Is a term of imprisonment “anticipated” if charges are pending but the defendant has not yet pled or been found guilty?  In a per curiam decision, United States v. Olmeda, No. 15-3449 (Katzmann, Leval, and District Judge Carter by designation) (June 22, 2018), the Circuit addressed whether a defendant facing pending state charges is subject to an “anticipated” sentence – which, under Section 5G1.3(c) of the Sentencing Guidelines, would require his federal sentence to run concurrently with any state sentence later imposed.  Upon reviewing the relevant legislative history and case law, the Circuit determined that a state sentence is sufficiently anticipated for federal sentencing purposes even when the defendant's guilt has not yet been established in state court.  This decision will make sentences marginally shorter for defendants who are in the unfortunate position of being prosecuted in both state and federal court at the same time.

Defendant Antonio Olmeda was charged by New York authorities in December 2011 with several offenses related to a fight with police officers, including attempted murder, attempted assault,  and criminal possession of a weapon.  In August 2013, Olmeda was indicted in federal court on three counts of being a felon in possession of a firearm and three counts of possession of unregistered firearms.  He pleaded guilty to the federal counts in October 2014, while the state criminal proceedings were still underway.

At Olmeda’s federal sentencing hearing, the government persuaded the district court that Olmeda’s sentence was subject to a four-level enhancement under Section 2K2.1(b) of the Sentencing Guidelines because one of the firearms identified in his federal counts was used in connection of another felony – i.e., Olmeda’s fight with police officers that formed the basis for his state charges.  At the same time, Olmeda requested that the sentencing court order his federal sentence to run concurrently with any state sentence, but the court rejected the request because no state conviction had yet been obtained.  The district court made this decision before imposing the four-level enhancement, but did not change his approach even after the state case resulted in an increased sentence.

In evaluating the district court’s decision to deny the request for concurrent sentencing, the Circuit began its analysis with judges’ power to impose consecutive sentences under the Sentencing Reform Act.  Until the Supreme Court’s decision in Setser v. United States, 566 U.S. 231 (2012), the rule in the Circuit was that district courts lacked “authority to order that the federal sentence run consecutively to an expected state sentence.”  United States v. Donoso, 521 F.3d 144, 149 (2d Cir. 2008).  This was based on an interpretation of the relevant statutory provision, 18 U.S.C. § 3584(a), as limiting the availability of consecutive sentences to instances when “multiple terms of imprisonment are imposed on a defendant at the same time,” or “a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment.”  In Setser, however, the Supreme Court adopted a contrary interpretation of Section 3584(a), holding that district courts were permitted to order a federal sentence to run consecutively “where a federal judge anticipates a state sentence that has not yet been imposed.”  566 U.S. at 236-37.

In response to Setser, the United States Sentencing Commission added subsection (c) to Section 5G1.3 of the Guidelines.  This subsection specifies that if “a state term of imprisonment is anticipated to result from a sentence that is relevant conduct to” a federal offense, the federal sentence “shall be imposed to run concurrently to the anticipated term of imprisonment.”  The Commission’s commentary explained that this subsection was intended, in light of Setser, to extend the requirement of concurrent sentences to “cases in which the state sentence is anticipated but has not yet be imposed,” which would eliminate discrepancies with cases in which the state sentence has already been imposed.  It should not matter, after all, whether the state sentence was imposed before the federal sentence or afterwards.

Based on this evolution of Section 5G1.3(c), the Circuit concluded that its reference to “an ‘anticipated’ state sentence must, at minimum, encompass sentences associated with state charges for relevant conduct that are pending at the time of a defendant’s federal sentencing.”  This meant that “Section 5G1.3(c) squarely applied” to Olmeda’s federal sentencing, since the pending state charges – which formed the basis for the four-level enhancement of his federal sentence under Section 2K2.1(b) – were clearly “relevant conduct” vis-a-vis the federal charges.  And “[b]ecause Section 5G1.3(c) was a ‘pertinent Sentencing Commission policy statement,’ the district court was required to take [it] into account.’”  United States v. Cavera, 550 F.3d 180, 188-89 (2d Cir. 2008).  Having decided the district court’s failure to do so was erroneous, the Circuit swiftly dismissed of the government’s assertions that the district court had merely “lacked sufficient information” about the state proceedings or would have imposed the same sentence in any event.  The Circuit therefore remanded with instructions to vacate the sentence and resentence consistent with its opinion.

In an accompanying summary opinion, the Circuit held that Olmeda’s convictions did not violate double jeopardy because they involved distinct offenses; affirmed the substantive and procedural reasonableness of his sentence and his term of supervised release; and concluded he had not been denied his right to self-representation.

The Circuit’s published decision helps to further soften the anomalous outcome that follows from Setser, whereby a defendant could be subject to consecutive (as opposed to concurrent) federal and state sentences merely because his guilt for the state counts had not yet been established at the time of his federal sentencing.  It is difficult to see what policy interest is advanced by treating such a defendant less charitably than one who “fortuitously” was convicted in state court before his federal sentence was imposed.  The outcome was particularly unfair here, where the state proceeding resulted in a longer sentence due to the imposition of the four-level enhancement.  The non-concurrent sentence may have looked like piling on, and appeared to result from what the Circuit viewed as an understandable error given the recent changes in the law.  Although Section 5G1.3(c), like all Guidelines provisions, is advisory, it seems only fair that the Circuit remanded with an instruction that the district court fully address its import upon resentencing.