Federal Appeals Court Vacates Sentence After Judge Mistakenly Believed Only BOP Could Credit State Prison Time

The Fifth Circuit Court of Appeals vacated a federal defendant’s 60-year prison sentence after finding that the sentencing judge mistakenly believed only the Bureau of Prisons (BOP) could account for time he had already served on a related state conviction. The defendant had spent nearly 40 months in state custody before his federal sentencing, but the judge refused to consider adjusting his sentence because she believed that decision belonged exclusively to the BOP. The appellate court held that the judge failed to recognize her authority under U.S.S.G. § 5G1.3(b) and ordered resentencing.

In United States v. Koan, 2026 U.S. App. LEXIS 30283 (5th Cir. Oct. 2, 2026), the court explained the important distinction between the BOP’s authority to calculate prior-custody credit under 18 U.S.C. § 3585(b) and a federal judge’s separate authority to adjust a sentence under the Sentencing Guidelines. Although both provisions concern time already spent in custody, they operate differently. Confusing them can result in defendants serving more time than the sentencing court might otherwise have imposed.

How Koan Ended Up With Related State and Federal Sentences

Koan pleaded guilty in Texas state court to two counts of aggravated sexual assault of a child and received a 35-year prison sentence. He subsequently pleaded guilty in federal court to two counts of producing child pornography under 18 U.S.C. § 2251(a). The federal offenses arose from the same conduct underlying his state convictions, making the state offenses relevant conduct for federal sentencing purposes.

By the time Koan appeared for federal sentencing, he had already served 39 months and 28 days in state custody. His Presentence Investigation Report (PSR) calculated a Guidelines range of life imprisonment, reduced to 60 years because each federal count carried a statutory maximum of 30 years.

Importantly, the PSR expressly identified § 5G1.3(b) as applicable and recommended adjusting Koan’s federal sentence to account for the time already served on the related state conviction.

The district judge imposed two consecutive 30-year federal sentences, totaling 60 years, but ordered the federal sentence to run concurrently with the remainder of Koan’s state sentence. Defense counsel then requested an adjustment for the time Koan had already served in state prison.

The judge refused, stating:

“I can’t do that. I’ll — I’ll let the Bureau of Prisons do that.”

Defense counsel attempted to explain that the court could adjust the sentence rather than award administrative custody credit. However, the probation officer informed the judge that the time was being credited toward Koan’s state sentence and that the matter should be deferred to the BOP.

That advice reinforced the judge’s mistaken belief that she lacked authority to address the issue herself. Ironically, the fact that Koan’s prior custody was already credited toward his state sentence was precisely why the BOP generally could not give him duplicate credit against his federal sentence.

The Difference Between BOP Sentence Credit and a Judicial Sentence Adjustment

The Fifth Circuit explained that two separate legal authorities govern how prior custody can affect a federal prison sentence.

Under 18 U.S.C. § 3585(b), the BOP calculates credit for qualifying time spent in official detention before a federal sentence begins. However, Congress expressly prohibits awarding that credit for time already credited against another sentence.

The Supreme Court established in United States v. Wilson, 503 U.S. 329 (1992), that responsibility for calculating this credit belongs to the Attorney General, acting through the BOP, rather than the sentencing judge. Consequently, a federal judge cannot order the BOP to award duplicate credit under § 3585(b) for time already credited toward a state prison sentence.

But § 5G1.3(b) addresses a different problem.

When a defendant is serving an undischarged state sentence involving conduct relevant to the federal offense, the guideline provides a mechanism for accounting for the time already served. Specifically, § 5G1.3(b) states that when its requirements are satisfied, the sentencing court shall adjust the federal sentence for time served on the related sentence that will not be credited by the BOP.

Two requirements must be met:

1. The prior sentence must involve conduct that qualifies as relevant conduct to the federal offense.
2. The time already served on that sentence must not be credited toward the federal sentence by the BOP.

When those requirements are satisfied, § 5G1.3(b) directs the court to adjust the sentence for the uncredited time and impose the federal sentence concurrently with the remainder of the related sentence.

This distinction is critical. The BOP calculates administrative credit against the sentence imposed. The federal judge has separate authority under § 5G1.3(b) to adjust the sentence itself.

These are not interchangeable remedies. In Koan’s case, the nearly 40 months he had served were already credited toward his state sentence. That generally prevented the BOP from awarding duplicate credit under § 3585(b), but it did not prevent the sentencing judge from considering an adjustment under § 5G1.3(b).

Why the Fifth Circuit Found the Sentencing Judge Was Wrong

The appellate court concluded that the district judge confused these two distinct forms of relief. She correctly understood that she could not personally award administrative credit under § 3585(b), but incorrectly concluded that this also prevented her from considering a sentence adjustment under § 5G1.3(b).

That misunderstanding mattered because the PSR had already identified the guideline as applicable. The district court even followed part of § 5G1.3(b) by ordering the federal sentence to run concurrently with the remaining state sentence. However, it failed to consider the separate provision addressing the time Koan had already served.

The government argued that the judge must have considered § 5G1.3(b) because she imposed concurrent sentences. The Fifth Circuit rejected that reasoning, explaining that compliance with one part of the guideline did not establish that the judge understood or considered the other part. Her statements at sentencing demonstrated that she believed she lacked authority to make the adjustment.

There is an important limitation to the holding. Because the Sentencing Guidelines are advisory following United States v. Booker, 543 U.S. 220 (2005), the judge was not necessarily required to impose the precise adjustment recommended by § 5G1.3(b). She was, however, required to recognize and consider the guideline when determining an appropriate sentence. The Fifth Circuit found that she had failed to do so.

Defense Counsel Preserved the Issue Without Citing the Guideline

Another important aspect of Koan concerns the preservation of sentencing objections.

The government argued that defense counsel had forfeited the § 5G1.3(b) argument because she never specifically cited that guideline at sentencing. Instead, she requested credit for the time served and suggested that the judge could backdate or adjust the sentence.

The Fifth Circuit disagreed, and explained that preserving an objection does not always require identifying the exact statute or guideline by number. An objection is sufficient when it alerts the sentencing court to the nature of the error and provides an opportunity to correct it.

Although counsel’s terminology was not entirely accurate, her request conveyed the substance of § 5G1.3(b): an adjustment to account for time already served on a related, undischarged sentence.

The court also noted that the PSR itself had already recommended applying § 5G1.3(b). Defense counsel therefore did not need to introduce the guideline for the first time at sentencing.

This aspect of the decision is particularly important when reviewing sentencing transcripts for possible appellate issues. An attorney’s failure to cite a specific guideline does not necessarily mean the issue was forfeited, although clearly identifying the legal basis for an objection remains the safer practice.

Why the Fifth Circuit Ordered Resentencing

The Fifth Circuit concluded that both prerequisites for applying § 5G1.3(b) were satisfied. Koan’s state convictions involved relevant conduct to his federal offenses, and the nearly 40 months he had already served were being credited toward his state sentence. Consequently, the BOP could not award the same credit toward his federal sentence under § 3585(b).

Because the district court failed to recognize its authority to consider a sentence adjustment, the appellate court vacated Koan’s sentence and remanded for resentencing.

Judge Catharina Haynes dissented, arguing that defense counsel had failed to properly preserve the issue and that the district judge would likely impose the same 60-year sentence on remand.

The majority rejected that reasoning, explaining that the judge’s decision to run the federal sentence concurrently with the state sentence suggested she might have considered a different outcome had she understood the full scope of § 5G1.3(b).

Nevertheless, the Fifth Circuit did not order a specific reduction. The district judge remains free to impose the same lawful sentence after properly considering the guideline. What she cannot do is refuse to consider the adjustment based on the mistaken belief that only the BOP has authority over the matter.

What This Means for Federal Defendants and Prisoners

Koan highlights a sentencing issue that can easily be overlooked when defendants have both state and federal convictions. Simply ordering sentences to run concurrently does not necessarily account for time already served before the federal sentence was imposed.

For example, a defendant might serve three years on a related state conviction before receiving a federal sentence. If the federal sentence runs concurrently with the remaining state sentence, that ordinarily does not mean the three years already served automatically count toward the federal sentence. The BOP generally cannot award duplicate credit for those years under § 3585(b).

However, depending on the circumstances, § 5G1.3(b) may provide a separate mechanism for the sentencing court to account for that time when determining the federal sentence.

The distinction also matters after sentencing. A prisoner who believes the BOP incorrectly calculated prior-custody credit generally must pursue the BOP’s administrative remedy process before seeking judicial review, ordinarily through a petition under 28 U.S.C. § 2241 after exhausting administrative remedies.

But a failure by the sentencing judge to recognize or consider § 5G1.3(b) is a sentencing issue, not simply an administrative calculation error. Depending on the circumstances, that error may need to be addressed through a timely direct appeal or another available judicial procedure.

The central lesson from Koan is that understanding who has authority to account for prior custody, and under what legal provision, can make a substantial difference in how a federal sentence is imposed and calculated.