The Supreme Court’s recent decision in Setser v. United States, 132 S. Ct. 1463 (2012) on the power of a federal judge to order consecutive sentences brought to mind a problem that we run into not infrequently in federal criminal defense practice. The problem is how to make sure a state sentence which the state prosecutor agrees should be concurrent actually ends up being concurrent. Setser highlights – though in a less common form – the potential problem of a federal judge trying to override a state judge’s order that a state sentence be concurrent by ordering that the federal sentence be consecutive.

I thought I’d share a way in which I’ve avoided this problem that won’t always work but is worth giving a try. To appreciate the idea, you need to remember two things about custody in a federal jail waiting for sentencing in a federal case. First, if your client is in the federal jail only because he’s been “borrowed” from the state on a federal writ of habeas corpus ad prosequendum, the time will not be credited against the federal sentence ultimately imposed, unless there’s ultimately no state custody sentence imposed or the state sentence is shorter than the time your client has spent in combined state and federal custody. But conversely, if your client is in the federal jail as a federal prisoner rather than as a state prisoner who’s been “borrowed” on a writ, the time spent in the federal jail has to be credited against the federal sentence, even if a state judge’s order provides that it’s also got to be credited against a state sentence.

This suggests the following approach for assuring that a state judge’s concurrent sentence order controls over a federal judge’s consecutive sentence order when there’s a federal detainer on the client while he’s in state custody on his state case. That’s to have your client’s attorney in the state case (or you, if you’re representing the client in both cases) negotiate a plea agreement that includes the following steps: (1) the client will enter the agreed upon plea as soon as possible, with an agreement (a) as to what the state sentence will be, (b) that the state sentence will be concurrent with any federal sentence imposed, and (c) that the state sentence may be served in a federal institution; (2) the state agrees that the client will be granted an own recognizance bond once the plea is entered, which will result not in your client’s release to the street but in his release on the federal detainer into federal custody; and (3) your client agrees he may be sentenced in absentia, which saves the state the trouble of getting a writ and paying to have your client transported back from federal custody for the state sentencing hearing. A reasonable state prosecutor might agree to this in the right circumstances because (1) it’s a way to settle the case and avoid trial; (2) the federal detainer means the own recognizance bond doesn’t put your “dangerous” client out on the street, but simply transfers him into federal custody; and (3) the agreement to being sentenced in absentia means there’s no additional expense in bringing the client back for sentencing. In fact, there’s a saving of state funds because the client will be moved from the local county jail to a federal jail and serve his sentence in a federal prison instead of a state prison.

Lest you think a state prosecutor would never agree to this, I’ve had at least a couple of cases in which the state prosecutor did agree. And under the credit rules laid out two paragraphs above, it means the federal sentence can’t be made consecutive, as theSetser opinion recognized might sometimes happen. Cf. id., 132 S. Ct. at 1473 (acknowledging that “[t]here will often be late-onset facts that materially alter a prisoner’s position and that make it difficult, or even impossible, to implement [a consecutive] sentence”).

If you can’t get the foregoing worked out in state court and your client gets brought over here on a writ of habeas corpus ad prosequendum while still in state custody – either before or after sentencing – there’s still a potential way to make the state and federal sentences concurrent, though it requires convincing the federal prosecutor (who controls plea negotiations) and/or the federal judge (who controls sentencing). With the right facts, you may have the sentencing guidelines on your side – in the form of section 5G1.3(b) and section 5K2.23.

Section 5G1.3(b) provides for two things when the defendant is serving an undischarged state sentence of imprisonment for an offense that gets considered as relevant conduct in calculating the guideline range for the federal offense. The first thing section 5G1.3(b) requires is that the federal sentence be run concurrent with the undischarged state sentence. The second thing section 5G1.3(b) requires is that the federal sentence be adjusted downward by the amount of time the defendant has already served on the undischarged state sentence. This is necessary to make the sentences fully concurrent, because federal Bureau of Prisons regulations won’t allow credit for the time served prior to coming into federal custody or the time the defendant was technically a state prisoner who was in federal custody only because he was brought over on a writ of habeas corpus ad prosequendum. See Bureau of Prisons Policy Statement 5880.28, at 1-17, 1-20B-21, available at www. bop.gov/policy/progstat/5880_028.pdf-2004-11-30. See also Schleining v. Thomas, 642 F.3d 1242 (9th Cir. 2011) (recognizing court lacks authority to make sentence retroactively concurrent to date prior to date it imposes sentence). And note that these two remedies aren’t optional under the guidelines but are required (though the ultimate guideline range is of course advisory). See United States v. Armstead, 552 F.3d 769, 784 (9th Cir. 2008).

While section 5G1.3(b) applies only if the state sentence is “undischarged,” there’s the other provision – section 5K2.23 – which applies if the state sentence is fully served. That section provides for the court to consider a downward departure when section 5G1.3(b) would have applied if the defendant had been sentenced before his state sentence was over. Section 5K2.23 thereby encourages the court to reach the same result for discharged state sentences that section 5G1.3(b) requires for undischarged state sentences.

Finally, don’t give up if 5G1.3(b) doesn’t apply because the state offense doesn’t get considered as relevant conduct in calculating the guideline range for the federal offense. There’s a very good, logical Booker variance argument to make based on the haphazard disparity resulting from the separate prosecution of the state and federal cases. Point out that the multiple counts rules in Part 3D of the guidelines manual would have applied if your client had been prosecuted and sentenced for both offenses in the same federal court at the same time and calculate what the combined guideline range would have been under those rules. If the resulting guideline range is less than the sum of the state sentence and the guideline range for the federal offense being prosecuted separately, argue that there’s an unwarranted disparity resulting simply because of the way the state and federal authorities decided to prosecute the offenses. Then argue for a variance down to what the combined guideline range would have been if the sentences for the two offenses had been imposed at the same time in the same court.

All or some of these options are worth pursuing in sentencing for clients who’ve already gotten – or are facing – a separate state sentence. Keep them in mind and give them serious consideration when you have that situation.

By the way, and on another note, see AFPD Steve Sady’s blog on the Ninth Circuit defender blog at http://circuit9.blogspot.com/2012/03/putting-compassion-into-compassionate.html for a way to use Setser in our favor to get a compassionate release from the BOP under 18 U.S.C. 3582(c).