Some Further Thoughts on It’s a Mandatory Ten Years Total, Not a Mandatory Ten Years Federal

September 20, 2016
By Hanging Out with Carl Gunn


  • You can argue for an adjustment to the statutory mandatory minimum for time served on another sentence for related conduct even when the other sentence has been completed.
  • The reasoning in cases from other circuits that reject such an adjustment overlook a parallel guideline provision, brush past the question of what makes up the statutory mandatory minimum, and also ignore several general principles of statutory construction.
  • If the mandatory minimum statutes are interpreted as suggested in the cases from other circuits, there’s a strong argument that they fail even the minimal rational basis test of the Due Process Clause.



Last spring, I put up a post pointing you to case law holding that mandatory minimum provisions like those in the Armed Career Criminal Act and drug statutes are satisfied by the federal sentence plus time already served on a sentence for related conduct that the defendant was still serving.  (See “It’s a Mandatory Ten Years Total, Not a Mandatory Ten Years Federal” in the March 2016 link at the right.)  Put another way, the mandatory federal sentence is the mandatory term less the time already served on the other sentence.

I did caution in the prior post that several circuits have held a sentencing court can make this adjustment to the federal sentence only if the other sentence is still being served and can’t make the adjustment if the other sentence has already been completed, see United States v. Lucas, 745 F.3d 626 (2d Cir.), cert. denied, 135 S. Ct. 150 (2014); United States v. Cruz, 595 F.3d 744 (7th Cir. 2010); United States v. Ramirez, 252 F.3d 516 (1st Cir. 2001), so you should try to get your client sentenced before the other sentence has fully run.  (And remember the other sentence will generally continue running while your client’s in federal custody on the writ of habeas corpus ad prosequendum used to bring him over, so it could be completed before the new federal sentence is imposed even if it’s not completed when the client’s brought over.)  Those cases do hold that and that means it’s a good idea to get your client sentenced before the other sentence has run if that’s possible, since the Ninth Circuit might follow those other circuits.  Still, there’s a good argument the other circuits are wrong and the Ninth Circuit (or any other circuit that hasn’t yet ruled on the issue) shouldn’t follow the other circuits.

I recently briefed this issue in a pending appeal where the government didn’t charge my client until he’d already been released from the state sentence and started – rather successfully – making a new life.  I’ve attached the full brief here (with this issue addressed at pages 24-27), but let me also offer a brief summary of the argument.  (Well, maybe what follows is more than a brief summary, maybe even more than a summary.)

To begin, there are at least three weaknesses in the limiting cases’ reasoning.  First, they rely on the fact that the concurrent sentencing provisions in 18 U.S.C. § 3584 and § 5G1.3(b) are inapplicable to a fully discharged term of imprisonment.  See Lucas, 745 F.3d at 629-30; Cruz, 595 F.3d at 746; Ramirez, 252 F.3d at 519.  This ignores another guideline provision, § 5K2.23, which expressly incorporates § 5G1.3(b), by suggesting a downward departure “if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a Defendant Subject to Undischarged Term of Imprisonment or Anticipated Term of Imprisonment) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense.”  U.S.S.G. § 5K2.23.

Second, the limiting cases err in relying on reasoning that a court cannot depart below a statutory mandatory minimum absent some other specific statutory authority, such as 18 U.S.C. § 3553(e) (the cooperation provision) or 18 U.S.C. § 3553(f) (the safety valve provision).  See Lucas, 745 F.3d at 629-30; Cruz, 595 F.3d at 746.  This begs the question of what the statutory mandatory minimum is made up of.  The cases allowing adjustment for time served on uncompleted sentences held the statutory mandatory minimum is made up of the newly imposed federal sentence plus any time already served on a sentence for related conduct.  That could include time served on an already completed sentence just as easily as it includes time served on a sentence still being served.

Finally, the limiting cases offer no explanation for not extending the broader reading of the statutory “imprisoned” and “sentenced” language in the cases considering uncompleted sentences.  (See my linked brief or the prior post for a more detailed discussion of this reading of that statutory language.)  While “imprisoned” and “sentenced” could be read to refer to just the federal sentence, that reading has been rejected.  Reading the words to include some previously served custody time and not other previously served custody time is reading a distinction into the statutes that is simply not there.  And there is no principle of construction requiring such a reading.

There are also several general principles of statutory construction you can point to.  First, you can point to contrasting language in another mandatory minimum provision – 18 U.S.C. § 924(c)(1) – which expressly prohibits concurrent sentences, see 18 U.S.C. § 924(c)(1)(D)(ii) (stating 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”); this triggers the principle that the use of limiting language in one statutory provision and the failure to use the limiting language in a second statutory provision suggests an intent that the limitation not apply to the second provision, see, e.g., United States v. Johnson, 529 U.S. 53, 57-58 (2000); United States v. Wipf, 620 F.3d 1168, 1171 (9th Cir. 2010); United States v. Youssef, 547 F.3d 1090, 1094-95 (9th Cir. 2008).  Second, you can point to what the Supreme Court itself has called the “venerable rule of lenity,” United States v. R.J.C., 503 U.S. 291, 305 (1992), which requires that “ambiguities concerning the ambit of criminal statutes should be resolved in favor of lenity to the defendant,” United States v. Wing, 682 F.3d 861, 874 (9th Cir. 2012).  This principle, in language particularly pertinent here, is “rooted in ‘“the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.”’”  R.J.C., 503 U.S. at 305 (quoting United States v. Bass, 404 U.S. 336, 348 (1971), and H. Friendly, Benchmarks 209 (1967)).

Finally, there is the “canon of constitutional avoidance,” which requires a court choosing between two plausible statutory constructions to adopt the one which would not raise constitutional questions, Clark v. Suarez Martinez, 543 U.S. 371, 380-81 (2005).  Construing mandatory minimum statutes to allow adjustment for time served on a previously imposed sentence only when the defendant is still serving the sentence would raise a serious equal protection and due process question.  Indeed, one court has actually found a constitutional violation.  It reasoned:

No rational basis for this distinction exists. . . . [United States v.] Blackwell[, 49 F.3d 1232 (7th Cir. 1995),] observed two decades ago that “distinguishing between two defendants merely by virtue of their sentencing dates appears contrary to the Guidelines goal of eliminating unwanted sentencing disparities,” 49 F.3d at 1242, and Cruz observed more recently that “[t]he adjustment . . . for the portion of the state sentence that the defendant had already served was necessary to avoid a situation in which the happenstance of how much of the prior sentence has been served when the federal sentence is imposed would determine the length of the defendant’s imprisonment,” 595 F.3d at 746. [Section] 3584 creates a situation where mere happenstance determines whether the court has the discretion to impose a federal sentence below the statutory minimum to account for his time in state custody.  That “arbitrary distinction” lacks plausible justification and therefore violates due process.  (Citation omitted.)

United States v. Hill, — F. Supp. 3d — , No. 11 CR 667-4, 2016 WL 2937023, at *6 (N.D. Ill. May 20, 2016).

This last, district court opinion also suggests another, constitutional avenue of attack.  There really does seem to be no rational basis for distinguishing between sentences already completely served and sentences still being served.  Worse, whether the sentence is completely served or just partially served is a matter of pure happenstance, depending on things like when prosecutors get around to filing the federal case (or worse, whether they deliberately delay to prevent the defendant from asking for an adjustment under § 5G1.3), how quickly the United States Marshal executes the writ of habeas corpus ad prosequendum if the other sentence is still being served at the time the federal case is filed, how quickly the state prison authorities respond to the United States Marshal, how quickly the defense can move the case along to sentencing once the defendant is transferred into federal custody, how quickly the judge sets the case for sentencing, and all sorts of other factors that have nothing to do with culpability or any of the other 18 U.S.C. § 3553(a) factors.

So, at least in our circuit, don’t give up on arguing for a § 5G1.3 adjustment of the mandatory minimum provisions, through the § 5K2.23 departure provision, even when your client’s completely served the other sentence.  Logic and fairness weigh in our favor even if out-of-circuit case law doesn’t.