Concurrent vs. Consecutive When You Also Have a State Case.

Concurrent and consecutive sentences present fundamentally different implications for federal defendants, and it is crucial that defendants fully understand their sentencing options when facing multiple criminal cases.

• Concurrent means that the applicable sentences will run at the same time, and as a result, generally the incarceration period will be limited to the length of the longest sentence imposed.
• Consecutive means that each imposed sentence will add to the previous sentence’s incarceration period, and the resulting total period of time spent in custody will depend on the sum of all separately imposed sentences.

Concurrent vs consecutive: the difference in one line

Concurrent vs consecutive is the whole question, and the answer is arithmetic. Concurrent sentences run at the same time, so two five-year terms served concurrently is five years. Consecutive sentences stack, so the same two terms served consecutively is ten. Put the other way round - consecutive vs concurrent - the choice can double or halve the time actually served on identical convictions.

So what's the difference between concurrent and consecutive in practice? Only whether the clocks overlap. Everything else about the sentences can be identical. Judges decide whether terms run concurrently or consecutively, and on federal sentences that discretion is bounded by statute and by the guidelines rather than left open. Where a defendant faces concurrent vs consecutive sentences across a federal case and a state case, the two courts are not obliged to agree, which is the situation the rest of this page addresses.

When Can Federal and State Sentences Run Concurrently?

Under certain circumstances, a federal sentence can run concurrently to an existing state sentence or an anticipated state sentence. If a defendant is facing multiple criminal charges in separate jurisdictions, they may be eligible for concurrent sentencing depending on the circumstances at hand. The federal sentencing court determines the sentence in the federal case and specifies whether it will run concurrently to state criminal terms of incarceration.

When Do Federal Terms of Incarceration Run Consecutively?

Under 18 U.S.C. § 3584(a), multiple terms of imprisonment imposed at different times run consecutively by default, specifically:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

When Do Federal Terms of Incarceration Run Concurrently?

Federal terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that they run consecutively.

Does a Pending State Case Merge with a Federal Sentence?

A pending state case does not merge with a federal sentence. While a federal sentencing court has the discretion to run a federal sentence concurrently to a pending state case, this does not mean that the state case “merges” into the federal case. The state prosecution remains separate, and the state judiciary retains jurisdiction to resolve the pending case independently of the federal case.

Do Plea Agreements Specify If Federal and State Sentences Will Run Concurrently?

Often, defendants will negotiate plea agreements that specify whether a federal sentence will run concurrently to an existing or anticipated state sentence. It is important to remember that while the federal sentencing court can run a federal sentence concurrently to a state case, the state case will not merge with the federal case.

What Other Factors Impact Whether Someone Spends Time in Custody?

Along with the terms negotiated in a plea agreement, several other factors can have a substantial impact on how much time will be spent in custody. For example, time spent in pre-sentencing custody, “good time” credits, and the laws and rules that apply once the custody portion of the term has expired can also have the potential to influence the actual time an individual spends incarcerated.

Which court’s order controls when the other sentence is pending or already imposed?

When one sentence is imposed in state court and another sentence is imposed in federal court, the sentencing judge in the federal court will generally determine the sentence’s relationship to any state court time the defendant may have to serve. In Setser v. United States, the U.S. Supreme Court explicitly recognized the federal sentencing court’s authority to run a sentence consecutively to an anticipated state sentence, and the Supreme Court also noted that the federal court’s sentencing order “In our American system of dual sovereignty, each sovereign-whether the Federal Government or a State-is responsible for “the administration of [its own] criminal justice syste[m].”... And if he serves his federal sentence first, the State will decide whether to give him credit against his state sentences without being bound by what the district court or the Bureau said on the matter.” on the state court when that state court subsequently proceeds to sentence a defendant in connection with the same allegedly criminal conduct.

If you are facing federal prosecution, it is essential that you work with your defense attorney to ensure that your rights are protected and that the federal judge in your case will understand the nuances and circumstances involved with your case so that they can make informed sentencing decisions. Under 18 U.S.C. § 3584(a), multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively, while multiple terms of imprisonment imposed at different times run consecutively unless the court orders or the statute mandates that the terms are to run concurrently. The federal sentencing statute contains provisions that apply both to cases involving separate terms of federal imprisonment and cases involving federal imprisonment that remains undischarged, and the federal sentencing statute specifically grants sentencing courts the discretion to make concurrent sentencing orders when appropriate.

For non-federal sentencing, a sentencing judge’s authority will depend on the statutes and sentencing rules that govern the applicable jurisdiction. For example, in North Carolina, when a defendant has already received an earlier state criminal conviction and is later found guilty in the trial court for a subsequent criminal offense, the sentencing judge for the defendant’s subsequent criminal offense decides whether to impose a sentence that runs concurrently or consecutively to the sentence the defendant received in connection with the earlier conviction. This is very similar to the process involved in federal sentencing, though these considerations do not present an issue in the majority of state criminal cases, as the laws, rules, and statutes apply to defendants differently from those who face multiple state criminal cases.

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When Can a Statute, Plea Term, or Other Factor Override the Expected Overlap?

In addition to the general considerations discussed above, there are several statutory and other legal considerations that can have significant implications for both federal and state sentencing. Often, defendants’ sentencing options will be negotiated in plea agreements. During federal criminal cases, the federal prosecution and the federal defense attorney will discuss various sentencing options with the federal judge, and they may both agree to a specific sentence that the federal judge then imposes. Sometimes, defendants’ plea agreements will specify whether they face concurrent or consecutive sentencing, and they may also specify whether defendants will receive “good time” credits or other protections.

In some cases, however, the statute that creates the federal offense in question will specifically require a consecutive sentence, which removes the sentencing judge’s authority to run a concurrent sentence regardless of the defendant’s criminal history and other considerations. The sentencing judge will also consider whether all of the offenses involved arose from the same “episode” or if the conduct was separated by a duration of time. Along with this, the sentencing judge may take the defendant’s criminal history, the nature of the conduct involved (e.g., did the offense involve violence or a weapon?), the severity of any harm to the victim, and general public safety concerns into consideration before determining whether to run a concurrent or consecutive sentence.

Similar to the federal court system, the state court systems across the country have various laws and other factors that influence sentencing. California Rule of Court 4.425 identifies criteria affecting whether sentences should be imposed concurrently or consecutively.

What Will Determine Your Actual Custody and Release Date After Concurrency Is Ordered?

Even though a concurrent sentence means that a defendant can serve a certain amount of time in custody and a subsequent sentence will run at the same time, determining your actual release date involves several other considerations. This is because different aspects of the sentence apply based on the laws, rules, and guidelines governing the respective case. The rules for good-time credit and sentencing rules for parole and supervised release all can impact an individual’s actual release date, which means that even if a federal and state sentence run concurrently, this will not necessarily mean that the release date is calculated using the same methodology for both.

With all of the above said, if all other sentencing consequences are equal, then receiving a concurrent sentence is usually far better than receiving a consecutive sentence.

In the state system, this can often (but not always) happen as well. In Texas, Article 42.08 generally gives the court discretion to order sentences in a second or subsequent conviction to run consecutively or concurrently, subject to statutory exceptions.

Of course, the guidelines are recommendations for federal sentencing judges, but they have a significant impact. Therefore, the judge’s understanding and assessment of your case will be paramount when deciding whether to make a concurrent sentencing order. This emphasizes the importance of having an experienced federal defense attorney who can effectively present the unique aspects and considerations of your case, ensuring that the federal sentencing judge has all the information needed to make a decision that is in your best interests.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.