3d Cir Notes Split Re Whether 18 USC §3584(a) Permits Imposition of a Consecutive Sentence to a State Sentence Where the Latter Has Yet to Be Imposed

Per U.S. v. Williams, 2007 WL 419711 (3rd Cir. Feb. 08, 2007):

Williams has not argued why we should presume vindictiveness in the present case, but even if we were to do so the district court rebutted any presumption by explaining that although it did not want to impose a consecutive sentence it believed that Williams's release from state custody precluded a concurrent sentence. (App. at 49-52.) Even if the court's understanding of the conditions under which it could impose concurrent sentences was legally erroneous (a question which we do not decide),FN1 the reasons it offered for its choice of sentence were objectively reasonable and free of vindictive motive. Indeed, since the state has surrendered custody of Williams, the consecutive sentence has not yet even injured Williams, and may turn out to be completely harmless.

FN1. It is unclear whether the district court could have imposed a concurrent sentence. Federal statutes permit courts to specify a concurrent or consecutive sentence “[i]f multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment.” 18 U.S.C. § 3584(a). The Circuits are split on whether this statute prevents the imposition of a sentence consecutive to a state sentence where the state sentence has yet to be imposed. See United States v. Andrews, 330 F.3d 1305, 1306-07 (11th Cir.2003) (collecting cases). At any rate, Williams did not raise the permissibility of a concurrent sentence either below or in this court.