BLOG BULLETS:

• Section 5G1.3 of the guidelines requires a court to take an already existing sentence into account when sentencing for a second offense if the already existing sentence is for an offense that qualifies as relevant conduct, by (1) making the sentence for the second offense concurrent and (2) reducing the second sentence by time already served on the first sentence.
• There used to be an additional requirement that the relevant conduct underlying the first sentence be of sufficient magnitude to increase the offense level for the second offense, but this requirement is eliminated by a guideline amendment that took effect November 1.
• This guideline, especially as amended, means you’ll sometimes want to argue for a broader sweep of the relevant conduct guideline rather than the narrower sweep you’d normally argue for.

NOW THE BLOG:

The new guidelines amendments just took effect on November 1. The big one, of course, is the across-the-board 2-level reduction in drug offense levels, and the decision to make that guideline amendment retroactive. But there’s another one worth noting, especially because it’s one that we might overlook and that might require counterintuitive arguments.

It’s an amendment to § 5G1.3(b) of the guidelines, which deals with how a court should take into account a term of imprisonment the defendant is already serving for another offense. For example, your client might be serving a term of imprisonment for a state drug conviction when he gets brought over to federal court on a federal drug charge. Or he might be serving time on a state robbery, assault, or homicide conviction when he gets brought over on a felon in possession charge based on the gun he used in the robbery, assault, or homicide.

Section 5G1.3 tells the court that it has to take this term of imprisonment into account if the already existing sentence is for an offense that’s relevant conduct to the federal offense for which the defendant is being prosecuted. The court should take it into account in two ways. First, the court has to run the new federal sentence concurrent to the existing sentence. Second, the court has to adjust the new federal sentence for the imprisonment already served on the other sentence. For example, if your client is already serving a 4-year drug sentence, or a 6-year robbery sentence, and he’s already served a year of that sentence, he has to have a year subtracted from the new sentence.

If, that is, the offense on which the other sentence is based is relevant conduct to the offense charged in the new federal case. That leads to the possibility you might want to argue the opposite of what you usually want to argue. Normally, you want to argue for a very narrow sweep of the relevant conduct guideline, to sweep as little offense conduct as possible into your offense level calculation. But you want to argue for a broader sweep of the relevant conduct guideline if you’re trying to use § 5G1.3(b). The trade-off is that (1) adding just this one offense might increase the offense level and (2) your reasoning could sweep other conduct into the calculation as well. That could potentially increase your client’s guideline range by more than the reduction you get for the time already served. Still, there will be at least some cases where there won’t be this trade-off and/or risk – or the risk will be sufficiently minimal – that you’ll want to make an expansive relevant conduct argument.

This year’s amendment makes it even more likely you’ll want to consider the possibilities, moreover. Section 5G1.3(b) did already exist before this year’s amendment, but in a much less favorable form. Prior to this year’s amendment, there was always a trade-off between getting a reduction for the time served on the already existing sentence and increasing the offense level. That’s because § 5G1.3(b) used to require the offense for which the defendant was already serving a sentence qualify as relevant conduct under the definition in § 1B1.3 and actually increase the offense level in some way. A client who was already serving a sentence for a smaller amount of drugs often wouldn’t benefit from § 5G1.3(b) because adding the smaller amount of drugs wouldn’t be enough to increase the base offense level under § 2D1.1. Even an equal-size drug quantity might not have an effect if the quantity for the new offense being prosecuted was near the lower end of the quantity range for the base offense level. (For example, two 5-kilo cocaine drug transactions added together have the same base offense level as just one of the 5-kilo transactions alone.)

In this year’s amendment, the Sentencing Commission decided to eliminate the additional requirement that there be an actual effect on offense level. It recognized that this additional requirement added complexity to the guidelines and could lead to unwarranted disparity. (See the “Explanation of Amendment” at page 80 of the summary of amendments attached here.) The Commission explained:

For example, a federal drug trafficking defendant who is serving an undischarged state term of imprisonment for a small amount of a controlled substance that is relevant conduct to the federal offense may not receive the benefit of subsection (b) because the amount of the controlled substance may not be sufficient to increase the offense level under Chapter Two. In contrast, a federal drug trafficking defendant who is serving an undischarged state term of imprisonment for a large amount of a controlled substance that is relevant conduct to the federal offense may be more likely to receive the benefit of subsection (b) because the amount of the controlled substance may be more likely to increase the offense level under Chapter Two. . . . The Commission determined that this amendment will simplify the operation of § 5G1.3 and will also address concerns that the requirement that the relevant conduct increase the offense level under Chapters Two or Three is somewhat arbitrary.

This change makes it much more likely you’ll want to consider making a broad relevant conduct argument when a client already in prison for a state drug offense is brought over on a federal drug charge. You can get the benefit of a reduction in the new sentence for the time already served on the existing sentence without necessarily having to accept a higher guideline range. You certainly want to carefully consider the effect of the offense underlying the existing sentence – and consider what other conduct your reasoning might bring under the relevant conduct umbrella – but there will be far more cases where there is no risk of increasing the offense level and/or a very minimal risk.

Finally, there’s two alternative provisions to keep in mind. First, another provision added by this year’s amendment – § 5G1.3(c) – directs the court to treat “a state term of imprisonment [that] is anticipated to result from another offense” in the same way it must treat a term of imprisonment that is already being served. Specifically, it should order the federal sentence to be served concurrently with the anticipated sentence, as permitted bySetser v. United States, 132 S. Ct. 1463 (2012).

Second, while § 5G1.3 applies by its terms only to “an Undischarged Term of Imprisonment,” there is a parallel departure provision in § 5K2.23 that implements the same concept for discharged terms of imprisonment. While it’s phrased in more discretionary terms, it provides that “[a] downward departure may be appropriate 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.”

 

So keep all of these provisions in mind when you have a client who is already serving – or has recently completed – another sentence. It could significantly affect the relevant conduct arguments you want to make.