In United States v. Anderson, ___ F.3d ___, No. 18-1839 (2d Cir. Jan. 9, 2020) (Jacobs, Sack, Hall), the Circuit vacated and remanded a 120-month sentence based on two errors: (1) the district court misunderstood its authority to order that the federal sentence run concurrently with a yet-to-be-imposed state parole violation sentence; and (2) the district court misunderstood its authority to reduce the federal sentence below the mandatory minimum to account for time already served on an undischarged state sentence for relevant conduct. In doing so, the Circuit declined to enforce the appeal waiver in the defendant’s plea agreement, based in part on the government’s consent to a partial remand.
This decision arises from one of the most confusing areas of federal sentencing: the interaction of federal and state sentences for related conduct. While on parole for a Pennsylvania state drug conviction, defendant was arrested and charged with new federal (SDNY) and state (Pennsylvania) drug offenses. Defendant pleaded guilty to both the federal and state charges, giving rise to three separate sentencing proceedings:
(1) a state sentencing for the new state offense, at which defendant received a sentence of 18-36 months;
(2) a federal sentencing, the subject of this appeal;
(3) a state parole violation sentencing, which had not occurred at the time of the federal sentencing.
In the federal plea agreement, the parties stipulated that defendant was subject to a 120-month mandatory minimum, and that all of defendant’s drug sales (including those underlying both state convictions) were relevant conduct.
At the time of the federal sentencing, defendant had served 27 months of the state sentence. Accordingly, defendant requested that the district court start with a sentence of 120 months, then (i) reduce that by 27 months to account for the time already served (a practice authorized by United States v. Rivers, 329 F.3d 119 (2d Cir. 2003); (ii) order the federal sentence to run concurrently with the remainder of the already-imposed state sentence, per U.S.S.G. § 5G1.3(b)(2); and (iii) order the federal sentence to also run concurrently with the yet-to-be-imposed state parole violation sentence (a practice authorized by Setser v. United States, 566 U.S. 231 (2012). The district court (Daniels) suggested that it did not have the authority to reduce defendant’s sentence below the 120-month mandatory minimum, and believed that it could only recommend, not order, that the federal sentence run concurrently with the yet-to-be-imposed state parole revocation sentence. Thus, the district court sentenced defendant to 120 months and recommended that the federal sentence run concurrently with both the imposed and unimposed state terms.
On appeal, defendant raised both Setser and Rivers errors. The government confessed Setser error and consented to a partial remand. However, the government otherwise sought to enforce the appeal waiver and exclude the Rivers claim from any proceedings on remand. The Circuit disagreed, holding: (1) the district court committed procedural error by failing to understand its authority, under Setser, to order (rather than just recommend) an anticipatory concurrent sentence; and (2) the district court, at best, demonstrated uncertainty regarding its ability to reduce the mandatory minimum sentence under Rivers, so that option would be open on remand, too. Additionally, the Circuit held that the appeal waiver did not bar including the Rivers issue in the remand. The Circuit cited three considerations supporting that holding: the government’s consent to a partial remand; an appellate court’s authority under 28 U.S.C. § 2106 to control the scope of its mandate in sentencing cases; and the close relationship of the Setser and Rivers issues, both of which required consideration of the effect of defendant’s state sentences on his overall term of imprisonment, and neither of which required de novo resentencing.
The takeaways for practitioners are: (1) under Setser, a federal district court always has the power to order (not just recommend) that the federal sentence run concurrently with a yet-to-be-imposed state (or, for that matter, federal) sentence; (2) under Rivers, a federal district court can sentence a defendant below a statutory mandatory minimum to account for state time served for a state offense that is relevant conduct; (3) the government’s consent to partial remand may be grounds, in part, to escape an appeal waiver.