USA V. Hector Cruz.  08-4194  (7th Cir. 02/11/2010).

The opinion of the court was delivered by: Posner, Circuit Judge.

Hector Cruz challenges his 10-year mandatory-minimum sentence for conspiring to sell illegal drugs. 21 U.S.C. § 841(b)(1)(A). He had previously been convicted in an Illinois state court of a state drug offense that the parties agree was "relevant conduct" in the federal prosecution, relevant conduct being defined as actions "that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

Although he was released (on parole) from state prison before being sentenced for the federal offense, he argues that the 18 months he served in state prison should be deducted from his 10-year federal sentence.

The government agrees with Cruz and has confessed error on the district court. We do not agree; nor do federal prosecutors in other districts.  A defendant may be given a sentence below a statutory minimum only if he either has rendered substantial assistance to the government or satisfies specified criteria designed to mitigate a harsh sentence for a drug offense. 18 U.S.C. §§ 3553(e), (f). Neither ground is available to Cruz.

But when a defendant is convicted of two or more crimes arising from the same course of conduct, the judge may (with immaterial exceptions) impose concurrent sentences; if the sentences are imposed by different judges, the later-sentencing judge can impose a concurrent sentence. 18 U.S.C. § 3584. (On the complexities involved in concurrent federal and state prison sentences, unnecessary to address in this case, see Romandine v. United States, 206 F.3d 731, 737-39 (7th Cir. 2000).)

The district judge could have imposed a concurrent sentence in this case had Cruz not already been released from state custody. But he had; and although he was paroled rather than released unconditionally, his state sentence was "discharged" for purposes of deciding whether the federal judge could impose a concurrent sentence; and thus the judge could not. United States v. Pray, 373 F.3d 358 (3d Cir. 2004), and cases cited there; see also Prewitt v. United States, 83 F.3d 812, 817-18 (7th Cir. 1996).

If while Cruz still had 18 months to serve on his state sentence he had been sentenced on the federal charge, the district judge could have made the federal sentence run concurrently with the state sentence rather than begin when he completed that sentence. And then instead of facing imprisonment for a total of 10 years and 18 months he would be facing imprisonment for only 10 years.

But since he had finished serving his state sentence when he received the federal sentence, there was no sentence to make his federal sentence concurrent with. What he is seeking is not a concurrent sentence but a sentencing reduction on account of a sentence previously served.

The government's confession of error is based on an excessively broad interpretation of our decision in United States v. Ross, 219 F.3d 592 (7th Cir. 2000).

The federal sentence was for a gun offense, in violation of 18 U.S.C. § 924, which provides that certain violators "shall be imprisoned . . . not less than fifteen years," id., § 924(e)(1), and we pointed out that "the statute does not specify any particular way in which that imprisonment should be achieved." 219 F.3d at 595. The statute under which Cruz was sentenced provides in contrast that the offender "shall be sentenced to a term of imprisonment which may not be less than 10 years." 21 U.S.C. § 841(b)(1)(A) (emphasis added). The language does not permit a shorter sentence to be imposed unless one of the exceptions in 18 U.S.C. §§ 3553(e) and (f) is available.

The approach that we took in Ross eliminated an arbitrary feature of concurrent sentencing. But, perhaps unfortunately, the approach is not available in the present case, because there is no concurrent sentence and cannot be one when the defendant is no longer "subject to an undischarged term of imprisonment." 18 U.S.C. § 3584(a). 

The confession of error is rejected and the judgment is AFFIRMED.

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