BLOG BULLETS:

• Remember the § 5G1.3 guideline rules on running sentences concurrently with already existing sentences for relevant conduct and also reducing the guideline range by the time already served on the existing sentence.
• Case law has extended this principle to statutory mandatory minimum sentences, so mandatory minimums are also reduced by time already served on an existing sentence.
• You should make sure your client is sentenced before the existing sentence is fully served because other cases have distinguished sentences which are fully served and held mandatory minimums can’t be reduced for time served on a fully served sentence.

 

NOW THE BLOG:

An important sentencing guideline to remember when you have a client who’s still serving another sentence is § 5G1.3, which I’ve touched on in a couple of past posts (see “Sometimes (Though Perhaps Not Often) Relevant Conduct Can Be a Good Thing” and “Some Modest (or Immodest, as the Case May Be) Proposals for Our Clients’ Multiple State and Federal Cases” in the November 2014 and May 2012 links at the right).  Subsection (a) of section 5G1.3 provides that the new sentence be consecutive to the undischarged sentence if the offense for which the new sentence is being imposed was committed while the previous sentence was being served or after it had been imposed.  Subsection (b) provides that the new sentence should (1) run concurrently to any undischarged sentence for offense conduct that’s part of the relevant conduct for the new sentence and (2) be adjusted downward by the time already served on the undischarged sentence (so long as the court determines the BOP won’t credit the time against the new sentence).  Subsection (d) then covers all undischarged sentences that fit into neither of these other categories; it provides the new sentence should be run concurrently, partially concurrently, or consecutively to the extent necessary “to achieve a reasonable punishment for the instant offense,” or as described in the commentary, a “reasonable incremental punishment,” U.S.S.G. § 5G1.3, comment. (n.4(A)).  There’s also a related provision in § 5K2.23 for sentences which have been fully served; it recognizes a departure may be appropriate when § 5G1.3(b) would have applied if the defendant had not yet completed the prior sentence.

What may be less familiar to some of you is case law that extends the principles underlying § 5G1.3 to mandatory minimum sentences.  The question of how an undischarged sentence affects a mandatory minimum sentence first arose in United States v. Kiefer, 20 F.3d 874 (8th Cir. 1994), which was an Armed Career Criminal Act case.  The court posed the question as follows:

Section 924(e)(1) provides that, if a person with three prior violent felony convictions violates § 922(g), “such person shall be . . . imprisoned not less than fifteen years.”  The issue here, as we see it, turns on the meaning of the word “imprisoned”: when the Guidelines mandate that state and federal sentences be served concurrently, is a defendant “imprisoned” for purposes of the mandatory minimum federal sentence during the time he serves on the concurrent state sentence prior to his federal conviction?

Kiefer, 20 F.3d at 876.  The court then answered this question as follows:

It can . . . be argued that the time Kiefer served in state prison for these different offenses may not be considered time he was “imprisoned” for purposes of § 924(e)(1).  But that restrictive construction would frustrate the concurrent sentencing principles mandated by other statutes.  Unlike a § 924(c)(1) mandatory minimum sentence, which may not be made concurrent with the sentence for any other offense, § 924(e)(1) does not forbid concurrent sentencing for separate offenses that were part of the same course of conduct.  (Footnote omitted.)  In the circumstances, although the issue is not free from doubt, we conclude that time previously served under concurrent sentences may be considered time “imprisoned” under § 924(e)(1) if the Guidelines so provide.

Kiefer, 20 F.3d at 877.  At least three other circuits, including the Ninth, have followed Kiefer.  See United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000); United States v. Dorsey, 166 F.3d 558, 564 (3d Cir. 1999); United States v. Drake, 49 F.3d 1438, 1440-41 (9th Cir. 1995).

The Second Circuit, in United States v. Rivers, 329 F.3d 119 (2d Cir. 2003), and the Seventh Circuit, in United States v. Hernandez, 620 F.3d 822 (7th Cir. 2010), have extended Kiefer to the drug mandatory minimum sentence provisions in 21 U.S.C. § 841(b).  Rivers acknowledged but rejected a government argument that Kiefer and cases following it depended on the particular wording of the Armed Career Criminal Act.

The government attempts to distinguish the above-cited circuit cases, in that the statute at issue in those cases is different from the statute involved here.  Those cases involve statutory minimum sentences pursuant to the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(1), which states that the offender “shall be . . . imprisoned not less than fifteen years .  .  .  .” Id. (emphasis added).  In contrast, the statute here requires that the offender “be sentenced to a term of imprisonment which may not be less than 5 years.”  21 U.S.C. § 841(b)(1)(B) (emphasis added).
This linguistic variance is a distinction without a difference.

Rivers, 329 F.3d at 122.  Accord Hernandez, 620 F.3d at 824 (concluding that “the linguistic difference” was “irrelevant” and that “[t]o permit this slight difference in wording to alter the outcome in this case would ‘exalt form over substance,’ subverting the spirit of Ross” (quoting Ross, 219 F.3d at 594)).  Rivers then quoted and expanded upon a point made in the Ninth Circuit case which followed Kiefer:

“[W]hen Congress intended that the statutory mandatory minimums not be affected by the requirements of concurrent sentencing, it made its intent quite clear.”  Drake, 49 F.3d at 1441 n.5 (citing 18 U.S.C. § 924(c)(1)).  The adjustments under U.S.S.G. § 5G1.3(b) are “derivative” of the concurrent sentencing scheme.  (Citation omitted.)  A rule that, without any underlying rationale or congressional direction, would disallow adjustments for some statutes while allowing them for others, “would frustrate the concurrent sentencing principles mandated by other statutes.”  Kiefer, 20 F.3d at 877.

Rivers, 329 F.3d at 122-23.  The statute cited as distinguishable – 18 U.S.C. § 924(c)(1) – expressly states that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.”  18 U.S.C. § 924(c)(1)(D)(ii).

Under this case law, it’s not just the guideline range that gets adjusted for the time a defendant has already served on an undischarged sentence.  The mandatory minimum sentence gets adjusted in the same way.  Allowing such adjustments is necessary to avoid frustrating the concurrent sentencing principles in both 18 U.S.C. § 3584, which gives courts “discretion to determine whether the sentence ultimately imposed should be concurrent or consecutive to an undischarged term of imprisonment,” Drake, 49 F.3d at 1440, and § 5G1.3 of the guidelines, which guides that discretion.

Note that this broad focus on reconciling mandatory minimum provisions with these concurrent/consecutive provisions suggests Kiefer, Rivers, and their progeny aren’t limited to time served on only undischarged sentences that are based on relevant conduct and so subject to § 5G1.3(b).  They should also apply to time served on undischarged sentences for unrelated conduct that are subject to the “reasonable incremental punishment” directive of § 5G1.3(d).  And at least the Seventh Circuit has so held.  See Hernandez, 620 F.3d at 823-24; United States v. Campbell, 617 F.3d 958, 961-62 (7th Cir. 2010).

There is one trap in this mandatory minimum case law to keep in mind.  At least in the view of the courts which have considered the issue (which does not include the Ninth Circuit to date), it doesn’t apply when the prior sentence is not “undischarged,” i.e., when it’s been completely served.  See United States v. Lucas, 745 F.3d 626, 628-29 (2d Cir. 2014); United States v. Cruz, 595 F.3d 744, 745 (7th Cir. 2010); United States v. Ramirez, 252 F.3d 516, 519 (1st Cir. 2001).  So don’t delay the sentencing in your new case so long that the prior sentence expires.