S.D.N.Y. Notes Split Re Whether a Federal Court Has the Authority to Order a Federal Sentence be Served Concurrently with a Future State Sentence

Per U.S. v. Crespo, 2007 WL 844739 (S.D.N.Y. Mar. 19, 2007):

This Court recommends that the BOP designate the New York State correctional facility nunc pro tunc as the “place of imprisonment” for Crespo's federal sentence pursuant to 18 U.S.C. § 3621(b). This Court uses the word “recommends” advisedly, as there is a circuit split on whether a federal court has the authority to order concurrency when the state sentence has not yet been imposed; the Second Circuit has not yet decided this issue. See Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 n. 1 (2d Cir.2005).

Moreover, 18 U.S.C. § 3621(b) entrusts the designation of Crespo's place of imprisonment to the discretion of the BOP, not this Court. Pursuant to this statutory authority, the BOP is able to designate the facility in which Crespo served his state sentence as the place of his federal sentence, and in so doing, Crespo will receive credit for the time that he has already spent in state custody. See McCarthy, 146 F.3d at 122-23. This Court believes that the interests of justice strongly favor that exercise of the BOP's discretion under section 3621(b) in this case.