Sentencing: consecutive v. concurrentCan a district court impose a federal sentence and then order that it run consecutively to a future federal sentence? Nope, says the Tenth Circuit in United States v. Ramon, such an order is disallowed by 18 U.S.C. § 3584(a):Imagine Congress allowing what happened here. Obviously, the later sentencing court may well resent the preemptive strike or even just disagree with consecutive time.

United States v. Donoso, 521 F.3d 144, 149 (2d Cir. 2008). This was based on an interpretation of the relevant statutory provision, 18 U.S.C. § 3584(a), as limiting the availability of consecutive sentences to instances when “multiple terms of imprisonment are imposed on a defendant at the same time,” or “a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment.” In Setser, however, the Supreme Court adopted a contrary interpretation of Section 3584(a), holding that district courts were permitted to order a federal sentence to run consecutively “where a federal judge anticipates a state sentence that has not yet been imposed.”

As a result, Mangum filed a timely notice of appeal on January 27, 2015.As to Mangum’s claims relating to the calculation and execution of his sentence, the Fourth Circuit found that the district court properly denied relief and affirmed the judgment. However, the Fourth Circuit found that the BOP incorrectly applied 18 U.S.C. § 3584(a) in its refusal to grant Mangum nunc pro tunc relief. According to the BOP, where the federal sentencing judge is silent as to the court’s intention, a presumption exists that the federal sentence should be deemed to run consecutively to the later imposed state sentence. Instead, following the Supreme Court’s analysis in Setser v. United States, the Fourth Circuit agreed with Mangum’s assertion that the federal judge’s silence does not invoke a statutory presumption that the federal sentence is intended to be a consecutive sentence.

Furthermore, Sester v. United States, 132 S.Ct. 1463 (2012), which recognizes a federal court’s ability to order a federal sentence run concurrent with an yet imposed state sentence (a scenario that would present where the state has primary custody and the state case does not resolve before the federal case), expands the opportunity for a federal sentence to capture time served in state custody. See 18 U.S.C. §§ 3584, 3585.The BOP treats unresolved charges as carrying a detainer, even when none has been lodged. This results in additional security points and possibly placement at a more secure institution, particularly for individuals who otherwise qualify for minimum-security placement.

Nor would it necessarily be a good idea to ask for such a sentence the next time you are in federal court. The applicable federal statute, 18 U.S.C. 3584, talks about consecutive and concurrent sentences, but not coterminous sentences. But you could ask for a downward adjustment or downward departure under USSG 5G1.3.

Monroe Ace Setser v. U.S., USSC No. 10-7387, 3/28/12, affirming 607 F.3d 128 (5th Cir 2010)District courts have authority to make a sentence for a federal offense consecutive to an anticipated, but not-yet imposed state sentence. Sentencing Reform Act of 1984, 18 U. S. C. §3584, construed.It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes . . .were enacted,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989), and the same approach is appropriate here, where the issue concerns a matter of discretion traditionally committed to the Judiciary. Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.

It does not seem as though the district court realized it was going above the range, which had already accounted for the multiple counts by virtue of the grouping rules. The district court simply relied on 18 U.S.C. § 3584(b), which permitted consecutive sentences. The 10th saw no double-counting problem because the statute is different from the guidelines.