Credit for State Custody Time Before a Federal Sentence.

Here, too, time spent in state custody does not automatically qualify for credit. The federal sentence generally commences when the defendant is received in custody awaiting transportation to, or voluntarily arrives at, the official detention facility where the sentence is to be served; the Bureau of Prisons then determines any qualifying prior-custody credit. Under 18 U.S.C. § 3585(b), the Bureau of Prisons (BOP), not the sentencing judge, calculates credit. The BOP’s authority to allow credits under § 3585(b) is constrained by an additional important limitation: the provision, “... Nor shall any credit be allowed for any period of detention already credited against another sentence.” Importantly, the Supreme Court has held that if a federal sentencing judge orders concurrency, this “Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment that the federal sentence run concurrently with the state sentence for the new drug charges.” that should be calculated and applied in the federal sentence.

In addition to the fact that the BOP (not the sentencing judge) calculates § 3585(b) credit, a federal sentencing judge’s order is also different from the BOP’s calculation because a sentencing judge’s power to “impose” a sentence is different from its (or the BOP’s) power to grant credit.

Does the Prior State Sentence Still Matter When the Federal Sentence Takes Effect?

Yes, because the BOP calculates and applies credit under 18 U.S.C. § 3585(b) at the point of delivery of the federal sentence.

Here is the logic that leads to the possibility of concurrency between state and federal sentences. Suppose a defendant receives a federal sentence for offenses related to their crimes at state. The court makes it clear that the state’s and the federal government’s prosecution of the individual are unrelated and should be considered concurrently. The defendant has been serving a state sentence for the time that the federal government has been pursuing their case. By the time the federal sentence is passed, the defendant has already been serving a state sentence for two years. How much of the federal sentence is left? A concurrency order does not automatically make the defendant’s two years spent in state custody count toward the federal sentence; credit is available only for qualifying detention that has not been credited against another sentence. The defendant should only have the remaining portion of the sentence to serve.

However, the federal court does not grant credit for the state-served sentence; the Bureau of Prisons calculates and applies such credit at the point of delivery.

When Can a Federal Judge Make State and Federal Sentences Overlap?

Under 18 U.S.C. § 3584(a), multiple terms imposed at different times run consecutively unless the court orders concurrency, while multiple terms imposed at the same time run concurrently unless the court orders or the statute mandates that they run consecutively. However, 18 U.S.C. § 3584(a) also allows for concurrent sentences, specifying that “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”

In other words, concurrent sentences are those that run during a single period of overlapping time. On the other hand, consecutive sentences require that the entirety of an imprisonment term be completed before another imprisonment term begins. With regard to the latter, the statutory wording is quite clear: “Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”

Can a Federal Judge Order Concurrency with an Anticipated State Sentence?

Yes. As we discuss in Setser, “And a large majority of the federal appellate courts addressing the question have recognized a similar authority in the context here, where a federal judge anticipates a state sentence that has not yet been imposed.” The decision in Setser notes that “Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.... We find nothing in the Sentencing Reform Act, or in any other provision of law, to show that Congress foreclosed the exercise of district courts’ sentencing discretion in these circumstances.” By doing so, the Supreme Court has clarified that a federal judge may order concurrency even with state sentences that have not been imposed yet.

Does a Federal Judge’s Order of Concurrency Carry Over Into a Federal Sentence?

Here too, the answer is no. When a federal sentencing judge orders concurrency, the order is for the purposes of sentencing. However, the actual application of concurrency is calculated and granted by the Bureau of Prisons at the point of delivery of the federal sentence.

We work with defendants facing federal sentences after state convictions, as well as defendants facing state sentences after federal convictions. Here too, it is possible to seek concurrency, but the process of seeking credit is the same as when seeking credit for time served prior to the federal sentencing event. The most significant difference between seeking credit for a state sentence being served concurrently is the legal source of the credit. With respect to concurrency, the sentencing order determines how the sentences are to run, while 18 U.S.C. § 3585(b) governs any separate award of qualifying prior-custody credit.

Who Decides Which Sovereign Holds You First?

The concept of “primary jurisdiction” is the mechanism that determines which sovereign gets first priority in taking and holding a defendant for punishment. Generally, the rule is “first in time, first in right.” This means that the sovereign that arrested and detained a defendant first has the right to see the criminal punishment imposed by that sovereign fully enforced before the second sovereign may begin imposing its own punishment. This general rule, however, is not infallible. As a general rule, the state may retain primary jurisdiction when it arrested and detained a defendant first. Similarly, if a defendant is already serving state imprisonment, this state sentence may establish state primary jurisdiction prior to the federal proceedings. By serving a state sentence after a federal offense has been charged, but prior to the federal sentencing, the state’s detention time may ultimately earn a credit that offsets a portion of the federal sentence. However, the Bureau of Prisons does not always grant the state’s priority when calculating the federal sentence. The BOP may determine that it has federal primary jurisdiction in certain situations, and the Bureau of Prisons may refuse to grant credit for time served before the federal sentencing event in these situations.

Determining Which Sovereign’s Detention Precedes the Other’s

Determining whether there is “Federal Primary Jurisdiction” or “State Primary Jurisdiction” is important because each of those determinations will affect the order in which the federal and state prison terms will be served. If there is “Federal Primary Jurisdiction,” the federal imprisonment will be served first. If there is “State Primary Jurisdiction,” the state imprisonment will be served first. In both cases, the sovereign in possession of the defendant serves first, but this means that a defendant’s federal sentence may potentially be served concurrently with a state sentence that hasn’t been imposed yet, or it may result in a delayed state sentence.

Which Federal Sentencing Tools Can Reduce Time Beyond Custody Credit?

When facing sentencing, the primary goal is to seek any available reductions. In addition to pursuing credit for state-served time, there are several other federal sentencing tools that may help reduce the time sentenced.

Judicial Discretion

Federal judges must consider the advisory Sentencing Guidelines when they are imposing sentences in criminal cases. However, while these Guidelines provide a framework for sentencing, judges can often exercise their discretion. When a judge imposes a sentence outside the Guidelines range based on a non-sentencing-related factor, they issue a variance. When a judge imposes a sentence outside the Guidelines range based on a sentencing factor, they issue a “departure.” In criminal cases, it is possible to argue for a downward departure, or a downward variance, based on a range of factors.

Mandatory Minimums, Safety-Valve Eligibility, and Substantial Assistance

Unfortunately, while judges can exercise discretion in some cases, certain federal offenses carry “mandatory minimum” prison penalties. This means that the sentencing judge may not be able to rely on a variance or a “departure” to reduce the time to be served. However, in these cases, there are three other primary tools that may help reduce the time:

• The “safety valve.” Under 18 U.S.C. § 3553(f), in certain cases involving federal drug crimes, defendants may be eligible for “safety valve” relief, which removes the mandatory minimum.
• The “5K1.1 departure.” Under U.S. Sentencing Guideline § 5K1.1, a prosecutor can ask the sentencing judge for a “departure” from the calculated sentencing range in a case involving “substantial assistance.”
• The Rule 35(b) “sentence reduction.” Under Federal Rule of Criminal Procedure 35(b), the government may petition the sentencing judge to reduce a sentence (or to release the defendant from the federal prison system before the date of the federal sentence’s termination) based on the defendant’s “substantial assistance.” This is similar in concept to a 5K1.1 departure but applies to the time after the defendant has been sentenced. In some cases, Rule 35(b) may allow for a complete release.

The Practical Implications of State Primary Jurisdiction and State Credit calculations

Although it can feel reassuring to think that prior state detention time may count toward a federal sentence, this is not an entitlement. The Bureau of Prisons does not simply add days of credit. It must calculate the sentence based on the state-custody time served, the sentencing judge’s decision, and other factors.

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