Consecutive Privilege

United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)

Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed.

Facts: Richard Donoso violated his federal supervised release by committing a state offense. He pled guilty in state court, then came into federal court and admitted the supervised release violation. Judge Spatt sentenced him to 24 months’ imprisonment and ordered it to run consecutively to the state sentence. Donoso was not sentenced in the state case, however, until the next day. A few days later, Judge Spatt recalled the case, questioning whether he had the power to impose a consecutive sentence before the state sentence had been imposed. Invoking Fed.R.Cr.Proc. 35(a), and over objection, he vacated the sentence, then reimposed it, ordering it to run consecutive to the state sentence that Donoso was now actually serving.

The Appeal: On Donoso’s appeal, the circuit held that Judge Spatt was correct in his belated realization that he could not impose a consecutive federal sentence before the state sentence had been imposed. Title 18 U.S.C. § 3584(a) provides that, if a term of imprisonment is imposed on a defendant who is “already subject to an undischarged term of imprisonment,” those terms “may run concurrently or consecutively.” Under the circuit’s reading of this section, however, where, as here, sentence has not yet been imposed in the state case, the defendant is not “already subject to” that term of imprisonment, thus the statute does not apply.

Comment: This case, almost certainly incorrectly decided, gives undeservedly short shrift to very important issues regarding statutory interpretation and sentencing policy.

The first, and most important, problem here is that underlying statutory premise of this decision is wrong. The circuit concluded that § 3584(a) did not apply to Donoso when he was awaiting sentencing on his state case because he was not yet serving that sentence. But that is not what the statute says. The statute applies if the defendant is “already subject to” another a sentence; it does not say that he has to be “already serving” it. And a person can clearly be “subject to” a sentence even if he is not yet serving it. Donoso, for example, was in custody in New York State awaiting imposition of sentence on a charge that he had already been convicted of. It seems perfectly clear that he was in every respect “already subject to” that sentence, and thus that 3584(a) should apply to his situation. After all, if Congress meant had “already serving,” as opposed to “already subject to,” it could easily have said so. At a minimum here there is an ambiguity that should be tested under the rule of lenity.

A second aspect of this decision that also seems wrong – or at least warrants more discussion than this brief per curiam gave it – is the premise that 3584(a) is the only authority for imposing concurrent or consecutive sentences and that, if it does not apply, all the district court can do is impose sentence and not address the question. There is a good argument that § 3553(a) itself confers concurrent/consecutive authority. That section begins with very broad language about the imposition of sentence that can easily be interpreted to include the decision about whether the sentence should be concurrent or consecutive. Also, § 3553(a)(5)(A) requires the sentencing court to consider any pertinent Guidelines policy statements, and as it happens, there is a policy statement that deals with this issue. Guidelines section 5G1.3(c), which authorizes concurrent, consecutive or partially concurrent sentences, is expressly designated a policy statement, and is broader than § 3584(a). While the statute applies only where the defendant is “already subject to” an undischarged term of imprisonment – whatever that means – the policy statement applies in any case “involving” an undischarged term of imprisonment. Donoso, as noted above, was not serving his undischarged state sentence when he was first sentenced federally. But his case certainly “involved” an undischarged term of imprisonment.

Why does the blog care about this? Because, although the court does not say so, this decision seems to compel the conclusion that a district court cannot order the federal sentence to run concurrently to a state sentence that has not yet been imposed, which is something that defendants frequently ask for. Indeed, some defendants try very hard to get sentenced in their federal case before sentencing in their state case so that they will not receive an increased criminal history score, but still want the federal judge to order a concurrent sentence. This decision spells trouble in that kind of case.

Final Comment: This case is also maddening for a completely different reason. Donoso got the statutory maximum for his supervised release violation, consecutive to his state sentence. Both of those decisions were discretionary and subject to reasonableness review. Why is there no mention of the reasonableness of the sentence on this appeal? The blog simply cannot imagine that he that he did not raise the issue.