United States v. Olmeda, 894 F.3d 89

In Dec 2011 New York arrested Antonio Olmeda on violent charges after an altercation with police; searches revealed >20 firearms.
While state proceedings were pending, a federal grand jury indicted Olmeda in Aug 2013 on six firearms counts; he pleaded guilty to all in Oct 2014.
At federal sentencing the government sought a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6) based on the state altercation as relevant conduct; the district court initially denied the enhancement and Olmeda’s request that the federal sentence run concurrent with any future state sentence.
After a Fatico hearing the district court found the relevant conduct proven and applied the 4-level enhancement, raising the Guidelines range from 78–97 months to 121–151 months; the court did not revisit the concurrency request and sentenced Olmeda to 151 months.
Olmeda appealed, arguing U.S.S.G. § 5G1.3(c) required the federal sentence to run concurrent to any anticipated state sentence because state charges for relevant conduct were pending at federal sentencing.
The Second Circuit held § 5G1.3(c) applies where state charges are pending (no conviction yet) and remanded for resentencing because the district court failed to consider the policy statement and the enhancement substantially increased the Guidelines range.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether U.S.S.G. § 5G1.3(c) applies when state charges are pending but no conviction has occurred	Olmeda: § 5G1.3(c) covers an "anticipated" state sentence that arises from pending state charges for relevant conduct, so federal sentence must run concurrently	Government: § 5G1.3(c) should not apply because no state conviction or imposed sentence existed at federal sentencing	Held: § 5G1.3(c) applies to anticipated state sentences when relevant-conduct state charges are pending at federal sentencing (following Setser rationale)
Whether the district court’s failure to consider § 5G1.3(c) was harmless error	Olmeda: court’s omission was prejudicial because the relevant-conduct enhancement materially raised his Guidelines range	Government: any error was harmless because district court had discretion and lacked sufficient state information	Held: Not harmless—because the enhancement increased the Guidelines range by >50% and the district court never reconsidered concurrency after applying it, remand for resentencing required

Setser v. United States, 566 U.S. 231 (2012) (district courts retain discretion to impose sentences consecutive or concurrent to anticipated state sentences)
United States v. Donoso, 521 F.3d 144 (2d Cir. 2008) (earlier view limiting district court authority under § 3584, discussed and distinguished post-Setser)
Gall v. United States, 552 U.S. 38 (2007) (district courts must remain cognizant of the Guidelines throughout sentencing)
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (sentencing courts must consider pertinent Sentencing Commission policy statements under 18 U.S.C. § 3553(a)(5))
United States v. Feldman, 647 F.3d 450 (2d Cir. 2011) (courts should not lightly assume that procedural errors concerning Guidelines would not affect the sentence)