In re U.S. Bureau of Prisons, DEPT. OF JUSTICE

918 F.3d 431

IN RE: UNITED STATES BUREAU OF PRISONS, DEPARTMENT OF JUSTICE, Respondent - Appellant

No. 18-50512

United States Court of Appeals, Fifth Circuit.

FILED March 14, 2019

John Franklin Bash, John Francis Paniszczyn, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Respondent-Appellant.

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 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.

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 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 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 , 230 F.3d 167, 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. , 227 F.3d 231, 234 (5th Cir. 2000) (quoting In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena , 926 F.2d 1423, 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,Inc. , 981 F.2d 807, 810 (5th Cir. 1993) (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (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. , 39 F.3d 563, 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...