Federal Sentencing Attorney Michael Petro Explains Concurrent Sentences
A federal judge may order a federal prison sentence to run concurrently with, partially concurrently with, or consecutively to an undischarged state sentence. The result can determine whether the defendant receives meaningful credit for time already spent in state custody or serves additional years after completing the state sentence.
Concurrency is not automatic, even when the state and federal cases arise from the same events. If you are facing federal sentencing while serving or awaiting a state sentence, contact federal criminal defense attorney Michael J. Petro before the federal sentence is imposed.
Can State and Federal Sentences Run Concurrently?
Yes. Under 18 U.S.C. § 3584, a federal judge generally has authority to decide whether a federal sentence will run concurrently with or consecutively to another term of imprisonment.
The court must consider the federal sentencing factors under 18 U.S.C. § 3553(a), including:
- The nature and circumstances of the federal offense
- The defendant’s history and characteristics
- The need for punishment and deterrence
- The need to protect the public
- The available sentencing options
- The advisory sentencing guideline range
- The need to avoid unwarranted sentencing disparities
The applicable recommendation under USSG § 5G1.3 depends on the relationship between the state and federal offenses.
When USSG § 5G1.3(a) Recommends a Consecutive Sentence
Under USSG § 5G1.3(a), a consecutive sentence is recommended when the defendant committed the federal offense while serving another term of imprisonment.
This provision also covers certain situations in which the defendant committed the federal offense after being sentenced for another offense but before beginning that sentence.
The advisory guideline recommendation is that the federal sentence run consecutively to the undischarged term.
When USSG § 5G1.3(b) Recommends Concurrency and an Adjustment
Subsection (b) applies when the undischarged state sentence resulted from another offense that qualifies as relevant conduct to the federal offense under the guideline’s specified relevant-conduct provisions.
When subsection (b) applies, the guideline instructs the court to:
- Adjust the federal sentence for time already served on the undischarged sentence if the Bureau of Prisons will not credit that time
- Order the federal sentence to run concurrently with the remainder of the undischarged sentence
This provision is designed to prevent duplicative punishment when the conduct underlying the state sentence has already been incorporated into the federal guideline calculation.
The court must first determine the correct advisory recommendation under § 5G1.3(b). After calculating that recommendation, it may consider whether a different final sentence is warranted under § 3553(a).
When the Court Has Broad Discretion Under USSG § 5G1.3(d)
Subsection (d) applies in other cases involving an undischarged prison sentence. The federal court may impose a sentence that runs:
- Concurrently
- Partially concurrently
- Consecutively
The goal is to produce a reasonable punishment for the federal offense.
The court may consider the length and nature of the state sentence, the amount of time already served, the anticipated release date, whether the state sentence was imposed by a different court, and any other circumstance relevant to achieving a fair overall punishment.
United States v. Campbell
In United States v. Campbell, 617 F.3d 958 (7th Cir. 2010), Lervon Campbell was serving a Wisconsin state sentence after his supervised release was revoked. He later received a 15 year federal mandatory minimum sentence for possessing a firearm as a convicted felon.
The federal judge ordered the federal sentence to run concurrently with the remaining state sentence but believed the court lacked authority to account for approximately nine months Campbell had already served in state custody.
The Seventh Circuit vacated the sentence. It explained that § 5G1.3 provides important guidance but does not eliminate the district court’s sentencing discretion after United States v. Booker. The court had authority to consider the previously served state time when determining an appropriate federal sentence.
The mistake required resentencing because the district court incorrectly believed its discretion was more limited than it actually was.
The Eleventh Circuit Recognizes Sentencing Discretion
In United States v. Henry, 1 F.4th 1315 (11th Cir. 2021), the defendant was serving a 20 year state burglary sentence when he received a federal sentence for possessing a firearm as a convicted felon.
The Eleventh Circuit explained that the sentencing court must properly consider § 5G1.3 when calculating the advisory sentencing recommendation. However, every provision of the sentencing guidelines is advisory after Booker.
The court must:
- Calculate the applicable guideline recommendation, including any § 5G1.3 adjustment.
- Consider the statutory factors under § 3553(a).
- Select a reasonable final sentence.
The federal judge may vary from the guideline recommendation after considering it correctly. The judge cannot skip the initial calculation or mistakenly conclude that no authority exists to consider concurrency or previously served time.
Anticipated State Sentences
A federal court may also decide whether its sentence will run concurrently with or consecutively to a state sentence that has not yet been imposed.
In Setser v. United States, 566 U.S. 231 (2012), the Supreme Court held that federal district courts possess discretion to make that determination. The sentencing judge, not the Bureau of Prisons, has the primary responsibility for deciding how the federal sentence relates to an anticipated state sentence.
This makes it critical to address pending state charges and likely state sentencing consequences at the federal hearing.
A State Court’s Order Does Not Control the Federal Sentence
A state judge may order a state sentence to run concurrently with a federal sentence. That direction does not necessarily bind the federal court or the Bureau of Prisons.
The federal judgment, the order in which the sentences were imposed, primary custody, the federal sentence’s commencement date, and the Bureau of Prisons’ credit calculation can all affect the time the defendant actually serves.
The defense should not assume that the word “concurrent” in one judgment guarantees full credit against both sentences.
Building the Argument for Concurrency
A persuasive sentencing request should explain:
- Whether the state conduct qualifies as federal relevant conduct
- Whether that conduct increased the federal offense level
- How much state time the defendant has already served
- Whether the Bureau of Prisons will credit that time
- The expected state release date
- The total punishment created by consecutive sentences
- Why concurrency satisfies the purposes of § 3553(a)
- Why additional consecutive time would be greater than necessary
The defense should request precise language in the federal judgment identifying whether the sentence is concurrent, partially concurrent, or consecutive and specifying the sentence to which that direction applies.
Federal Sentencing Representation in Tampa and Chicago
Michael J. Petro represents defendants in federal sentencing proceedings, resentencing hearings, and criminal appeals. He addresses concurrent sentencing, credit for state custody, guideline adjustments, and sentencing errors that can dramatically affect a defendant’s release date.
The concurrency decision can determine whether you serve months or years of additional imprisonment, so protect your time and contact federal criminal defense attorney Michael J. Petro.