committed the federal offense of conviction on or after November 1, 1987. It states:

“The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-” [the five factors, quoted below] “… Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.”

The 2003 edition cut its quotation of the statute off before the five factors (PS 5160.05 at p. 2). The 2026 edition quotes them in full and makes them the test: the DSCC designates a state institution either because the federal court ordered, recommended or expressed an intention that the sentences run concurrently, or “by determining that a designation is appropriate after reviewing the five factors under 18 U.S.C. § 3621(b)” (PS 5160.06 at p. 2). Here is what 18 U.S.C. § 3621(b) says, transcribed from the United States Code as it stands today (verified current):

The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering—

– (1) the resources of the facility contemplated; – (2) the nature and circumstances of the offense; – (3) the history and characteristics of the prisoner; – (4) any statement by the court that imposed the sentence— – (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or – (B) recommending a type of penal or correctional facility as appropriate; and – (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.

Those five items are the statutory checklist. Courts reviewing denied requests describe them exactly that way — as “the following factors for the BOP to consider in making a nunc pro tunc designation.” The Bureau records its work on an internal Factors Worksheet; the Fourth Circuit described and criticized one in Mangum v. Hallembaek, discussed below.

The default rule when the judgment is silent

PS 5160.06 at p. 4:

a. Federal Sentence Imposed After a Non-Federal Sentence. If the federal sentence was imposed after a non-federal sentence had already been imposed, and the federal court did not state whether its term is to run consecutively or concurrently, the Bureau interprets the federal sentence to run consecutively pursuant to 18 U.S.C. § 3584(a). However, 18 U.S.C. § 3584(a) applies only to federal offenses committed on or after November 1, 1987, and does not apply in situations where the federal sentence is imposed before a non-federal sentence, according to Setser.

That tracks the statute. 18 U.S.C. § 3584(a) provides: “Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Section 3584(b) adds that in choosing between them the court “shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).”

Two sentences imposed at the same time default to concurrent. Two sentences imposed at different times — the ordinary federal-and-state situation — default to consecutive. That default is the reason this Program Statement exists. The 2026 edition adds the other half, following Setser: where the federal sentence came first and the judgment is silent about a later state sentence, “the Bureau will consider the federal sentence to commence consistent with the statutory language of 18 U.S.C. § 3585(a),” and it “will update the commencement date if the federal sentencing court subsequently orders or recommends the federal sentence to run concurrently with the non-federal sentence” (PS 5160.06 at p. 4).

When the Bureau will not designate

The policy states two situations in which a concurrent designation is ordinarily off the table. The first is a statutory mandate, PS 5160.06 at p. 9:

d. Statutory Prohibitions Against Concurrent Designation. Concurrent designation is not generally considered when statutory language mandates consecutive service of a sentence. For example, offenses under 18 U.S.C. § 924(c), 18 U.S.C. § 1028A, and 18 U.S.C. § 3146 must be served consecutively. However, if the federal court orders one of these sentences to run concurrently with another term, the Bureau will follow the court’s order and correspondence will be sent to advise the court of the statutory prohibition.

The 2003 edition also barred concurrent designation where the U.S. Sentencing Guidelines required consecutive service (PS 5160.05 at p. 3); the 2026 edition drops that clause. The second situation is a court that has already decided, PS 5160.06 at p. 7:

(8) The Bureau will not allow a concurrent designation if the federal sentencing court has already made a determination regarding the order of service of sentence (e.g., the federal sentencing court ordered the sentence to run consecutively to any other sentence, or custody in operation, during any time in which the inmate requests concurrent designation).

The 2003 edition carried a third, narrower refusal, set off as a note (PS 5160.05 at p. 7); the 2026 edition does not repeat it:

Note: The Bureau will not, under ordinary circumstances, such as overcrowding in a state institution, accept transfer of the inmate into federal custody for concurrent service.

Who decides, and on what factors

The 2026 edition moves the decision to the Designation and Sentence Computation Center. PS 5160.06 at p. 3, transcribed exactly:

b. Delegation to DSCC Sentence Computation Section Chief. The DSCC Sentence Computation Section Chief is delegated the Bureau’s authority to designate a state institution for concurrent service of a federal sentence. The DSCC Sentence Computation Section Chief’s authority is delegated to the DSCC Operations Managers.

Designating an inmate to a non-federal institution results in the commencement of the federal sentence based on the authority and intent of the federal sentencing court to run the federal sentence concurrently with a state sentence. Following the United States Supreme Court’s decision in Setser v. United States, 566 U.S. 231(2012), the Bureau does not have the authority to independently determine whether an inmate’s sentence should run consecutively or concurrently with another sentence under 18 U.S.C. § 3621(b).

The 2003 edition vested this authority in the Regional Directors and gave staff a six-item list for “exceptions”: discipline history, institutional adjustment, the Wardens’ recommendations, the prosecutor’s recommendation, the sentencing court’s intent “if available,” and any other pertinent information (PS 5160.05 at p. 4). That list is gone, and so is the Regional Director’s role: the Summary of Changes “[e]liminates role of Regional Director in granting or denying concurrent designation requests from inmates and states” (PS 5160.06 at p. 1). The test now is the five statutory factors in § 3621(b), quoted above. Nothing in the policy is a scored point value. There is no worksheet published with the policy and no numeric threshold. This is a narrative record, which is exactly why what goes into it matters.

The four ways the sentencing court’s intent gets established

PS 5160.06 at p. 5 frames the inquiry:

When an inmate is sentenced in both federal and state jurisdictions, care must be taken to ensure that he or she is suitable for federal designation. Normally, designating a non-federal institution for the inmate is done when it is consistent with the federal sentencing court’s intent. Ordinarily, this intent is made known in one of the following ways:

The policy then lists four. Each is transcribed below with its pin-cite. (The 2003 edition listed a fifth, a request from a state, which the 2026 edition eliminates.)

(1) Court Order — PS 5160.06 at p. 5.

a. Court Order. A sentencing court may order on the J&C, that the federal sentence be served concurrently with a state sentence. The court may clarify its intent by using language similar to:

– “Said sentence to run concurrently with the state sentence the defendant is presently serving.” – “Sentence to run concurrently with sentence imposed under Docket 168-88, San Diego County Court, on May 14, 2008.” – “Sentence is hereby ordered to run concurrently with any other sentence presently being served.” – “Sentence to begin immediately.” – “Said sentence to run concurrently with any state sentence presently being served, or any state sentence imposed in the future.”

Those five sample phrasings are the Bureau’s own model language. They belong in the hands of anyone still standing in front of a sentencing judge.

(2) Court Recommendation of Non-Federal Confinement — PS 5160.06 at p. 5.

b. Court Recommendation of Non-Federal Confinement. The sentencing court may recommend a non-federal institution as the place of confinement on the J&C. Most J&Cs have a preprinted area for recommendations with language similar to, “The court makes the following recommendations to the Bureau of Prisons…” If the inmate was in primary non-federal custody (i.e., produced in federal court on writ), and the court uses the preprinted phrase and adds the name of a state institution, this will be accepted as a court recommendation for concurrent service. This wording could also appear in the body of the J&C.

(3) Court Order or Recommendation for Concurrent Service of Sentence After Imposition — PS 5160.06 at pp. 5–6.

c. Court Order or Recommendation for Concurrent Service of Sentence After Imposition. The sentencing court may order or recommend concurrent service of the federal sentence at some time after its imposition. This may occur when primary jurisdiction resided with the state and the court believed that the inmate was in federal custody for service of the federal sentence on the date of imposition. Pursuant to Setser, the Bureau follows court orders or recommendations regarding concurrent service of a federal term regardless of when the court makes the recommendation or issues the order.

(4) Inmate Request — PS 5160.06 at p. 6. This is the nunc pro tunc route, and the paragraph that names the case:

d. Inmate Request. Occasionally, an inmate may request a nunc pro tunc (i.e., occurring now as though it had occurred in the past) designation. As a result of the decision in Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), the Bureau considers an inmate’s request for credit toward a federal sentence for time spent in state custody and credited to a state sentence, as a request for a nunc pro tunc designation.

(5) State Request — 2003 edition only, PS 5160.05 at p. 7. The 2026 edition “[e]liminates procedure for processing state requests to Regional Offices for the state and federal sentences to be served concurrently” (PS 5160.06 at p. 1). The rescinded text read:

(5) State Request. Occasionally, a Regional Office receives a request from a state jurisdiction indicating that the state and federal sentences are to be served concurrently, whether by state court order or department of corrections referral.

(a) The RISA will gather and review all information pertaining to the federal and state sentences. After reviewing this information carefully, if necessary, the RISA will correspond with the federal sentencing court to ascertain whether it has any objections to the federal and state sentences running concurrently. A courtesy copy of this correspondence will be forwarded to the appropriate U.S. Attorney. (The same procedures apply as outlined in subsections 4.c. and d., Inmate Request.)

(b) If the court has no objections, the state institution may be designated as the place to serve the federal sentence concurrently with the state sentence, according to the procedures detailed in this Program Statement.

The nunc pro tunc procedure itself

PS 5160.06 at pp. 6–7, transcribed in full except item (8), quoted above — this is the sequence a request actually travels:

(1) In Barden, the court held that the Bureau must consider an inmate’s request. However, there is no obligation under Barden for the Bureau to grant the request by designating a state institution retroactively as the place to serve the federal sentence.

(2) This type of request will be considered regardless of whether the inmate is physically located in either a federal or state institution. Information will be gathered, if available, to include: – a copy of the federal and state judgments – the state sentence data record to include jail credit and release dates, and – any other pertinent information relating to the federal and state sentences.

(3) In making the determination as to whether a designation may be appropriate (e.g., the federal sentence is imposed first and there is no order or recommendation regarding the service of the sentence in relationship to the yet to be imposed state term), the DSCC Sentence Computation Section Chief will send a letter to the federal sentencing court inquiring as to the court’s position regarding a retroactive designation. The appropriate U.S. Attorney’s Office and U.S. Probation Office will receive a courtesy copy.

(4) In Setser, the United States Supreme Court held that the authority to order a federal sentence concurrent or consecutive to a yet-to-be-imposed state sentence rests with the federal sentencing court, and that 18 U.S.C. § 3584(a) did not apply in situations where the federal sentence was imposed before a non-federal sentence. Furthermore, the Court held in this case that 18 U.S.C. § 3621(b) did not give the Bureau authority to make independent concurrent vs. consecutive determinations.

(5) In Dotson v. Kizziah, 966 F.3d 443, (6th Cir. 2020), the Sixth Circuit Court of Appeals further clarified that the Bureau must make a designation decision after seeking the position of the federal sentencing court, based on its review of the five factors under 18 U.S.C. § 3621(b), listed under the Section 2a of this program statement, when a federal district court sentences before a state that has primary jurisdiction, and the federal J&C is silent. This designation decision effectively determines when the federal sentence commences pursuant to 18 U.S.C. § 3585(a), and therefore resolves the question as to whether the federal and state sentences are run concurrently or consecutively.

(6) If, after at least 60 days, a response is not received from the federal sentencing court, the DSCC Sentence Computation Section Chief reviews the five factors under 18 U.S.C. § 3621(b) and makes a designation decision which is documented in the inmate’s electronic file. DSCC staff will notify the inmate of the decision in writing and save a copy in the inmate’s electronic file. Any response by the federal court will be considered in the review of the five factors under 18 U.S.C. § 3621(b), listed under the Section 2a of this program statement.

(7) No letter needs to be written if it is determined that a concurrent designation is not appropriate. If the federal sentencing court has previously ordered, recommended, or made clear its intention for the consecutive service of the federal sentence, a letter to the court will not be needed.

Four things in that passage do real work, and each one is a place where a request goes wrong.

• The letter to the sentencing court is not automatic. Item (7) tells staff that “[n]o letter needs to be written if it is determined that a concurrent designation is not appropriate.” The threshold judgment happens before the court is ever asked.
• Sixty days of silence is not a denial. Under item (6), if the court does not answer within at least 60 days, the DSCC Sentence Computation Section Chief reviews the five § 3621(b) factors and decides anyway.
• A silent judgment does not end the inquiry. Under item (5), where the federal court sentenced first and the judgment says nothing about the state term, the Bureau must seek the court’s position and then decide on the five factors. The 2003 edition’s separate rule for a judge who is no longer available is gone. And for people sentenced in the Fourth Circuit between December 29, 2006 and March 27, 2012, the policy’s “Mangum II” exception applies: the Bureau “shall not invoke the views of the federal sentencing court, and shall weigh heavily the state court’s desire” (PS 5160.06 at pp. 7–8).
• The decision comes to you in writing, and a copy goes in your electronic file. That written notification is the document you need before anything else can be argued.

What actually happens if a designation is made

PS 5160.06 at pp. 9–10, the mechanics:

8. a. Designation. If an inmate has released from a state sentence, and is in exclusive federal custody, the DSCC may make a “nunc pro tunc” designation to the non-federal institution by using a letter of designation from the DSCC Sentence Computation Section Chief, as delegated to the DSCC Operations Manager, to be saved in the inmate’s electronic file.

b. Considerations in Sentence Computation. When a nunc pro tunc designation is made, the DSCC conducts a thorough review of jail credit, as outlined in the sentence computation manuals. […]

By action of a nunc pro tunc designation, the federal sentence may commence either on the date of its imposition, or on a subsequent date.

As part of the designation process, a date is specified nunc pro tunc (i.e., occurring now as though it had occurred in the past) as the effective date the federal sentence will have begun. Specifying a nunc pro tunc designation ensures that time lost in administrative processing is not passed on to the inmate. This designation allows the federal sentence to commence under 18 U.S.C. § 3585(a).

9. a. Designation and Notification to the United States Marshal Service (USMS). If an inmate is in exclusive state custody with pending state charges, or in service of the state sentence, the DSCC may make a nunc pro tunc designation to the non-federal institution using a letter of designation to the USMS.

And the constraint on the effective date, PS 5160.06 at p. 10:

As the order or recommendation for concurrent service is ordinarily received after the imposition of sentence, the nunc pro tunc designation is normally effective from the date the federal sentence was imposed, unless a later date is entered. If the nunc pro tunc designation results in a date that makes the inmate “past due” for release, such designation will be retroactive to a point in time that the sentence, when calculated in the same manner as any other sentence, results in a release date that gives the institution time for normal release processing.

The 2003 edition named that jail-credit review “Willis/Kayfez” (PS 5160.05 at p. 8); the 2026 edition calls it “a thorough review of jail credit, as outlined in the sentence computation manuals” (PS 5160.06 at p. 9). The names refer to two narrow judge-made exceptions to the bar on double-counting custody credit, named for Willis v. United States, 438 F.2d 923 (5th Cir. 1971), and Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993). They are sentence-computation doctrines, they only ever apply to sentences already running concurrently, and they are covered on our prior custody credit page and in the Sentence Computation Manual explainer. What matters here is the sequencing: a granted designation does not end the work. It triggers a fresh credit review.

The one document you will never see, and the one you might

The 2003 edition printed its designation letter as Attachment A (PS 5160.05 at p. 13), a fill-in-the-blank form addressed to a U.S. Marshal and a state department of corrections and signed by the Regional Director. PS 5160.06 prints no sample; the designation is now a “letter of designation” from the DSCC (at pp. 9–10). The old form’s body read, in the Bureau’s own words:

The United States District Court that sentenced the above individual recommended that the federal sentence run concurrently with the state sentence. To make this possible, I have designated the above facility for service of the federal sentence.

Please lodge and maintain a detainer with the local authorities for the duration of the federal sentence. The date indicated above is the projected release date.

And its closing line to the state, which still explains a great deal about daily life for someone in this posture (PS 5160.06 says the same in its own text: “decisions regarding confinement and classification are at the discretion of state authorities,” at p. 11):

STATE CORRECTIONAL AUTHORITY: This is for notification purposes only and does not limit your discretion in any decision affecting this offender’s classification, work, and quarters assignments or other treatment and programs.

The document you will see is your sentence data. Under PS 5160.06 at p. 11, for someone in state custody the Regional Correctional Programs Office sends the DSCC’s letter and “the Public Information Inmate Data from the applicable Bureau inmate management system” to the state department of corrections, the U.S. Marshals Service and, if appropriate, the U.S. Parole Commission, and that data “is also mailed to the inmate.” (The 2003 edition called it the sentence computation data sheet, PS 5160.05 at p. 8.)

What binds and what does not in PS 5160.06

This distinction decides what you can actually do with this policy, so it goes near the front rather than buried.

A Program Statement is the Bureau’s internal instruction to its own staff. It is not a regulation. The Supreme Court said so directly in Reno v. Koray, 515 U.S. 50 (1995), noting that the interpretation “appears only in a ‘Program Statement]’ — an internal agency guideline — rather than in ‘published regulations subject to the rigors of the Administrative Procedure] Act, including public notice and comment,'” and that such a guideline “is still entitled to some deference” as “akin to an ‘interpretive rule’ that ‘do[es] not require notice and comment.'” So when this page says the policy “directs staff” to do something, that is precise language, not hedging.

PS 5160.06 is an unusual case, because there is no regulation underneath it at all. Search 28 C.F.R. and you will not find a rule governing concurrent designation of a state institution for a modern federal sentence. The Attorney General’s delegation to the Director at 28 C.F.R. § 0.96(c) covers “[d]esignating places of imprisonment or confinement where the sentences of prisoners shall be served and ordering transfers from one institution to another, whether maintained by the Federal Government or otherwise” — but only “pursuant to 18 U.S.C. 4082 as it existed before the enactment of Pub. L. 98-473 (applicable to offenses committed prior to November 1, 1987).” For everything after that date, the authority is the statute, and the statute alone.

What binds, then, is § 3621(b) and the case law construing it. Three decisions carry this area.

The obligation to consider is real. In Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990), the Third Circuit held: “We agree with Barden that the federal government has the statutory authority to make the nunc pro tunc designation Barden desires. On this record, Barden is entitled to a writ of habeas corpus to compel the Bureau to consider his case. We do not pass upon Barden’s contention that he is entitled to a favorable exercise of the broad discretion the Federal Bureau of Prisons (Bureau) has in acting on his request. Instead, we hold only that the federal authorities have an obligation, on the peculiar facts before us, to look at Barden’s case and exercise the discretion the applicable statute grants the Bureau.” The court was explicit about the Bureau’s error: “Instead of exercising the discretion the Attorney General had given it under old § 4082(b), the Bureau concluded it had none because the federal sentencing judge did not order concurrency. This is wrong.” Barden also made clear that the state court’s view does not control: “neither the federal courts nor the Bureau are bound in any way by the state court’s direction that the state and federal sentences run concurrently.”

Reasoned consideration, not a rubber stamp. In Mangum v. Hallembaek, 910 F.3d 770 (4th Cir. 2018), the Fourth Circuit sent a nunc pro tunc denial back a second time, holding that the Bureau could not rest on the views of a sentencing judge who, under then-binding circuit law, had been powerless to order a consecutive term. The court directed that on remand “the BOP shall not invoke the views of the federal sentencing court and shall weigh heavily the state court’s desire for concurrent sentences in the course of conducting a full and proper evaluation of all relevant factors under 18 U.S.C. § 3621(b).” It also stated the standard plainly: “any definition of an arbitrary and capricious determination by an administrative agency such as the BOP would include within it the agency’s invocation of a presumed intention on the part of a federal sentencing judge to do that which he was powerless to do under binding circuit precedent at the time he imposed a sentence.” Mangum is careful to preserve the Bureau’s discretion — “the BOP is not bound by the state court’s sentencing preference in the nunc pro tunc analysis” — while insisting that the Factors Worksheet actually show its work.

Where the sentencing judge’s power begins. In Setser v. United States, 566 U.S. 231 (2012), the Supreme Court held that a federal district court has authority “to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.” The Court rejected the argument that § 3621(b) hands that call to the Bureau: § 3621(b) “is a conferral of authority on the Bureau of Prisons, but does not confer authority to choose between concurrent and consecutive sentences.” Setser also mapped the route for a prisoner whose sentence turns out differently than the judge assumed: “Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment… If the Bureau initially declines to do so, he may raise his claim through the Bureau’s Administrative Remedy Program. See 28 CFR § 542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus. See 28 U. S. C. § 2241. We express no view on whether those proceedings would be successful.” PS 5160.06 now writes Setser, Mangum and a fourth decision, Dotson v. Kizziah, 966 F.3d 443 (6th Cir. 2020), into its own text (at pp. 3–4, 6–8).

That last sentence is the honest posture for this entire page. There is a route. Nobody, including the Supreme Court, will tell you where it ends.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The single most consequential moment in a nunc pro tunc case usually happens before anyone is in prison — at the federal sentencing hearing, in the wording of the judgment. PS 5160.06 at p. 5 prints the Bureau’s own model phrasings, and they are short: “Said sentence to run concurrently with the state sentence the defendant is presently serving.” A judgment that says that is implemented. A judgment that is silent produces a consecutive default under § 3584(a) and years of administrative correspondence. If a state case is pending or a state sentence is already imposed, the concurrency language belongs in the judgment, on the record, in terms specific enough that a Bureau analyst reading it eight years later in Grand Prairie does not have to guess.

What nunc pro tunc designation means for you

If you are the person inside: ask in writing, and ask the right office

Ask in writing, and ask the right office. The starting document is an Inmate Request to Staff — universally called a “cop-out,” and now filed electronically through TRULINCS, or on paper form BP-A0148 if you are exempt — addressed to your unit team and, in parallel, to the institution’s Correctional Systems or Inmate Systems staff, asking that a request for a nunc pro tunc designation under PS 5160.06 be submitted on your behalf. Say those words. “I want credit for my state time” is read as a credit question under § 3585(b) and routed to a computation clerk. The Bureau’s own policy at p. 6 says a request for credit for time spent in state custody and credited to a state sentence is treated as a nunc pro tunc request, but you do not want that translation happening by accident.

Send the record with it. The policy at p. 6 tells staff to gather “a copy of the federal and state judgments,” “the state sentence data record to include jail credit and release dates,” and “any other pertinent information relating to the federal and state sentences.” If you have a state court transcript in which the judge said the sentences were to run together, that is pertinent information. If your state judgment recites concurrency, that is pertinent information. Do not assume the Bureau will find documents you can supply.

Expect it to be slow, and expect the sentencing court to be asked. Under pp. 6–7, the letter to chambers carries a window of at least 60 days, and courtesy copies go to the U.S. Attorney’s Office and U.S. Probation. Nothing in the policy sets a deadline for the Bureau’s own decision. What the policy does promise is written notice: “DSCC staff will notify the inmate of the decision in writing and save a copy in the inmate’s electronic file” (at p. 7). Get that letter. Keep it. Every later step is built on it.

Two things will not help. Arguing that the state judge ordered concurrency, standing alone, is not enough — Barden itself says neither the courts nor the Bureau are bound by that. And if your federal judgment already ordered the sentence to run consecutively, p. 7 of the policy closes the door for the period covered by that order.

If you are the family member: the shape of the problem

Here is the shape of the problem, because it is genuinely confusing from the outside. Two different governments are holding one person. Whichever one arrested him first ordinarily has what the law calls primary jurisdiction, and it keeps that priority even while he is physically sitting in a federal courthouse. When federal marshals borrow someone from a state jail on a writ of habeas corpus ad prosequendum, he is on loan. The D.C. Circuit put it plainly in Crawford v. Jackson, 589 F.2d 693 (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,” and “[f]ailure to release a prisoner does not alter that ‘borrowed’ status, transforming a state prisoner into a federal prisoner.”

That is why a person can sit in a federal jail for a year, be sentenced in federal court, and have the federal clock not start. Under 18 U.S.C. § 3585(a), “[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.” It is not a mistake and it is not somebody being difficult. It is the default.

What you can usefully do: build the paper file that nobody else is building. Both judgments. The state sentencing transcript. The state department of corrections time sheet. Any letter the family has received. Dates, with sources. When a request finally gets assembled, the difference between a thin file and a complete one is often the difference between a real decision and a form denial. And understand where the decision is actually made — not at the prison. Designation and sentence computation for the federal system run through the Designation and Sentence Computation Center in Grand Prairie, Texas.

If you are counsel: nunc pro tunc designation

Three practical points.

At sentencing, say it on the record and put it in the judgment. After Setser, the district court has authority to order a federal term consecutive to — or concurrent with — an anticipated state sentence that has not yet been imposed. The corollary is that silence is now a choice with consequences, and § 3584(a)’s consecutive default fills the gap. PS 5160.06 at p. 5 supplies the Bureau’s preferred phrasings; use one of them verbatim. If concurrency is intended only as to a specific state docket, name the docket and the county, the way the Bureau’s own second example does. See our page on the federal sentencing hearing.

Post-sentencing, the letter from the Bureau is the case. When the Designation and Sentence Computation Center writes to chambers under p. 6, a response from the sentencing judge is considered in the review of the § 3621(b) factors, including § 3621(b)(4) (PS 5160.06 at p. 7). The absence of a response is not neutral — after at least 60 days it hands the decision back to the agency (at p. 7). Where a client’s file will benefit from a judicial statement, the time to seek one is while the inquiry is pending, not after the denial.

Build the administrative record before habeas. Setser names the sequence: request, Administrative Remedy Program, then § 2241. Mangum shows what the record has to contain for review to have anything to work with — a Factors Worksheet that, on its face, addresses the five statutory factors and explains what outweighed what. Request the worksheet and the correspondence with chambers. Where staff will not produce them, the route is a Freedom of Information Act or Privacy Act request. Read the current § 3621(b) before filing: the First Step Act added a sentence stating that “a designation of a place of imprisonment under this subsection is not reviewable by any court,” and its effect on Barden review is unsettled. That is addressed under What changed, below, and flagged for review at the end of this page.

What changed from PS 5160.04 to 5160.05 to 5160.06

PS 5160.05, dated 1/16/2003, rescinded PS 5160.04 (4/19/00) — PS 5160.05 at p. 1. Its own Summary of Changes at p. 1 was a single sentence: “This policy has been rewritten to comply with the ‘Plain Language’ initiative.” No substantive change. It then stood for twenty-three years; the June 22, 2026 mass reissue of 23 program statements did not reach it. PS 5160.06, dated September 3, 2026 and approved by Director William K. Marshall III, rescinded it. Its Summary of Changes (at p. 1) adds duties for DSCC staff; adds the five § 3621(b) factors to the DSCC review; gives the DSCC Sentence Computation Section Chief final authority to designate a state institution; adds Setser, Mangum v. Hallembaek and Dotson v. Kizziah; eliminates the Regional Offices’ duties in the designation process, the Regional Director’s role in granting or denying concurrent designation requests, the Institution Supplement requirement and the procedure for state requests; and updates the procedures for nunc pro tunc designations for people in federal or state custody.

Before that reissue, the world around the 2003 text had moved four times. The 2026 edition catches up with most of it.

The offices in the 2003 policy no longer exist under those names. PS 5160.05 handed the work to the Regional Inmate Systems Administrator (RISA), routed notifications through the Community Corrections Manager (CCM), and vested final authority in the Regional Director. All three had been overtaken. PS 5100.08 CN-3, Inmate Security Designation and Custody Classification, records at p. 7 that its revision incorporated “procedural changes such as the movement of most designation/redesignation functions (04-08-17) to the Designation and Sentence Computation Center (DSCC), Grand Prairie, Texas.” And PS 5140.44, Transfer of a Prisoner to State Custody Prior to Release from the Federal Sentence (2/16/2024), states in its own Summary of Changes at p. 2 that “[t]he Senior Deputy Assistant Director, Designation and Sentence Computation Center (SDAD, DSCC) now has the authority to approve transfers of federal inmates to state officials and to designate a state department of corrections as a place of imprisonment where an inmate will serve a federal sentence,” and lists three renamings outright: “Regional Inmate Systems Administrator changed to Regional Correctional Programs Office (RCPO),” “Inmate Systems Manager changed to Case Management Coordinator (CMC),” and “Community Corrections Manager changed to Residential Reentry Manager (RRM).” Read the two together and the practical answer, even before the reissue, was that the office applying the 2003 standard was the DSCC at Grand Prairie. PS 5160.06 now says so in terms: the DSCC Sentence Computation Section Chief decides (at p. 3), and the Regional Correctional Programs Office handles the regional follow-up (at pp. 10–12). Our explainers are Security Designation and Custody Classification and Transfer of a Prisoner to State Custody Prior to Release.

Setser resolved a question the 2003 policy assumed away. PS 5160.05 at p. 6 described as a paradigm case one where “the federal sentence is imposed first and there is no order or recommendation regarding the service of the sentence in relationship to the yet to be imposed state term.” In 2012, Setser held that the federal judge may in fact speak to that future state sentence. That does not make the policy wrong, but it changes what a silent judgment means: before Setser, in several circuits, silence could reflect a judge who believed he had no power; after Setser, silence reflects a choice. Mangum turns on exactly that distinction and is the reason it matters which side of 2012 a sentencing falls on. PS 5160.06 now builds Setser in (at pp. 3–4, 6), adds Dotson v. Kizziah for the silent-judgment case (at pp. 6–7), and writes in a Mangum exception for Fourth Circuit sentencings between December 29, 2006 and March 27, 2012 (at pp. 7–8).

The First Step Act rewrote § 3621(b), and the 2003 policy quoted the old version. The text PS 5160.05 quoted at p. 2 was the pre-2018 statute; PS 5160.06 quotes the current five factors and the new non-reviewability sentence (at pp. 2–3). Congress amended § 3621(b) in Pub. L. 115-391, § 601, on December 21, 2018. The amendment note records that § 601 “substituted in introductory provisions ‘shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.’… for ‘shall designate the place of the prisoner’s imprisonment.’ and inserted at end of concluding provisions ‘Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.'” Two consequences. The five factors survived unchanged — those are still the checklist. But a non-reviewability sentence now sits at the end of the subsection that Barden construed, and how far it reaches is genuinely open. This page does not resolve it; it is flagged for attorney review below.

The related manuals had moved on. The directives PS 5160.05 referenced at pp. 1–2 included PS 5100.07 (now 5100.08), PS 5800.07 (the Inmate Systems Management Manual, now carried by the Correctional Systems Manual, PS 5800.15), and PS 7300.09. PS 5160.06 lists the Correctional Systems Manual and the three sentence computation manuals (at p. 13) — PS 5880.28 for offenses under the Comprehensive Crime Control Act, PS 5880.30 for “old law,” PS 5880.32 for D.C. Code sentences — which remain the reference for the jail-credit review, including Willis/Kayfez (at p. 9). See Sentence Computation Manual.

Where people get stuck seeking a nunc pro tunc designation

Four problems recur. Each has a route, and the route matters more than the complaint.

“I asked and nothing happened.” This is the most common failure, and it is usually a routing failure rather than a refusal. Start with a written Inmate Request to Staff — filed electronically through TRULINCS, or on paper form BP-A0148 if you are exempt — to the unit team and to Correctional Systems, using the words “nunc pro tunc designation under Program Statement 5160.06,” giving both docket numbers and both sentencing dates, and asking specifically that the request be forwarded to the Designation and Sentence Computation Center. Keep a copy. If nothing comes back, the formal ladder is the Administrative Remedy Program: BP-9 to the Warden, BP-10 to the Regional Director, BP-11 to the Office of National Inmate Appeals, under 28 C.F.R. part 542, subpart B. The clock is short — 28 C.F.R. § 542.14(a) sets “20 calendar days following the date on which the basis for the Request occurred,” and § 542.15(a) gives 20 calendar days for the BP-10 and 30 for the BP-11, with extensions “[w]hen the inmate demonstrates a valid reason for delay.” BOP publishes BP-A0148 but does not publish the BP-9, BP-10 or BP-11 forms; you get those from your unit team. See Administrative Remedy Program, Request to Staff, and our plain-language walkthrough at Prison Grievances.

The denial letter says nothing. A one-paragraph denial that recites “not consistent with the intent of the sentencing court” and stops is the single most litigated document in this area. The answer is not to argue harder in the same letter; it is to get the underlying record. Ask for the Factors Worksheet, for the letter sent to chambers under p. 6, for any response received, for the written decision the policy at p. 7 says you receive, and for your sentence computation data. Cite § 3621(b) by its five factors and ask which of them was weighed and how. That is the record Mangum found inadequate, and it is the record a court needs before it can do anything. Where staff will not produce documents, use a FOIA or Privacy Act request.

The state judge ordered concurrency and the Bureau ignored it. This is the hardest fact pattern to hear, because it feels like the Bureau is overruling a judge. It is not, quite. Under Barden, “neither the federal courts nor the Bureau are bound in any way by the state court’s direction that the state and federal sentences run concurrently” — the state court’s intent is a factor, not a command. But it is a factor that has to be weighed. Mangum held that where the federal court’s views are legally irrelevant, the Bureau “shall weigh heavily the state court’s desire for concurrent sentences.” Whether that reasoning reaches a given case depends on the circuit, the sentencing date, and whether the federal judge had authority to speak. This is a consult, not a form.

The problem is really a credit problem, or really a detainer problem. Two adjacent issues get mislabeled as designation issues. If the dispute is about which days count and whether they were already credited to the state sentence, that is prior custody credit under § 3585(b) and challenging a BOP sentence computation. If the dispute is about an untried state charge sitting on the file and blocking programming or placement, that is a detainer question under the Correctional Systems Manual and the Interstate Agreement on Detainers. Getting the label right determines who reads the paper.

Where the underlying problem is designation, sentence computation or concurrency, the administrative path is necessary but rarely sufficient on its own. Those belong in a consult — see Federal Prison Consulting Services, Federal Prison Early Release, or contact us. Exhaustion also matters if court is a possibility: under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), no action may be brought about prison conditions until available administrative remedies are exhausted. “Exhaustion” means completing every level of the internal ladder, on time, before filing.

Related BOP policy on concurrent state sentences

The paired money page is Prior Custody Credit. This page explains how a state institution gets designated for service of a federal sentence; that page covers how days in custody are counted, where the disputes come from, and what a challenge looks like. The two are read together in almost every case.

Policies that meet this one directly: Sentence Computation Manual (PS 5880.28) for the computation that follows a granted designation, including the Willis/Kayfez review. Correctional Systems Manual (PS 5800.15) for detainers, the Interstate Agreement on Detainers, and the systems side of state-federal custody. Security Designation and Custody Classification (PS 5100.08) for how designation decisions are made generally and where they are made. Transfer of a Prisoner to State Custody Prior to Release (PS 5140.44) for the mirror-image situation. Good Conduct Time (PS 5884.03) for good conduct time on the federal sentence (the 2003 edition of this policy addressed good conduct time for state concurrency cases at p. 10; the 2026 edition does not).

Routes and records: Administrative Remedy Program, Request to Staff, and FOIA and Privacy Act Requests.

Related pages on this site: BOP Grand Prairie: Designation and Sentence Computation Center, The § 2241 petition, Challenging a BOP Sentence Computation, Federal Habeas Corpus Attorney, The federal sentencing hearing, and Federal Inmate Transfer Process.

Frequently Asked Questions About Nunc Pro Tunc Designation

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Program Statement 5160.05 (rescinded) — full text

PS 5160.05 was rescinded on September 3, 2026 and replaced by PS 5160.06, summarized above and published by the Bureau as BOP Program Statement 5160.06 (PDF). The text below is the rescinded edition, kept for reference only: the Bureau’s own text of Program Statement 5160.05, reproduced in full. The Bureau no longer posts that edition on its website.

Program Statement U.S. Department of Justice Federal Bureau of Prisons OPI: CPD NUMBER: 5160.05 DATE: 1/16/2003 SUBJECT: Designation of State Institution for Service of Federal Sentence 1. PURPOSE AND SCOPE. To provide instructions for the designation of a state institution for concurrent service of a federal sentence. 2. SUMMARY OF CHANGES. This policy has been rewritten to comply with the “Plain Language” initiative. 3. PROGRAM OBJECTIVES. The expected results of this program are:

a. State institutions will be designated for concurrent

service of a federal sentence when it is consistent with the intent of the federal sentencing court or with the goals of the criminal justice system.

b. Accurate records and accountability will be maintained by

the Regional Inmate Systems Administrator (RISA) for inmates serving federal sentences in state institutions.

4. DIRECTIVES AFFECTED

a. Directive Rescinded

PS 5160.04 Designation of State Institution for Service of Federal Sentence (4/19/00)

b. Directives Referenced

PS 5100.07 Security Designation and Custody Classification Manual (9/3/99)

PS 5160.05

1/16/2003 Page 2 PS 5800.07 Inmate Systems Management Manual (12/24/91) PS 5880.28 Sentence Computation Manual-CCCA (2/21/92) PS 5880.30 Sentence Computation Manual (“Old Law” Pre-

CCCA-1984) (7/16/93)

PS 5880.32 District of Columbia Sentence Computation Manual (1/23/01) PS 7300.09 Community Corrections Manual (7/22/98)

5. STANDARDS REFERENCED

a. American Correctional Association 3rd Edition Standards for

Adult Correctional Institutions: 3-4093 and 3-4094

b. American Correctional Association 3rd Edition Standards for

Adult Local Detention Facilities: 3-ALDF-1E-02 and 3-ALDF-1E-03

c. American Correctional Association 2nd Edition Standards for

Administration of Correctional Agencies: 2-CO-1E-04 and 2-CO-1E-05 6. MCC/MDC/FDC APPLICATION. This Program Statement applies to pre-trial and holdover inmates as indicated in subsequent sections. 7. STATUTORY AUTHORITY. Authority for designating a state institution as the place to serve a federal term of imprisonment is found in 18 U.S.C. § 3621(b), which states:

“The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable . . . “.

a. For inmates who committed the underlying offense before

November 1, 1987, a similar provision is found in 18 U.S.C. § 4082(b) (repealed).

b. Federal judges have the authority to order a federal term of

imprisonment to run consecutively to or concurrently with any other sentence. When there is a previously imposed sentence (federal or non-federal) in existence at the time of federal sentencing, and the federal judge does not state whether multiple

PS 5160.05

1/16/2003 Page 3 terms of imprisonment are to run consecutively to or concurrently with one another, the sentences run consecutively (see 18 U.S.C. § 3584). (This applies only to federal offenses committed on or after November 1, 1987.)

c. When a federal judge orders or recommends a federal sentence

run concurrently with a state sentence already imposed, the Bureau implements such order or recommendation, ordinarily by designating the state facility as the place to serve the federal sentence. United States v. Hardesty, 958 F.2d 910 (9th Cir. 1992).

d. For federal offenses that occurred prior to

November 1, 1987, and there is a previously imposed sentence in existence at the time of federal sentencing and the federal judge is silent as to whether multiple terms run concurrently or consecutively, the RISA will have to research the record and make a determination regarding concurrency.

e. No concurrent designation will be considered when statutory

language mandates consecutive service or the U.S. Sentencing Guidelines require consecutive service.

f. Authority for commencement of a sentence once a facility is

designated is found in 18 U.S.C. § 3585(a) and § 3568 (repealed). 18 U.S.C. § 3585(a), states,

“A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”

18 U.S.C. § 3568, states in part, “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.”

g. Just as the federal government has no authority to prescribe

when a state sentence will commence, the state has no authority to order commencement of a federal sentence (see 18 U.S.C. § 3585(a) & § 3568 (repealed)).

PS 5160.05

1/16/2003 Page 4 8. AUTHORITY FOR DESIGNATIONS. The Bureau’s authority to designate a state institution for concurrent service of a federal sentence is delegated to Regional Directors. # A designation for concurrent service of sentence will be made only when it is consistent with the intent of the federal sentencing court or the goals of the criminal justice system.

a. Exceptions to the general rules regarding concurrent

designation may be based on the merits of a particular case. Information reviewed will include: # inmate discipline history, # institutional adjustment, # recommendations of the Wardens at the state and federal institutions, # the recommendation of the prosecuting Assistant U.S. Attorney, # intent of the federal sentencing court, if available, and # any other pertinent information regarding the inmate.

b. In the event of an “exception,” the above information will be

sent to the appropriate RISA who will coordinate a response. The Regional Director is the final authority to determine exceptions.

9. CONCURRENT SERVICE OF FEDERAL AND STATE SENTENCES

a. Concurrent service of federal and non-federal sentences in a

non-federal institution occurs when the Bureau designates a non-federal institution for service of the federal sentence. Ordinarily, the reason for selecting the non-federal institution is that primary custody resided with the non-federal jurisdiction and the federal sentencing court intended its sentence be served concurrently with the non-federal sentence.

b. When an inmate is sentenced in both federal and state

jurisdictions, care must be taken to ensure that he or she is suitable for federal designation. Normally, designating a non-federal institution for the inmate is done when it is consistent with the federal sentencing court’s intent. Ordinarily, this intent is made known in one of the following ways:

PS 5160.05

1/16/2003 Page 5 (1) Court Order. The sentencing court orders, on the Judgment & Commitment Order or the Judgment in a Criminal Case (J&C), that the federal sentence be served concurrently with a state sentence. The court may make clear its intent by using language similar to: # “Said sentence to run concurrently with the state sentence the defendant is presently serving.” # “Sentence to run concurrently with sentence imposed under Docket 168-88, San Diego County Court, on May 14, 1988.” # “Sentence is hereby ordered to run concurrently with any other sentence presently being served.”

# “Sentence to begin immediately.” (2) Court Recommendation of Non-Federal Confinement. The sentencing court recommends a non-federal institution as the place of confinement on the J&C. Most J&Cs have a preprinted area for recommendations with language similar to: “the court makes the following recommendations to the Bureau of Prisons…” If the inmate was in primary non-federal custody, (i.e., produced on writ), and the court uses the preprinted phrase and adds the name of a state institution, this will be accepted as a court recommendation for concurrent service. This wording could also appear in the body of the J&C. (3) Concurrent Service of Sentence After Imposition. The court may, from time to time, order concurrent service of the federal sentence at some time after its imposition. This may occur when primary jurisdiction resided with the state and the court believed mistakenly that the inmate was in federal custody for service of the federal sentence on the date of imposition. (4) Inmate Request. Occasionally, an inmate may request a nunc pro tunc (i.e., occurring now as though it had occurred in the past) designation. As a result of the decision in Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990), the Bureau considers an inmate’s request for pre-sentence credit toward a federal sentence for time spent in service of a state sentence as a request for a nunc pro tunc designation.

PS 5160.05

1/16/2003 Page 6 (a) In Barden, the court held that the Bureau must consider an inmate’s request for concurrent service of the state and federal sentences. # However, there is no obligation under Barden for the Bureau to grant the request by designating a state institution retroactively as the place to serve the federal sentence. (b) This type of request will be considered regardless of whether the inmate is physically located in either a federal or state institution. Information will be gathered, if available, to include: # a copy of the federal and state J&Cs, # the state sentence data record to include jail credit, and # any other pertinent information relating to the federal and state sentences.

(c) In making the determination, if a designation for concurrent service may be appropriate (e.g., the federal sentence is imposed first and there is no order or recommendation regarding the service of the sentence in relationship to the yet to be imposed state term), the RISA will send a letter to the sentencing court (either the Chambers of the Judge, U.S. Attorney’s Office, and/or U.S. Probation Office, as appropriate) inquiring whether the court has any objections. Regardless of where the original inquiry is directed, the U.S. Attorney’s Office and U.S. Probation Office will receive a courtesy copy. (d) If, after 60 days, a response is not received from the sentencing court, the RISA will address the issue with the Regional Counsel and a decision will be made regarding concurrency. (e) No letter need be written if it is determined that a concurrent designation is not appropriate. If the court has indicated previously that its language on judgments is sufficient for designation of a state institution for service of the federal sentence, then no further letters need be written. When the original sentencing judge is no longer available and the assigned judge offers no opinion, the RISA will make a determination based on the particular merits of the case. (Refer to Section 8.a. for more information.) The RISA will notify the inmate of the decision in writing and place a copy of this notification in the J&C file. (f) The Bureau will not allow a concurrent designation if the sentencing court has already made a determination regarding the order of service of sentence (e.g., the federal sentencing court ordered the sentence to run consecutively to any other

PS 5160.05

1/16/2003 Page 7 sentence, or custody in operation, during any time in which the inmate requests concurrent designation). (5) State Request. Occasionally, a Regional Office receives a request from a state jurisdiction indicating that the state and federal sentences are to be served concurrently, whether by state court order or department of corrections referral. (a) The RISA will gather and review all information pertaining to the federal and state sentences. After reviewing this information carefully, if necessary, the RISA will correspond with the federal sentencing court to ascertain whether it has any objections to the federal and state sentences running concurrently. A courtesy copy of this correspondence will be forwarded to the appropriate U.S. Attorney. (The same procedures apply as outlined in subsections 4.c. and d., Inmate Request.) (b) If the court has no objections, the state institution may be designated as the place to serve the federal sentence concurrently with the state sentence, according to the procedures detailed in this Program Statement. Note: The Bureau will not, under ordinary circumstances, such as overcrowding in a state institution, accept transfer of the inmate into federal custody for concurrent service. 10. RESPONSIBILITIES. The following procedures are to be used when a state institution is designated for the concurrent service of federal and state sentences. (See the Security Designation and Custody Classification Manual for procedures when a federal inmate transfers from a federal to a non-federal institution for concurrent service of a federal and state sentence.)

a. Notification to Regional Director. The Regional Director, of

the region where the state institution is located, will be notified of the federal court’s order that the federal sentence run concurrently with the state sentence. This notification will be received from the Community Corrections Manager (CCM). The CCM forwards the Regional Office a copy of:

PS 5160.05

1/16/2003 Page 8 # the inmate’s J&C Order, # the federal register number, # the U.S. Marshals Tracking Form (USM-129), # the Pre-Sentence Investigation Report (PSI), and # any other available pertinent information.

b. Designation. The RISA, through the Regional Director, may

make a nunc pro tunc designation to the non-federal institution using a letter to the U.S. Marshals Service (USMS)(Attachment A). (1) As part of the designation process, a date is specified nunc pro tunc (i.e., occurring now as though it had occurred in the past) as the effective date the sentence will begin. (2) Specifying a nunc pro tunc designation ensures that time lost in administrative processing is not passed on to the inmate. It is this designation that allows the federal sentence to commence. (3) As the recommendation for concurrent service, in most cases, is received after the imposition of sentence, the nunc pro tunc designation will normally be effective from the original date of sentencing, unless otherwise indicated in the subsequent order. (4) Since the inmate is primarily in state custody, all decisions regarding confinement and classification are at the sole discretion of the state authorities. A copy of the letter will be forwarded to the USMS in the district where the state institution is located as notification to lodge a detainer. (5) The letter, along with sentence computation data sheet, will be mailed to the appropriate state department of corrections; an informational copy will be sent to the USMS in the sentencing district; and a copy to the U.S. Parole Commission (USPC), if appropriate. A copy of the letter will be placed in the J&C file, maintained by the appropriate RISA. The sentence computation data sheet will also be mailed to the inmate. (6) Should the court order concurrent service of the federal sentence after the inmate is received in federal custody, the RISA will determine whether a nunc pro tunc order is appropriate. (7) By action of a nunc pro tunc order, the Federal sentence may commence on the date of its imposition or on a subsequent date that will not cause the inmate to be a late release by virtue of the nunc pro tunc order. (8) Should a nunc pro tunc designation be granted, a thorough review of jail credit (Willis/Kayfez) must be conducted as outlined in the sentence computation manuals. (9) If the nunc pro tunc designation results in a date that

PS 5160.05

1/16/2003 Page 9 would make the inmate “past due” for release, such designation will be retroactive to a point in time that the sentence, when calculated in the same manner as any other sentence, results in a release date that affords the institution time to conduct normal release processing. (10) If the D.C. Superior Court recommends designation of a state institution for service of a D.C. sentence, the RISA in the appropriate region will gather and review all information pertaining to the D.C. sentence. If it is determined that a nunc pro tunc designation is warranted, a copy of the designation letter along with other relevant information will be forwarded to the D.C. Records Center (DCRC) for computation of the D.C. sentence. The DCRC will maintain an administrative file, compute the sentence, and will be responsible for all computation updates. Should an update be required to the D.C. state concurrency sentence computation, the RISA will provide all appropriate documentation to the DCRC. Once the DCRC updates the sentence computation, they will notify the RISA via GroupWise.

c. Files. The RISA is to maintain a file on all state

concurrency cases. Each file will contain the following: # the J&C Order, # the USM-129, # a copy of the letter to the USMS (Attachment A), # the PSI, and # a signed/certified copy of the Sentence Data Computation Sheet. (1) When the inmate satisfies the federal sentence, copies of release certificates, as well as the notifications to state authorities, the USMS, U.S. Probation Office, and the USPC, will be placed in the file. Concurrency files will be retained until the sentence expires and then they will be sent to the appropriate Federal Records Center in accordance with the Inmate Systems Management Manual. (2) If the inmate is eligible for parole, the RISA will send the following to the USPC:

PS 5160.05

1/16/2003 Page 10 # the letter to the USMS (Attachment A), # the J&C Order, # the USM-129, # the PSI, # a copy of the Sentence Data Computation Sheet, and # any other available pertinent information. (3) If a copy of the inmate’s PSI is not provided in the designation packet, the RISA will request a copy from the U.S. Probation Office.

d. Sentence Computation. The RISA is responsible for:

# computing the inmate’s sentence (with the exception of D.C. Code sentences), # posting awards of Extra Good Time (EGT), # notifying the USMS and the state department of corrections of the inmate’s release date, and # completing all necessary SENTRY transactions. (1) The RISA has the final approval for state recommendations for EGT. EGT awards for inmates in state institutions must be consistent with the requirements for those in federal institutions (see the sentence computation manual). (2) The maximum amount of Statutory Good Time (SGT) or Good Conduct Time (GCT) an inmate is entitled to receive will be awarded unless documentation provided by state authorities recommends a forfeiture of SGT or disallowance of GCT based on the inmate’s behavior. After reviewing the documentation provided by the state, the RISA will determine, in consultation with the Regional Discipline Hearing Administrator or Regional Counsel, whether some or all of the SGT or GCT should be forfeited/disallowed.

e. Release

(1) Should an inmate be released from the non-federal jurisdiction before the statutory release or parole date of the federal term of imprisonment, the USMS will assume custody. The USMS may request designation from the respective CCM 30 days prior to assuming custody of the inmate. The USMS must provide documentation verifying the completion of the state sentence. The RISA is then to forward all inmate files (Central, Medical, and J&C) to the designated federal institution.

PS 5160.05

1/16/2003 Page 11 (2) If the federal term expires prior to the inmate’s release from the non-federal jurisdiction, the RISA is to notify the state department of corrections, the USMS, and the USPC (if necessary). The RISA will complete the appropriate release paperwork as it pertains to the confinement portion of the federal sentence. Upon receiving the release notification, the USMS will withdraw the detainer.

f. Monitoring. The RISA will establish a system to monitor

release dates of concurrent sentences so that timely notification will be made to state authorities, the USMS, and the USPC (if necessary). This may be accomplished by using: # a SENTRY release roster, # a log, or # any other method that enables the RISA to monitor release dates. (1) The USPC will prepare certificates for inmates scheduled for release on parole. The RISA will ensure that any parole certificates received on a state concurrency case are accurate and any discrepancies are reported to the USPC. Normally, the RISA prepares the mandatory release and special parole term certificates. For the completion of any other release paperwork, refer to the Inmate Systems Management Manual. For information on fines and restitution, refer to the appropriate program statements. (2) A term of supervised release that follows a federal sentence will not commence until the inmate is released from all periods of confinement. When an inmate has a term of supervised release and the federal sentence expires prior to the state term, the RISA will ask the state authorities to notify the U.S. Probation Office 30 days prior to release from state custody. The RISA will forward a courtesy copy of the request to the U.S. Probation Office.

g. Primary Jurisdiction. When it has been determined an inmate

was committed improperly to federal custody and primary jurisdiction resides with a state sovereign (i.e., the inmate was under jurisdiction of the federal sentencing court on the basis of a writ of habeas corpus ad prosequendum), institution staff, through the RISA, will make every effort to return the inmate to state custody.

PS 5160.05

1/16/2003 Page 12 A return to the state means that the federal sentence should be considered as not having commenced since transfer to the Bureau was in error and the prisoner should have been returned to the state after federal sentencing as a required condition of the federal writ (see Crawford v. Jackson, 589 F.2d 693 (D.C. Cir. 1978)). The federal J&C will be lodged as a detainer, through the USMS, with the state authorities. If the federal court recommends concurrent service of the federal and state sentences, the case should be referred to the appropriate RISA. /s/ Kathleen Hawk Sawyer Director

PS 5160.05

1/16/2003 Attachment A, Page 1 Sample Letter to U.S. Marshal Date : Inmate’s Name : Register Number : Docket Number : Offense : Sentence : Judicial District : Sentence Begins : Release Date : Designated Facility : U.S. Marshals Service Maryland Dept. of Corrections District of Maryland 6776 Reisterstown Road 605 U.S. Courthouse Suite 310 101 West Lombard Street Baltimore, MD 21215-2341 Baltimore, MD 21201 Attn: Criminal Desk The United States District Court that sentenced the above individual recommended that the federal sentence run concurrently with the state sentence. To make this possible, I have designated the above facility for service of the federal sentence. Please lodge and maintain a detainer with the local authorities for the duration of the federal sentence. The date indicated above is the projected release date. Please request that state authorities notify you 60 days in advance of any release from state custody, or in the event the inmate escapes, dies, or is transferred. Upon notice of release from state custody, please request federal designation through the Community Corrections Manager in your district. I understand that no charge will be made to the federal government during the time the inmate is in service of the state sentence. Sincerely, Regional Director STATE CORRECTIONAL AUTHORITY: This is for notification purposes only and does not limit your discretion in any decision affecting this offender’s classification, work, and quarters assignments or other treatment and programs.

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026