S.D. Texas Notes Spit re Whether Federal Judge Must Specifically Declare that Sentences Run Consecutively or Concurrently

Per Reese v. Bureau of Prisons, 2006 WL 870802 (S.D. Tex. Apr. 4, 2006):

In most cases, federal district courts have discretion as to whether impose concurrent, or consecutive sentences. 18 U.S.C. § 3584(a); accord United States v. Reyes-Lugo, 238 F.3d 305, 309 (5th Cir.2001). The statute creates a presumption that multiple terms of imprisonment imposed at the same time will run concurrently unless otherwise indicated by the Court, while terms imposed at different times are presumed to run consecutively unless otherwise noted. Id. The Fifth Circuit has held that a district court, pursuant to § 3584(a), may order a federal sentence to run concurrently with an anticipated state sentence. United States v. Hernandez, 234 F.3d 252, 256 (5th Cir.2000) (per curiam) (citations omitted).

Petitioner argues that where the record is silent or ambiguous as to whether the sentence is to be served concurrent or consecutive to another sentence, the judge's intent at the time of sentencing must be examined. (D.E. 2, at 6). He further argues that federal district courts do not have the authority to impose a consecutive sentence upon a not yet imposed state sentence. Id. at 7. To support his argument, petitioner relies on case law from other circuits. Id. One of the authorities cited by petitioner is Romandine v. United States, 206 F.3d 731 (7th Cir.2000), which finds that “[n]either § 3584(a) nor any other statute of which we are aware authorizes a federal judge to declare that his sentence must run consecutively to some sentence that may be imposed in the future.” Id. at 737 (italics in original). However, this same decision notes that there is a circuit split currently on this issue, and further notes that the Fifth Circuit has held that a district court may impose a sentence to be served consecutively to a state sentence that has not yet been imposed. Id. at 738 (citing Brown v. United States, 920 F.2d 1212, 1217 (5th Cir.1991) (per curiam)).

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The Fifth Circuit has declared that “[w]ell-settled federal law presumes that when multiple terms of imprisonment are imposed at different times, they will run consecutively unless the district court specifically orders they run concurrently.” Free v. Miles, 333 F.3d 550, 553 (5th Cir.2003) (per curiam) (italics in original) (holding that state prisoner's state and federal sentences ran consecutively where the district court did not specify otherwise). While a federal district court can take into consideration anticipated sentences from separate state court proceedings when exercising its discretion of whether to impose a concurrent or consecutive federal sentence, the failure of the Court to specify that the sentence run concurrently to the anticipated state sentence results in the designation of a consecutive sentence. “A district court must specify in its sentencing that sentences run concurrently; otherwise, they run consecutively.” Id.

Petitioner has failed to show that his liberty is being restrained in violation of the United States Constitution, treaties, or statutes. The BOP's determination that his sentence was to be served consecutively to his state sentence is based on well-settled federal statutory law that is further supported by Fifth Circuit case law. Additionally, the state trial court's designation that his state sentence was to be served concurrently with his federal sentence is non-binding on the BOP. Leal v. Tombone, 341 F.3d 427, 429 n. 13 (5th Cir.2003) (per curiam).