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 … 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.

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

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 (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. Setser v. United States

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 5G 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. (