New York Federal Criminal Practice Blog
April 22, 2008

Second Circuit Holds that District Court May Not Order a Sentence Consecutive to a Sentence Not Yet Imposed

As this blog has pointed out several times, see here and here, defendants simultaneously facing federal and state sentences can also face significant procedural hurdles in order to achieve concurrency (putting aside the issue of persuading the sentencing judges involved that concurrency is appropriate).  Add to those hurdles United States v. Donoso, 07-0635-cr, 2008 WL 878562 (2d Cir. April 3, 2008).  In the context of addressing whether a court correctly invoked Rule 35(a) to vacate a previously-imposed sentence, the Second Circuit held that 18 U.S.C. ยง3584, the district court's statutory authority to impose concurrent and consecutive terms of imprisonment, "does not authorize a district court to direct that a defendant's federal sentence run consecutively to a not-yet-imposed state sentence."

The Court's ruling, of course, also means that a district court may not direct that a federal sentence run concurrently to a not-yet-imposed state sentence, even where, as in Donoso, there is no doubt that the not-yet-imposed sentence will in fact be imposed.  (Donoso had pled guilty on the state charge and was awaiting sentence.). The Court thus shut off an important avenue for ameliorating the consequences of multi-jurisdictional prosecutions.  Click here to read how a district court creatively addressed the problem.

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