Defending Concurrent State and Federal Charges - fd.org

Defending Concurrent State and
Federal Charges

Ronald L. Hanna

CJA Panel Attorney
Hanna & Hanna, P.C.
Peoria, IL
[email protected]
www.hannaandhannalaw.com/

2

Practically speaking . . .

• Approximately 97% of federal criminal
defendants face sentencing.

• Defendants have two primary concerns:
(1) How much time am I going to do?
(2) Where am I going to do it?

3

Beware: Interplay between state and
federal sentences.

• Clients being prosecuted in both state and federal courts –
parallel/dual prosecutions and sentences.

• In particular: How the BOP computes federal sentences imposed
when the defendant is under the primary custodial jurisdiction of
state authorities.
▫ “This is probably the single most confusing and least understood

federal sentencing issue.”
▫ “Interaction of state sentences and federal sentences is very

complicated and usually turns on the specific facts.”

 BOP Regional Counsel, Henry J. Sadowski

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Example:

• D arrested by state authorities as result of joint
investigation by state and federal law enforcement. D
cannot post bond. While state charge pending, D is
produced in federal court on related charges via writ of
habeas corpus ad prosequendum. State delays
prosecution until federal prosecution is complete. A year
after initial arrest, D appears in federal court for
sentencing. D then taken back to state facility where
prosecutor proceeds on state charges.

5

Fundamental Concepts:

• Dual sovereign prosecutions exist in three forms:

(1) Courts of separate sovereigns may pursue identical
prosecutions against the same defendant without
violating double jeopardy. (i.e. firearm/firearm)

(2) Separate sovereigns may bring separate charges against
the same defendant for separate but related conduct
arising from a single incident. (i.e. firearm/drugs).

(3) Separate sovereigns may bring charges at the same time
against the same defendant for entirely unrelated
criminal conduct. (i.e. fraud/child porn).

Most common dual sovereign prosecution – State and federal.

6

Fundamental Concepts:

• The concept of primary jurisdiction affords resolution for
contemporaneous jurisdictional claims.

▫ One sovereign gains primary jurisdiction over the defendant.
▫ The other sovereign does not surrender jurisdiction, but

recognizes that its jurisdiction will be secondary.
▫ Primary jurisdiction is afforded to the sovereign that first gains

physical custody of the defendant.
▫ Should that sovereign relinquish physical custody, it will not

surrender jurisdiction but it will cede its primary jurisdiction to
the sovereign that next takes the defendant into actual physical
custody.

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Fundamental Concepts:

• The entity making the initial arrest takes custody and
retains primary jurisdiction until relinquished.

• For purposes of sentencing: it is irrelevant whether
there was a joint state/federal investigation, which
sovereign is the first to prosecute, and/or which
sovereign is the first to sentence the defendant (more on
this later).

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Common ISSUES in parallel state/federal prosecutions:

A. When does the federal sentence commence?
B. Any prior custody credit toward the federal sentence?
C. How does the federal sentence run in relation to state

sentences, e.g., concurrent, consecutive?
D. Where will defendant serve the sentence, IDOC or BOP –

primary/secondary jurisdiction?
E. Any application of U.S.S.G. §5G1.3 to allow the district court

to “adjust” the sentence for time served on another (state)
sentence?

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The BASICS:

Sentencing Court determines:
• Length of the prison sentence;
• How it runs in relation to other sentences, e.g.,

concurrent, consecutive, etc.

Bureau of Prisons determines:
• When the sentence commences – 18 U.S.C. §3585(a)
• Prior custody credit – 18 U.S.C. §3585(b)
• Projected release date – 18 U.S.C. §3624(a)
• Place of imprisonment – 18 U.S.C. §3621(b)

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United States v. Wilson

503 U.S. 329 (1992)

• The authority for federal sentence computation is with
the U.S. Attorney General (delegated to the Bureau of
Prisons)

• Federal district court may not award credit at sentencing
• Computation of credit must occur after the defendant

begins his sentence
• Defendant cannot receive double credit for detention

time.

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Issue A. When does the federal sentence commence?

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Issue A. When does the federal sentence commence?

• Commencement of Sentence: A federal sentence
commences on the date the defendant is received in custody
awaiting transportation to, or arrives voluntarily to
commence service of sentence at, the official detention facility
at which the sentence is to be served. 18 U.S.C. §3585(a)
(when the D is received by the Attorney General of the U.S. for
service of his federal sentence).

• The earliest date a federal sentence can commence is the date
it was imposed.

• A concurrent sentence commences on the date of imposition,
not on the date of commencement of a prior sentence.

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Issue A. When does the federal sentence commence?
• A federal sentence does NOT commence when a defendant

is produced in federal court for prosecution on a writ of
habeas corpus ad prosequendum from state custody
(“borrow/loan”).
• The state authorities retain primary jurisdiction over the
prisoner; federal custody does NOT commence until state
authorities relinquish the prisoner on satisfaction of the
state obligation (by agreement, release (bail, dismissal of
state charge(s)), or expiration of the state sentence).

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Issue A. When does the federal sentence commence?

• When a federal sentence is imposed on a defendant in state
custody, the federal sentence may commence when the Attorney
General agrees to designate the state facility for service of the
federal sentence. 18 U.S.C. §3621(b).

• To accomplish concurrent sentencing, there must be a request
the BOP designate the state institution in which the defendant is
confined as the place of service of the federal sentence.

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Issue A. When does the federal sentence commence?
• BOP’s authority to designate state institution for

concurrent sentence is delegated to Regional Directors.
PS 5160.05(8).
• Normally, the designation is done when consistent with
the sentencing court’s intent by considering:

▫ Court orders and recommendation of non-federal confinement in
the J&C;

▫ Court order for concurrent sentence subsequent to sentencing;
▫ Inmate request; or
▫ State request.

 PS 5160.05(9)(b)(1) - (5) (included in written materials).

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Issue A. When does the federal sentence commence?
• If the BOP grants a request for designation to a non-

federal institution, a procedure exists to create the
federal date nunc pro tunc (i.e. occurring now as though
it occurred in the past) so that credit for service of the
federal sentence may begin to run in accordance with the
court’s intention. PS 5160.05(10)(b).

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Issue B: Prior custody credit toward the federal sentence?

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Issue B: Prior custody credit toward the federal sentence?

• Credit for Prior Custody: A defendant shall be given
credit toward the service of a term of imprisonment for any
time spent in official detention prior to the date the sentence
commences-

(b)(1) as a result of the current offense; or
(b)(2) any other offense for which defendant was arrested
AFTER commission of the current offense, which has not

been credited towards another sentence. 18 U.S.C.
§3585(b)

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Issue B: Prior custody credit toward the federal sentence?

• “Congress made it clear that a defendant could not
receive double credit for his detention time.” U.S. v.
Wilson, 112 S.Ct. at 1356.

• No federal prior custody credit is given for:
▫ Time spent serving a state sentence;
▫ Time spent in USMS custody while on a federal writ;
▫ Presentence state time that is credited toward a state
sentence (while D in state primary custody).

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Issue B: Prior custody credit toward the federal sentence?
• Practical tip: A federal judge may not give a federal

defendant credit for time served in state custody, but you
are free to argue for a sentencing adjustment (departure
or 3553(a) approach) to the federal sentence imposed.

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Issue C: Concurrent v. Consecutive Sentences?

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Issue C: Concurrent v. Consecutive Sentences?

• Principle: As with the question of when a sentence
commences, the order in which sentences are served is
governed by the concept of primary jurisdiction.
▫ If state and federal sentences are imposed on an
offender, general rule is that sentence imposed by
sovereign with primary jurisdiction is served first.
▫ Generally, decisions concerning concurrent or
consecutive service of sentences are NOT dependent
on the order of imposition.

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Issue C: Concurrent v. Consecutive Sentences?
18 U.S.C. §3584
(a) If multiple terms of imprisonment are imposed

on a defendant at the same time, or if a term of
imprisonment is imposed on a defendant
already subject to an undischarged term of
imprisonment, the terms may run concurrently
or consecutively…
Multiple terms of imprisonment imposed at
different times run consecutively unless the
court orders that the terms are to run
concurrently (default is consecutive).

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Issue C: Concurrent v. Consecutive Sentences?
• RECAP:
• If the federal judgment is silent, the sentence is assumed

consecutive. 18 U.S.C. §3584(a).
• The BOP interprets §3584 to permit the federal judge to

order the federal sentence concurrent to a state sentence.

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Issue C: Concurrent v. Consecutive Sentences?

• In cases where the federal judge orders concurrent
service of a federal sentence, and the defendant is in
primary state custody, the BOP will commence the
sentence on the date of imposition and designate the
state facility for service of the federal sentence.

 PS 5160.05 and 18 U.S.C. §3621(b) (discussed above in issue A).

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Issue C: Concurrent v. Consecutive Sentences?

• Inmate request: If an inmate in state custody with a
pending federal sentence wants his federal sentence to
run concurrently, he/she may file an administrative
remedy request with the BOP.

• The BOP considers 5 factors under §3621(b):
(1) Resources of the facility contemplated;
(2) Nature and circumstances of offense;
(3) History and characteristics of prisoner;
(4) Any statement by sentencing court; and
(5) Any pertinent policy statement by the USSC
pursuant to 28 U.S.C. §994(a)(2)

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Issue C: Concurrent v. Consecutive Sentences?
• Question: does a federal district court have authority to

direct that a federal sentence be served consecutively to,
or concurrently with, a state sentence that has yet to be
imposed in a pending state prosecution?

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Issue C: Concurrent v. Consecutive Sentences?

OLD RULE - Romandine v. U.S., 206 F.3d 731 (7th Cir. 2000).
• Federal sentencing judge does not have the ability to require a

sentence to be served consecutively or concurrently to a state
sentence that will be imposed in the future.
• The final sentence of § 3584(a) makes the federal sentence
presumptively consecutive in all unprovided‐for cases, and the
effective decision then is made by the Attorney General (or the
state judge) rather than the federal judge.
• Attorney General has discretion to designate the state facility
as the place to serve the federal sentence, thereby making the
sentence concurrent.

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Issue C: Concurrent v. Consecutive Sentences?

NEW RULE: Setser v. U.S., 132 S. Ct. 1463 (2012).
• A district court has the discretion to order that a federal

sentence run consecutively to an anticipated state sentence
that has not yet been imposed.
• The federal district court, not the BOP, has the discretion to
order whether the whether a sentence runs consecutively or
concurrently.

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Issue D: Place of incarceration?

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Issue D: Place of incarceration?

• The primary custodian is responsible for the custody
of the defendant until primary jurisdiction is
relinquished (by bail, dismissal of charges, etc.).

• If a defendant has been arrested by the state and the
state never relinquished custody, the defendant must
serve his state sentence in state custody.

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Issue D: Place of incarceration?
• Production of a defendant via a federal writ does not

shift the primary jurisdiction to federal authorities.
• The federal judge may not order immediate delivery of a

defendant in primary state custody to serve his federal
sentence in a federal facility.
• The state sentencing judge cannot order the state
prisoner to be transported to a federal institution to
serve his state sentence.
• The state court has no authority to order how a federal
sentence will be computed or served.

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Interaction of State and Federal Sentences

Examples

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Example 1:

• January 2, 2000 State Arrest
• January 4, 2000 State Bail
• February 5, 2000 Federal arrest and bail
• February 12, 2000 State re-arrest of same charges, bail revoked
• April 4, 2000 Inmate produced to U.S. Marshal via Federal writ of habeas corpus

ad pros
• September 3, 2000 Federal sentence to 60 months, inmate returned to state
• October 3, 2000 State sentence of 10 years

1/2/00 1/4/00 2/5/00 2/12/00 4/4/00 9/3/00 10/ 3/00
! !! !!
!!
State arrest Bail Fed arrest Fed Sent. State Sent.
& bail State re-arrest Fed writ

& bail revoked

• RESULT: State is primary custodian - responsible for last arrest without
relinquishment of jurisdiction. State sentence is primary. Federal sentence may be
consecutive or concurrent to state term. Usual rule - No prior custody credit on
federal sentence for time credited towards state sentence. Concurrent federal
sentence may begin on date it is imposed (September 3, 2000), but not earlier.

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Example 2:

• January 2, 2000 State Arrest
• January 4, 2000 State Bail
• February 5, 2000 Federal arrest, no bail
• February 12, 2000 State bail revoked
• September 3, 2000 Federal sentence to 60 months
• October 3, 2000 Inmate produced in state court via state writ, sentenced 10 years

1/2/00 1/4/00 2/5/00 2/12/00 9/3/00 10/ 3/00
!!
! !! !
Fed Sent. State writ/Sent.
State arrest Bail Fed arrest State bail revoked

• RESULT: Federal is primary custodian - responsible for last arrest without
relinquishment of jurisdiction. State bail revocation has no impact. Federal
sentence is primary. Federal sentence begins on date it is imposed (September 3,
2000). Prior custody credit for time from February 5, 2000 federal arrest until
September 2, 2000. Whether state sentence is concurrent or consecutive is question
for state authorities.

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Example 3:

• January 2, 2000 State Arrest
• February 5, 2000 Federal indictment for related offense
• April 4, 2000 State sentence of 10 years
• August 5, 2001 Inmate produced to U.S. Marshal via Federal writ of habeas corpus

ad pros
• September 3, 2001 Federal sentence of 60 months concurrent with state sentence,

inmate returned to state

1/2/00 2/5/00 4/4/00 8/5/01 9/3/01
! ! ! ! !

State Arrest Fed Indict. State Sent. Fed writ Fed Sent concurrent.

• RESULT: State is primary custodian - responsible for last arrest without
relinquishment of jurisdiction. State sentence is primary. Federal sentence may be
consecutive or concurrent to state term. Usual rule - No prior custody credit on
federal sentence for time credited towards state sentence. Concurrent federal
sentence may begin on date it is imposed (September 3, 2001).

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PRACTICALLY SPEAKING . . .

• Counsel’s first inquiry must be of the client – do you want to
do your time in a state or federal facility?

• If client in federal primary custody, upon sentencing he will
go to a federal facility which may be much better than a state
facility.

• If client first arrested by state and wants to serve federal, the
simplest manner to accomplish (custody):

(1) Secure release on bond in the state charge with understanding
that defendant will be taken into federal custody and detained
(seek bail reduction to PR bond);

(2) Request that state voluntarily dismiss charges without
prejudice to refiling, with understanding that defendant will be
taken into federal custody and detained.

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PRACTICALLY SPEAKING . . .

• If the state maintains primary jurisdiction and will not
agree to bail/dismissal, defendant will serve state time
first.

• In federal case, seek judgment and sentence ordering
federal term of imprisonment to run concurrently with
state term.

• Judgment must say: “federal sentence shall commence
on the date of imposition” and specifically order the
federal term of imprisonment to run concurrently with
the state term (default is consecutive).

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Issue E: Reduction under U.S.S.G. §5G1.3 or §5K2.23?

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Issue E: Reduction under U.S.S.G. §5G1.3 or §5K2.23?

5G1.3(b) of the Sentencing Guidelines explains that sentencing courts
should consider if the defendant's present sentence takes into account
the sentence imposed in a related case:

(b) If ... a term of imprisonment resulted from another offense that is
relevant conduct to the instant offense of conviction under the
provisions of [Relevant Conduct] and that was the basis for an increase
in the offense level for the instant offense under [Offense Conduct] or
[Adjustments], the sentence for the instant offense shall be imposed as
follows:
(1) the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term of
imprisonment if the court determines that such period of
imprisonment will not be credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run
concurrently to the remainder of the undischarged term of
imprisonment.

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Issue E: Reduction under U.S.S.G. §5G1.3 or §5K2.23?

Illustration: Application of U.S.S.G. §5G1.3(b)

(Undischarged Terms of Imprisonment)
• Federal offense: 40 grams of cocaine
• Also held accountable for sale of additional 15 grams

(U.S.S.G. §1B1.3)
• Convicted and sentenced in state court for the 15 grams
• Received a nine‐month sentence, has served six
• Guideline range: 12‐18 months
• Court determines that a sentence of 13 months provides

appropriate total punishment
• End result: Seven months, imposed to run concurrently

with remaining three (already served six)

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Issue E: Reduction under U.S.S.G. §5G1.3 or §5K2.23?

§5K2.23

(Discharged Terms of Imprisonment)
Provides that a sentence below the applicable guideline
range may be appropriate if the defendant has completed
serving the term of imprisonment and § 5G1.3(b) would
have provided an adjustment had the completed term been
undischarged at the time of sentencing for the instant
offense.

(see US v. Andrzej Pietkiewicz, 2013 WL 1150206 (7th Cir. 2013).

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Issue E: Reduction under U.S.S.G. §5G1.3 or §5K2.23?
NOTE:

• In cases where the defendant’s state criminal conduct is
not considered relevant conduct (thus §5G1.3(b) and
§5K2.23 do not apply), a state conviction obtained prior
to federal sentencing will raise the defendant’s criminal
history score.

• Generally speaking then, it is to the defendant’s
advantage to postpone his/her state conviction (or at
least sentencing) until after federal sentencing occurs.

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Recap/Practical Tips:

1. If your client is in primary state custody (on writ in
federal court), request that the federal sentencing court
order that the federal sentence run concurrently with
the state sentence in the judgment by stating:
(a) “Said sentence to run concurrently with the state
sentence the defendant is presently serving.”
(b) “Sentence to run concurrently with sentence
imposed in Peoria County Circuit Court, 13 CF 89,
April 12, 2013.”
(c) “That the defendant serve his sentence at the
state facility, i.e. Illinois Department of Corrections.

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Recap/Practical Tips:
2. If a federal sentence is ordered to run concurrently

with a state sentence in which the state has primary
custody, the federal sentence will not begin to run until
the date the federal sentence is imposed. The federal
sentence will not be credited with any of the state time
earned prior to the date of the federal sentencing.
3. Regardless of which authorities have primary custodial
jurisdiction, if the defendant is sentenced in state court
prior to being sentenced in federal court, there will
likely be an increase in the defendant’s criminal history
in federal court. If possible a defendant should be
sentenced in federal court first.

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Recap/Practical Tips:
4. If the defendant is released from custody of the

authority with primary custodial jurisdiction
(dismissal of charges or release on bond), primary
jurisdiction may shift to the other authority.
5. The court may order concurrent service of the federal
sentence at some time after its imposition if for
instance the primary jurisdiction resided with the state
and the court mistakenly believed the inmate was in
federal custody for service of the federal sentence on
the date of imposition. (See PS 5160.05, section 9).

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Final Note: State Detainers

• State detainers can increase a client’s security level and
disqualify them from participating in programs in the
BOP (i.e. RDAP program) as well as halfway house
placement.

Defending Concurrent State and Federal Charges

April 12, 2013

Presenter:

Ronald L. Hanna
CJA Panel Attorney
Hanna & Hanna, P.C.
Peoria, IL
[email protected]
www.hannaandhannalaw.com

State v. Federal Custody and Service of Multiple Sentences

Reprinted with Permission by the author, David Beneman, Maine CJA Resource Counsel

NOTE: This article was last updated in 2008 and references a circuit split on the issue of whether a
federal court is authorized to impose a term of imprisonment to be served consecutively to a future
state sentence. The Supreme Court subsequently held in Setser that a district court has the discretion to
order that a federal sentence run consecutively to an anticipated state sentence that has not yet been
imposed. Setser v. U.S., 132 S. Ct. 1463 (2012).

State v. Federal Custody and Service of Multiple Sentences1

Last Updated: March 16, 2008

I have been getting many calls from attorneys with clients being prosecuted in both State and
Federal Courts. It used to be once the feds took over a case the state dismissed. Now we seem to
have dual prosecutions and sentences. Clients and attorneys need to know where clients will serve
any sentence imposed. The answer lies in who has “primary custody” also known as “primary
jurisdiction.” Whoever first detains the client is the primary custodian. In my experience this
is usually the state. Below I provide the federal Bureau of Prisons (BOP) explanation. Counsel’s
first inquiry must be of the client; do you want to do your time in a State or federal facility ?

Federal Time First.
If a client was arrested first by the feds and there is a federal detainer before any state charges, the
client is in federal primary custody and upon sentencing will go to a federal facility. Later the
client can go by a writ to the State, plea to a state charge and be sentenced to state time concurrent
to a federal sentence already imposed. The Feds then take the client back as the feds are the primary
custodian. The client is in a federal facility which may be much better than a state prison. The client
gets credit for two sentences at once. The Feds foot the bill. The State will probably have to pay for
transport costs on the writ, but if the state writ enters right after the federal sentence, the client is
probably near state court and there will be little to no cost to the state. Obviously this is only an
advantage if the client wants to do time in a federal facility.

If your client is first arrested by the state and is then charged by the feds, unless the client
is bailed by the state, primary jurisdiction is with the state. If the client wants to do the sentence
in a federal facility, this is bad. The client must be in primary federal jurisdiction to go to a
federal facility first. The only way to achieve this is for the state to end their jurisdiction, at least
temporarily, then assuming a federal detainer is in place, the client defaults to primary federal
jurisdiction. The State can later re-assert jurisdiction by writ, but it will be secondary to the feds.2

1 This paper is provided as a starting point for those doing research. It does not
answer every question and is not “legal advice”. Defendants are urged to fully discuss the
facts of their cases with their attorneys both state and federal.

2 However even this is not guaranteed, see for example People v. Alba, 730 N.Y.S.2d
191, 196-97 (N.Y. Sup. Ct. 2001) (recognizing that a court of primary jurisdiction does not lose
its rights as such when it delivers a defendant to a court of secondary jurisdiction for a pending
matter in the secondary jurisdiction). In Alba the court finds a State DOES NOT lose primary
jurisdiction by granting a defendant bail, although the case may be somewhat limited to NY state
law.

1