When a defendant is sentenced for both state and federal crimes, things can get complicated. There are a few traps for the unwary, even when everyone (prosecutor, defendant, and judge) agrees on how the sentences will be served relative to one another.When a person faces two or more state sentences imposed at different times, the judge imposing the later sentence decides whether it runs concurrently with or consecutively to the previously imposed sentence. G.S. 15A-1354(a). A few statutes require new sentences to run consecutively to time already being served (for example habitual felon, habitual breaking and entering, and drug trafficking), but aside from those, the decision rests in the discretion of the judge conducting the later sentencing. If a judgment does not specify consecutive sentences, DACJJ will run them concurrently. Id.
Federal law is similar, but not identical. Under 18 U.S.C. § 3584, when a defendant is facing multiple terms of imprisonment—either for multiple crimes being sentenced at the same time or for a defendant already subject to an undischarged term of imprisonment—the terms may run consecutively or concurrently. Multiple terms imposed at the same time run concurrently unless the judge or a statute requires otherwise, while terms imposed at different times run consecutively unless the court orders them to run concurrently.
That’s all well and good when a person is being sentenced for multiple convictions in the same jurisdiction. But when you have a mix of state and federal sentences, additional considerations come into play.
Here’s a typical fact pattern. A defendant is arrested on a state charge and he cannot meet the conditions of pretrial release. He is then charged federally—perhaps related to the firearm used in the commission of the state offense. He is brought to federal court on a writ of habeas corpus ad prosequendum, and convicted and sentenced in federal court. When he returns to handle his state charges, you might figure that the state judge could, under G.S. 15A-1354, order the state sentence to run concurrently with the already imposed federal sentence. G.S. 15-6.3 even suggests that the judge has the express authority under North Carolina law to order the state sentence to be served in federal prison, concurrently with the previously imposed federal sentence.
Unfortunately it’s not that simple. The hang-up is the concept of primary custodial jurisdiction (sometimes referred to as “primary custody” or “primary jurisdiction”). The general rule is that the sovereign that first arrests a defendant has primary custodial jurisdiction over him or her, unless and until that sovereign releases the defendant by way of bail, dismissal, or completion of its sentence. Producing a defendant for prosecution on a writ of habeas corpus ad prosequendum does not, standing alone, relinquish the first sovereign’s custody. See United States v. Evans, 159 F.3d 908 (4th Cir. 1998) (“Rather, the state retains primary jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish the prisoner on satisfaction of the state obligation.”).
That being the case, federal authorities will, once their sentence is imposed, merely return the defendant to the state. They won’t start the clock on the federal sentence, because as far as the Federal Bureau of Prisons (BOP) is concerned the person is not yet in federal custody. Moreover, absent specific instruction from the federal judge, BOP’s default analysis under 18 U.S.C. § 3584(a) will be that sentences imposed at different times run consecutively.
There are several ways to avoid this outcome, assuming that is what the parties would like to do (which obviously will not always be the case). First, the state conditions of pretrial release could be modified to something the defendant can satisfy, or the state charges could be dismissed and then recharged. Either approach would release the defendant from primary state custody and into primary federal custody. That would allow the federal sentence to begin when it is imposed, and the state judge would have a subsequent opportunity to order a concurrent state sentence. That approach also results in the time being served in federal prison instead of state prison.
Alternatively, if the defendant remained in primary state custody, the federal judge could order that the federal sentence is to begin immediately upon imposition and run concurrently with the yet-to-be-imposed state sentence, perhaps also recommending that BOP designate state prison as the place of confinement for the federal sentence under 18 U.S.C. § 3621. (If that designation isn’t made initially, the defendant has some prospect of petitioning BOP to do it later, nunc pro tunc to the date on which the federal sentence was imposed. See, e.g., Mangum v. Hallembaek, 910 F.3d 770 (4th Cir. 2018) (a case involving a defendants request to have BOP designate an Oklahoma state prison as the place of confinement for his federal sentence).)
The authority for the federal judge to impose a federal sentence concurrent with or consecutive to an anticipated sentence is clearer now than it once was. In Setser v. United States, 566 U.S. 231 (2012), the Supreme Court held that a federal district judge can—and indeed should—make that determination. Cf. United States v. Lynn, 912 F.3d 212 (4th Cir. 2019) (allowing an exception to the requirement when the district court lacked sufficient information about the anticipated state sentence). United States Sentencing Guideline § 5G1.3, amended after Setser, requires the court to impose a concurrent federal term if the anticipated state sentence is relevant conduct to the federal sentence—although the federal guidelines are, of course, ultimately advisory.
I haven’t covered nearly all of the wrinkles, but at a minimum you should note the importance of primary custody in determining how and where state and federal sentences will be served. And even after Setser, exercise caution when negotiating plea agreements that rely on another sovereign’s sentence being administered in a particular way.