Memorandum Opinion and Order
Robert Hill pleaded guilty to conspiracy to possess and distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) & 1846 and 18 U.S.C. § 2. Docs. 336-337. He asked the court to impose a custodial sentence below the ten-year statutory minimum to account for the 27-month sentence he had completed for a closely related state drug offense. The trouble with Hill’s request was 18 U.S.C. § 3584, which under binding circuit precedent allows a court to make a federal sentence concurrent with a state sentence—or to adjust a federal sentence to account for time already served on a state sentence—only if the state sentence is wholly or partially undischarged, meaning only if the state sentence has not yet been fully served. Because Hill had been released from state prison at the time he was sentenced in this case, § 3584 prohibited this comt from either running the federal sentence concurrently with the state sentence or adjusting the federal sentence below the ten-year minimum term to account for the 27 months he had served in state custody. Thus, § 3584 required this court to impose (at least) a ten-year federal sentence on top of the 27-month state sentence; if Hill’s state sentence had not been completed at the time of the federal sentencing, § 3584 would have allowed the court to take account of the time he had served in state custody and adjust the federal sentence to below the ten-year minimum, resulting in his serving a total of ten years in prison rather than ten years plus 27 months.
Hill argued that § 3584’s distinction between undischarged and discharged prior
Background
On September 17,' 2007, Hill was arrested for possession of a controlled-substance. Doc. 346 at 12. He pleaded guilty in Illinois state court on May 13, -2009. Ibid. He served approximately 27 months in state custody and was released on July 5, 2011. Ibid.
On October 3, 2011, three months after his release from state custody, Hill was arrested on federal drug' charges. Id. at 4. The federal charges arose from the same conduct underlying the state conviction; in fact, Hill did not sustain any criminal history points for the state conviction because it is related to the federal conviction. Doc. 337 at 2-3; Doc. 346 at. 12. Hill pleaded guilty. Docs. 336-337. The statutory minimum sentence is ten years. Doc. 337 at 4.
Section 3584 governs the imposition of multiple sentences of imprisonment: Subsection (a) outlines the procedure for imposing sentences of concurrent or consecutive terms:
If 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, the terms may run concurrently or consecutively .... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
18 U.S.C. § 3584(a) (emphasis added). Section 3584 does not include any provision allowing the court to run a newly imposed federal sentence concurrently with a discharged sentence, or for the sentencing judge to adjust a newly imposed federal sentence to account for a fully discharged prior sentence.
Following sentencing hearings on July 6, 2015 and January 12, 2016, Docs. 387, 399, the court sentenced Hill to 93 months’ imprisonment, reasoning that a 93-month sentence, when coupled with his discharged .-27-month state sentence, effectively sentenced him to the federal statutory minimum term of ten years, which, the court deemed the appropriate sentence under 18 U.S.C. § 3553(a). Doc. 400. In so ruling, the court held that § 3584’s distinction between discharged and undischarged prior sentences violates due process as applied to this case.
Discussion
As interpreted by the Seventh Circuit, § 3584 prohibited the court from imposing a sentence below the ten-year minimum to account for Hill’s 27 months in state custody because the state sentence was discharged by the time Hill was sentenced in this case. The, question here is whether this aspect of § 3584 comports with due process.
The Fifth Amendment provides that “[n]o person shall be ... deprived of
As noted, § 3584(a) applies to defendants facing “multiple terms of imprisonment” or “already subject to an undischarged term of imprisonment.” 18 U.S.C. § 3584(a). This is so even if the defendant is subject to a mandatory minimum term under federal law. The point is illustrated by United States v. Ross,
The adjustment in Ross for the portion of the state sentence that the defendant had already served was necessary to avoid a situation in which the happenstance of how much of the prior sentence has been served when the federal sentence is imposed would determine the length of the defendant’s imprisonment. Suppose the federal statutory minimum were 10 years ... and one defendant had served 1 year of a related state sentence and another defendant 9 years. Without an adjustment the total length of imprisonment of the first defendant would be 19 years and of the second defendant 11 years; to make each defendant serve total prison time of 10 years (supposing the sentencing judge thought them equally deserving of that amount of time), the first defendant would require a 9-year reduction and the second defendant a 1-year reduction.
United States v. Cruz,
The Seventh Circuit has explained that the statutory authority to make such adjustments arises from § 3584, which “gives a sentencing court the discretion to impose a concurrent sentence, taking into consideration the factors set forth in [18 U.S.C.] § 3553(a).” United States v. Campbell,
For federal defendants like Hill with prior discharged sentences, matters are different. “[B]ecause there is no concurrent sentence and cannot be one when the defendant is no longer ‘subject to an undischarged term of imprisonment,’ ” § 3584 does not allow the federal sentence to run concurrently with the discharged state sentence. Cruz,
A downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a Defendant Subject to Undischarged Term of Imprisonment or Anticipated Term of Imprisonment) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense.
U.S.S.G. § 5K2.23. Section 5G1.3(b), the guideline applied in Campbell and a close relative of the one applied in Boss, provides in turn that where
a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction ...,the sentence for the instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.
U.S.S.G. § 5G1.3(b). Thus, even if a concurrent sentence is formally unavailable because the prior sentence for a related crime has been discharged, the court may adjust the federal sentence to account for the time served on the prior sentence. See United States v. Pietkiewicz,
But a § 5K2.23 adjustment to account for a discharged sentence cannot—at least as a statutory matter under § 3584—bring a federal sentence below the mandatory minimum. The point is illustrated by United States v. Cruz, supra. Cruz was convicted of a drug conspiracy charge that carried a ten-year minimum term.
If while Cruz still had 18 months to serve on his state sentence he had been sentenced on the federal charge, the district judge could have made the federal sentence run concurrently with the state sentence rather than begin when he completed that sentence. And then instead of facing imprisonment for a total of 10 years and 18 months he would be facing imprisonment for only 10 years. But since he finished serving his state sentence when he received the federal sentence, there was no sentence to make his federal sentence concurrent with. What he is seeking is not a concurrent sentence but a sentencing reduction on account of a sentence previously served.
Ibid. As for Cruz’s request for a sentencing adjustment under § 5K2.23, the Seventh Circuit distinguished Ross—which, recall, involved a prior, undischarged state sentence—on the ground that “a discharged sentence may not be used to reduce a statutory minimum sentence” and that “[t]he result in Ross was tied to the undischarged character of the state sentence ....” Id. at 746 (emphasis added). As the Seventh Circuit later explained, Cruz “holds that, although a sentencing court may reduce a defendant’s sentence based on time a defendant has served on a related, discharged prison sentence, see U.S.S.G. § 5K2.23, the court may not in so doing reduce the later sentence below a statutory minimum.” Parrilla,
Hill has made that argument with respect to § 3584, and his argument is persuasive, for the distinction the statute draws between discharged and undischarged prior sentences under the circumstances of this case creates disparities that are wholly irrational. Had Hill’s federal sentencing occurred at any point after his arrest in 2007 through July 4, 2011, the day his state custody ended, § 3584 would have given the court the discretion to adjust the federal sentence below the ten-year minimum to account for Hill’s state time. For example, if this court had sentenced Hill in May 2011, when he had already served 24 months in state custody, § 3584 would have permitted the court to impose a 96-month federal sentence concurrent with the state sentence, with the two sentences together accounting for the ten-year minimum. See Hernandez,
No rational basis for this distinction exists. As just noted, Blackwell observed two decades ago that “distinguishing between two defendants merely by virtue of their sentencing dates appears contrary to the Guidelines goal of eliminating unwanted sentencing disparities,”
The Government cites two federal appellate decisions that have réjected similar constitutional challenges to § 3584. Doc. 393 at 8-11. Those decisions are unpersuasive.
Like the Seventh Circuit in Cruz, the Second Circuit in United States v. Lucas,
[I]n order to prevail oh this claim, Lucas must overcome the challenged classification’s strong presumption of validity by rebutting every conceivable basis which might support it. Luca's has not met this considerable burden. While Lucas has suggested that his individual circumstances do not present the same concerns that might have motivated Congress to distinguish between discharged and. undischarged sentences, he fails to demonstrate that there are no plausible reasons for Congress to have drawn the distinction at issue.
Id. at 630-31 (alteration, footnote, and internal quotation marks omitted). But Lucas does not indicate how the defendant argued the point or what his “individual circumstances” were. Nor does Lucas suggest what the “plausible reason[ ]” for the statutory distinction might be.
In a footnote, see id. at 630 n. 7, Lucas cites two prior decisions: United States v. Dunham,
With undischarged sentences, there remains uncertainty as to the amount of time a defendant will actually serve. For example, a defendant could be paroled, placed on probation after serving some period of shock detention, given credit off a sentence for good behavior, or have the sentence vacated. There are no such contingencies in regard to a discharged sentence and it is rational to treat the two differently. Thus, because there is a rational basis for treating the two differently, there is no denial of due process by virtue of U.S.S.G. § 5G1.3(b) mandating credit for undischarged sentences but not discharged sentences.
Id. at 418; but cf. United States v. O’Hagan,
This court agrees that certainty .is a virtue, but nonetheless respectfully disagrees with Otto. It is true that undischarged sentences have “contingencies” while discharged sentences do not, but that difference does not even remotely justify the distinction that § 3584 draws between the two types' of sentences. When imposing Hill’s federal sentence, this court knew precisely how much time Hill would serve in the state system, because he had already served it. The court' thus was' able to tailor the federal sentence to ensure that Hill’s aggregate sentence met or exceeded the ten-year statutory ⅛ minimum. Precisely the same is true, of defendants with undischarged state sentences; the court can account for the time the defendant has already served in state custody to ensure that the aggregate sentence meets or exceeds the federal statutory minimum, and then provide that the federal sentence shall run concurrently with the state sentence. There is thus no rational basis for distinguishing between the two situations; contrary to Otto’s submission, both allow for an equal measure of certainty.
Dunham, the other federal appellate opinion cited by Lucas though not by the Government, is unpersuasive as well. Dun-ham holds in relevant part:
We find that there is a reasonable justification for U.S.S.G. § 5G1.3(b)’s distinction between discharged and undischarged state sentences. That distinction ensures that if two defendants who are convicted of identical state law crimes are subsequently convicted on a federal charge for the same conduct that formed the factual basis of their state convictions, then those two defendants will serve an equal term of imprisonment upon their federal conviction, regardless of whether their state sentence had been fully discharged. If, as [the defendant] advocates, U.S.S.G. § 5G1.3(b) did not make this distinction and credited defendants for tiriie served on discharged as well as undischarged state sentences, then a defendant with a previously discharged state sentence would serve a shorter term of imprisonment upon his subsequent federal conviction than would a defendant with an undischarged state sentence. U.S.S.G. § 5G1.3(b) serves to prevent this potential inequity. Because there is a rational basis for U.S.S.G. §-5G1.3(b)’s distinction between discharged and undischarged state sentences, we reject [the defendant’s] equal protection argument. ■
Other than citing and relying on the rationales of Lucas and Otto, the Government makes no arguments supporting the constitutionality of § 3584,
Conclusion
For the foregoing reasons, the court holds that § 3584’s distinction between discharged and undischarged sentences, when applied to a defendant like Hill who is subject to a federal statutory minimum sentence and who has served a discharged state sentence for relevant conduct, is an arbitrary distinction that violates the Fifth Amendment’s due process guarantee. Accordingly, § 3584 does not deprive the court of the discretion to impose a federal sentence under the statutory minimum where that sentence, plus the time served in state custody, equals or exceeds the statutory minimum. And because an aggregate sentence of over ten years for the criminal conduct underlying Hill’s federal and state convictions would be more than necessary within the meaning of and considering all of the factors set forth in 18 U.S.C. § 3553(a), the court sentenced Hill to 93 months’ imprisonment, which together with his. 27 months in state custody results in a ten-year, aggregate sentence.