Kelly: prisoners should receive good time credits on the state portion of a sentence adjusted down under U.S.S.G. § 5G1.3

You know how the sentencing judge has to adjust down a sentence under U.S.S.G. § 5G1.3 to achieve a concurrent sentence with the time already served on an undischarged state sentence? George Kelly had his sentence adjusted down 28 months, but the Bureau of Prisons refused to exercise its statutory duty to award good time credits on the whole sentence, instead treating the sentence as a downward departure, despite language in the Guidelines Manual and the Judgment that contradicted this characterization. Judge Stewart granted habeas corpus relief to Mr. Kelly (here)(Kelly v. Daniels, __ F.Supp.2d __, 2007 WL 79342 (D.Or. Jan. 10, 2007)) based on legal standards elaborated in the memorandum linked here. Here’s the summary on why we should be reviewing all our § 5G1.3 adjusted sentences to be sure our clients are receiving full good time credits and, if not, filing for habeas corpus relief.

Under U.S.S.G. § 5G1.3, the sentencing judge can adjust a sentence down to achieve a partially or fully concurrent sentence to a previously imposed state sentence. In the commentary, sentencing judges have been instructed to note in the judgment that the lower number of months in the sentence is not a departure but an adjustment to reflect that the Bureau of Prisons, pursuant to 18 U.S.C. § 3585, will not credit time prior to the commencement of the sentence that has been credited against another sentence. The concurrent portion of the sentence, under the separate good time credit statute, is fully subject to good time credits for the time in state custody. 18 U.S.C. § 3624(b).

We need to check good time calculations because the Bureau of Prisons does not always award good time for the portion of the total term of imprisonment served concurrently while in state custody, treating the adjusted sentence as a departure rather than as part of the term of imprisonment. After exhausting administrative remedies (assuming no imminent harm), we should litigate this issue by establishing that no departure is involved, that the plain meaning of the good time credit statute requires that earned good time credit be awarded on the entire term of imprisonment, and that any ambiguity in the statute would have to be resolved in favor of the prisoner.

The good time credits for Mr. Kelly’s 28 months come out to about four fewer months of actual incarceration. We need to be sure our clients are receiving the proper calculation of good time credit on § 5G1.3 sentences, which can save them many months of prison time and accelerate their entry to community corrections programming.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon