IFCD
2014
JESSIE A. COOK
TERRE HAUTE, IN
MINIMIZING THE FEDERAL
SENTENCE
FOR CLIENTS PROSECUTED
IN STATE AND FEDERAL
COURT
3 QUESTIONS:
1. ARE THESE 2 PROSECUTIONS FOR THE SAME
OFFENSE?
2. IF NOT, ARE THEY FACTUALLY RELATED
CASES?
3. IF NOT, ARE THEY WHOLLY UNRELATED
CASES?
DUAL SOVEREIGNTY DOCTRINE
• When defendant with one act
violates the laws of two
sovereigns, he commits two
distinct offenses and double
jeopardy clause of federal
constitution does not prohibit
successive prosecutions.
• Heath v. Alabama, 474 U.S. 82 (1985)
I.C. 35-41-4-5
… provides that a former conviction in any
other jurisdiction bars subsequent prosecution
by Indiana for the same conduct.
• To ascertain whether the offenses are the
same or merely similar, compare conduct, not
the elements.
• Smith v. State, 993 N.E.2d 1185 (Ind. Ct. App.
2013)
IF NOT THE SAME,
IS IT A RELATED CASE?
• IS IT RELEVANT CONDUCT ?
• “All conduct that occurred during the commission
of the offense of conviction, or during the
preparation for or attempt to avoid detection or
responsibility for that offense, provided that the
defendant aided, abetted, counseled,
commanded, induced, procured or willfully
caused the conduct.”
• U.S.S.G. 1B1.3(a)(1)(A)
IS IT RELEVANT CONDUCT?
• If a joint activity, relevant conduct must be in
furtherance of the activity and reasonably
foreseeable. U.S.S.G. 1B1.3(a)(1)(B)
• If a groupable offense [offense severity is
determined by the amount of fraud or the weight
of drugs], relevant conduct includes conduct that
was part of a common scheme or plan with the
offense of conviction.
U.S.S.G. 1B1.3(a)(2).
PRACTICE TIP
• Conspiracies are not defined, for relevant
conduct purposes, by the sometimes arbitrary
dates selected by the government and
enshrined in the indictment.
• Investigate and challenge the dates.
• But…including the prior as relevant conduct
may increase offense severity.
PRIOR CONVICTION FOR
RELEVANT CONDUCT….
• Not counted as a prior in the criminal
history score.
U.S.S.G. 4A1.2(a)(1)
• Not counted as a “prior felony
conviction” for career offender or
ACCA.
U.S.S.G. 4B1.2(c).
IF WHOLLY UNRELATED….
• Avoid conviction OR PLEA in state
court prior to federal sentencing.
• Avoid state court appearances.
PRACTICE TIP
• Notify state court prosecutor, county sheriff
and judge that client is in federal custody and
may not be transported to state court unless
via writ.
• Work with client’s state court attorney.
PRACTICE TIP
While state case is pending….
Take advantage of the more liberal
discovery rules in Indiana to
obtain info not available through
federal discovery.
SENTENCING
Calculation of the term of
imprisonment and possible
credit for prior custody is
governed by 18 U.S.C. 3585.
U.S.S.G. 5G1.3
governs the imposition of a sentence on a
defendant subject to an undischarged term of
imprisonment.
• If state sentence was for relevant conduct,
federal sentence should be adjusted for term
of imprisonment already served and imposed
concurrently to the remainder of the state
sentence.
U.S.S.G. 5G1.3(c)
If state sentence was for unrelated conduct:
Federal sentence may be concurrent, partially
concurrent, or consecutive “to achieve a
reasonable punishment for the instant offense”.
ANTICIPATORY CONSECUTIVE OR
CONCURRENT SENTENCES
• In Setser v. United States, 132 U.S.
1463 (2012) the Court held that
federal district judges have authority
to direct that a criminal sentence be
served consecutively or concurrently
to a state sentence, even if that state
sentence has not yet been imposed.
U.S.SG. 5G1.3
• Commentary cites Setser:
“Federal courts also generally have
discretion to order that the sentences
they impose will run concurrently with
or consecutively to other state
sentences that are anticipated but not
yet imposed”.
New U.S.S.G. 5G1.3(c)
• unless otherwise specified in
5G1.3(a), sentences shall be
concurrent when a state term of
imprisonment is anticipated to
result from another offense that
is relevant conduct to the instant
offense under 1B1.3(a)(1)-(3).
PURPOSE OF THE AMENDMENT
• Reduce sentencing disparities between
defendants whose state sentences have
already been imposed and those whose
state sentences have not yet been
imposed.
• Promote certainty and consistency.
-Commentary to amended U.S.S.G. 5G1.3.
STATE SENTENCE ALREADY SERVED
"[a] downward departure may be
appropriate if the defendant (1) has
completed serving a term of
imprisonment; and (2) subsection (b) of
5G1.3 . . . would have provided an
adjustment had that completed term of
imprisonment been undischarged at the
time of sentencing for the instant offense."
U.S.S.G. 5K2.23
THE CATCH…
Neither a non-guidelines sentence
nor a U.S.S.G. 5K2.23 departure
may go below a statutory
minimum absent specific statutory
authorization.
THE BOTTOM LINE….
“Exercise
of [the court’s]
discretion…is predicated on the
court’s consideration of the factors
listed in 18 U.S.C. 3553(a),
including any applicable guidelines
or policy statements issued by the
Sentencing Commission.”
PRACTICE TIP
• Pending state case will be
considered a detainer by the BOP.
• When resolved, PSIR should be
amended to reflect the dismissal.
MORE INFO
• There is a detailed memo on Interaction of
State and Federal Sentences, available at BOP
Public Web Site.
(www.bop.gov/news/publications.jsp)