United States v. Jackie Lynn Westmoreland , 974 F.2d 736 ( 1992 )

KENNEDY, Circuit Judge.

Defendant Westmoreland appeals from the District Court’s order denying his post-conviction motion asking for sentence credit for the time spent at a halfway house and in a residential substance abuse program prior to sentencing. The District Court denied the motion, holding that the time spent at the institutions did not amount to official detention under 18 U.S.C. § 3585. We now REVERSE that decision and REMAND to the District Court with instructions to dismiss the motion for lack of jurisdiction.

At the time of the District Court’s decision, .the law of this Circuit provided that applications for sentence credits should be made to the District Court. United States v. Wilson, 916 F.2d 1115 (6th Cir.1990), rev’d, — U.S. -, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). In reversing Wilson, the Supreme Court held that a district court does not have jurisdiction to apply credit against a sentence under section 3585(b). Rather, the Attorney General, through the Bureau of Prisons, is to make that determination. Review of the Bureau of Prisons’ determination is available through the administrative process and ultimately, after the exhaustion of administrative remedies, in the District Court.

In asking that we review a decision denying Westmoreland sentence credit, defendant asks us to review a decision the District Court was not authorized to make. The parties recognize this, but because of the unusual posture of the case, the government has agreed to waive the requirement of exhaustion of administrative review. This waiver, the parties urge, will permit us to review the District Court’s decision. We disagree, and find the issue not ripe for decision when it was presented to the District Court.

In Wilson, the Supreme Court expressly stated that 18 U.S.C. § 3585(b) does not authorize a district court “to award credit at sentencing,” and that the Attorney General “must continue to compute the credit under § 3585(b) as he did under the former § 3568.” — U.S. at -, 112 S.Ct. at 1354. For the District Court to make the initial determination, it would have to be acting pursuant to some sort of delegation of authority from the Attorney General, clearly impermissible for an Article III court. For the district court to perform its constitutional functions, it must decide an actual case or controversy ripe for adjudication. There can be no such case or controversy until the Attorney General makes a determination and Westmoreland then seeks judicial review of the determination.¹

We recognize that the Tenth Circuit in United States v. Woods, 888 F.2d 653 (10th Cir.1989), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990), permitted such a waiver of the Attorney General’s decision, but the authorities on which it relied were all cases where a decision had been made and the waiver was of administrative appeal requirements. The doctrine of waiver of exhaustion of administrative review is not relevant to this case, where the agency has not issued a decision. Although an agency may waive the opportunity to change its mind, it may not waive (and thereby delegate to the district court) the responsibility to make up its mind in the first place. Until the Attorney General makes a sentence credit determination under section 3585(b), the case is not ripe for review by the District Court.

Accordingly, the order of the District Court denying sentence credit is REVERSED and the action is REMANDED to the District Court with instructions to dismiss the motion for want of jurisdiction.

1 . If the Attorney General should fail to make such determination, defendant could require he do so by mandamus, but that circumstance is not alleged to exist here. In addition, if the credit exceeded the sentence, habeas corpus relief would be available.