Time on a Federal Writ: Put the Credit in the Plea Deal

Robert Roberts spent 21 months in federal custody on a writ before he was sentenced. His plea agreement never mentioned that time. When the judge declined to adjust his sentence for it, the Tenth Circuit held on October 26, 2026, that his appeal waiver barred any challenge (United States v. Roberts, No. 26-3072). The decision is unpublished and does not bind other cases, but the problem it shows comes up often.

What happened

Mr. Roberts was in state custody on state charges when he was indicted federally for being a felon in possession of a firearm. The government brought him into the federal case with a writ of habeas corpus ad prosequendum, an order requiring the state to produce a state prisoner for federal charges. He stayed in federal custody under that writ for 21 months before sentencing.

He pleaded guilty under Federal Rule of Criminal Procedure 11(c)(1)(C). That rule lets the parties agree on a specific sentence or range, which binds the judge once the judge accepts the agreement. The agreed range was 37 to 46 months. The plea agreement had an appeal waiver, with an exception for a sentence "in excess of the sentence recommended by the parties."

At sentencing, his lawyer argued that the Bureau of Prisons would not credit the writ time because he technically remained in the state's primary custody. The lawyer asked the judge to adjust the sentence under USSG §5G1.3 to make it "truly concurrent" with any state sentence. The judge imposed 42 months, ran it concurrent with any state sentence, and declined the adjustment.

What the court decided

Mr. Roberts argued that, without the 21-month adjustment, his sentence was in effect more than the agreed range. The Tenth Circuit disagreed:

• The plea agreement "says nothing" about credit for the 21 months. The agreed range was 37 to 46 months, and 42 months is inside it.
• The agreement had an integration clause saying it contained every term unless later supplemented in writing. The court said such a clause "prohibits any oral modification of the plea agreement," so discussion at the sentencing hearing could not change it.
• His own sentencing memo asked for 37 months, "the low end" of the agreed range, plus the adjustment. That showed he understood the range was 37 to 46 months.

The court also found no miscarriage of justice. It noted the Supreme Court's recent decision in Hunter v. United States, 608 U.S. 713 (2026), but did not apply it because Mr. Roberts relied only on circuit precedent.

The court did not decide whether the judge should have made the §5G1.3 adjustment. It enforced the waiver and dismissed the appeal.

Why credit for writ time is a problem

Under 18 U.S.C. § 3585(b), a federal prisoner gets credit for time in official detention before the sentence begins, but only time "that has not been credited against another sentence." The Bureau of Prisons, not the sentencing judge, computes that credit after sentencing (United States v. Wilson, 503 U.S. 329 (1992)). So when someone sits in federal custody on a writ while the state still has primary custody, the defense may expect the Bureau not to count that time toward the federal sentence. That is what Mr. Roberts's lawyer told the court.

From my perspective

The lesson here is about paperwork. The judge was asked to fix the credit problem at the hearing, and the agreement didn't address it. Once he got a sentence inside the agreed range, his appeal waiver closed the door.

If you are being held on a writ and the time matters to you, the plea agreement itself should say how that time is handled. That might mean an agreed range that already accounts for it, or a written term about the adjustment. A shared understanding at the hearing is not enough when the agreement says it contains every term.

It also helps to ask early how the Bureau of Prisons is likely to treat the time, because the judge will not be the one computing it. Book a consultation and tell us what happened.