*3 ing, he moved for credit under U.S.S.G. ROSENBAUM, Before JULIE 5G1.3(b) for thirteen imprison- months’ CARNES, GILMAN,* Judges. and Circuit ment he served in Mississippi on custody relevant conduct covered by his federal PER CURIAM: Though sentence. the district pur- court ported to credit Gonzalez-Murillo under guidelines Two sentencing diverge in 5G1.3(b) against that time his federal how treat they spent custody time in state sentence, it to referred what it did as a on relevant conduct that is accounted for “departure.” So when Gonzalez-Murillo sentence, in a defendant’s federal sought a reduced sentence under 18 U.S.C. makes all the difference in this case.1 U.S. 3582(c)(2) following amend- (“U.S.S.G.”) Sentencing Guidelines Manual ment, the district granted court his motion requires the district court to him to sentenced the low end of the “adjust” a defendant’s sentence to credit guidelines amended range, but it deter- him for in custody time served state on it authority adjust mined that lacked the by relevant conduct covered his federal his sentence to reflect credit for time only sentence —but when the defendant in Mississippi custody on relevant has undischarged remaining time on his conduct. Meanwhile, state sentence. § 5K2.23 allows a district court to exercise We independently reviewed the guidelines discretion to “depart[ ]” from record, whether, clear and is not to us at reflect credit for time served original Gonzalez-Murillo’s
in custody state on relevant conduct cov- sentencing, Gonzalez-Murillo’s state sen- ered his federal sentence when the entirely tence of dis- was related completely state sentence is dis- whether, instead, charged or Gonzalez- charged at the time of sentencing. federal Murillo had additional state time remain- guidelines ing contemplate completed.
Because to be Since the answer “adjustment” Part of Chapter question G drives answer to wheth- * Gilman, Taken, Frost, Honorable Ronald Lee 1. See Robert The Not Road Circuit, (1916), Judge sitting by Circuit Mountain Interval available for the Sixth https://archive.org/details/mountainintervOO designation. 29, 2017). (last frosrich visited Mar. pro- appearance his initial
er, in Gonzalez-Murillo’s charge, petition filed required was the United States ceeding, the district for a writ crediting Gonza- in the District of Florida prohibited from Middle time, remand Mississippi corpus prosequendum direct- lez-Murillo’s of habeas ad court to resolve the district to take ing this case to the United States Marshal and, appropriate, modify if Gonzalez-Murillo, question who then custody of sentence ac- reduced County Rankin Jail confined cordingly. Brandon, Mississippi, into federal The Mississippi. writ was
from the state of summary of In its April issued on I. conviction, Mississippi disposition of the *4 - The Offense Conduct A. that the PSR indicates Gonzalez-Murillo United States Marshals was “released to investigating began The United States 19, April 2011. on Service” drug- for Antonio Gonzalez-Murillo Jose 13, April On trafficking in 2008. activities of the earlier issuance Notwithstanding 2010, while Gonzalez-Murillo was writ, however, of the Middle District Florida, in local law- investigation federal indicates Gonza- Florida court docket him as stopped officers he enforcement arrested in the Southern lez-Murillo was through Richland, on his Mississippi, rode 21, Mississippi April on 2011. District of car, In the from California to Florida. way appear- made initial his Gonzalez-Murillo kilograms 4.6 found more than officers charges ance on the federal before methamphetamine. Mississippi magistrate District of Southern discovery, 5(c)(2). Mississippi on this Based P. to Fed. R. Crim. judge, pursuant with possession González-Murillo charged the govern- At counsel for proceeding, substance, and remained a controlled de- ment moved that Gonzalez-Murillo be custody Mississippi authorities in the After waived his tained. Gonzalez-Murillo charges. of those He pending resolution hearing, magis- right to a detention 4, 2011, and, April based on pled guilty on the defendant to the judge trate remanded (“PSR”) report in the fed- presentence to the Middle Marshal to await transfer now, purportedly us was eral case before District of Florida.2 years’ imprisonment, with to ten sentenced 11, 2011, was May On Gonzalez-Murillo years suspended. six in of Florida arraigned the Middle District meantime, 2, 2010, on December In arraign- At this on the federal indictment. Florida, the Unit- in the Middle District of ment, it magistrate judge stated that against an indictment ed States obtained po- appeared Gonzalez-Murillo was Gonzalez-Murillo, from stemming part in bail, eligible April based on an tentially for here, in relevant Mississippi. his arrest As 19, 2011, report Pretrial Services pos- charged conspiracy to the indictment indicating that had been Gonzalez-Murillo methamphet- sess with intent distribute Mississippi from his sentence. released amine. Attorney States con- The Assistant United understanding 2011, his Missis- firmed April purposes for the On “ultimately resulted presence sippi sentences had obtaining Gonzalez-Murillo’s sentence, course, not have been being a state he would were Of serving custody bail. into federal while still writted argued served” Gonzalez- Gonzalez-Murillo noted that he had roughly Murillo should detained. Counsel for thirteen months state custody for the Mississippi events and Gonzalez-Murillo indicated his belief that 5G1.3(b)(l) sought credit under U.S.S.G. set the court could reasonable conditions for that state custody on his federal sen- of release but stated that he would make Though tence. government did not ob- argument by a later release mo- ject, (without it recommended referencing tion. 5K2.23) that the district court Ultimately, Gonzalez-Murillo entered a impose the form depar- credit of a plea guilty to the conspiracy count. his ture or a variance to be sure that Gonza- plea agreement, Gonzalez-Murillo admit- lez-Murillo received his credit. The district ted, part of the factual basis agreed that Gonzalez-Murillo was plea, guilty that he “in process entitled credit his time in Mississippi transporting approximately pounds of because time was for relevant offense Describing govern- conduct. methamphetamine” April suggestion ment’s as the thing,” “safest when he was arrested in Mississippi. the district court to grant decided the thir- teen-month calling “depar- *5 Sentencing B. Gonzalez-Murillo’s 2011 ture.” At Gonzalez-Murillo’s federal sentenc- So the district court subtracted thirteen ing, the district court the Sentencing used from months the low of guideline end the Guidelines Manual in effect as of Novem- (108-135) range at arrive a sentence of 1, 2011, ber to determine an offense level 95 months’ In imprisonment. pronouncing of an advisory guidelines range 31 and sentence, the the explained district court imprisonment. 108 to 135 months’ In calcu- that it had “sentenced [Gonzalez-Murillo] lating that range, the court held Gonzalez- at low advisory the end the responsible Murillo for offense in- conduct range after departed.” [it had] It further five, fifteen, volving least but less than that noted it had “sentence[d] [Gonzalez- kilograms of methamphetamine, corre- Murillo] to 95 months based on sponding to a base offense level of 36 at 5G1.3(b).” [U.S.S.G. ] determination, that time.3 part As of this In the Statement of Reasons for Gonza- the district court Mississippi included the sentence, lez-Murillo’s the district court as events relevant conduct under U.S.S.G. having described itself as a “de- § 1B1.3. parture pursuant [§ ] 5G1.3(b)(l), adjusted the sentence for During the sentencing, became clear already the time [Mississippi], that thought the district court that a total is relevant conduct and will not be sentence at the low guidelines end credited to the federal sentence range appropriate would be to punish Gon- Bureau of Prisons.” zalez-Murillo all of his for relevant con- duct, including Mississippi events. The point, At one court district noted government agreed. that Gonzalez-Murillo had been sentenced (U.S.S.G. 3El.l(a) (b)). 3. To arrive bility at an offense level of The dis- points appli- district court subtracted two criminal-history trict court a also determined (U.S.S.G. 5C1.2) safety cation valve category of I. points acceptance responsi- and three at the low end of amended in the fenced Missis- years’ imprisonment to ten range imprison- months’ guidelines during the sentenc- At no time sippi case.4 —87 court the district however, argued that indi- ment—it parties did the ing hearing, grant any further power lacked had cate that Gonzalez-Murillo government particular, reduction. In that earlier remaining to served on the thirteen-month credit described example, For defense counsel sentence. origi- applied had at the the district court federal sentence requested never “departure” a under sentencing as nal concurrently with the state be made to run view, since, in its argued 5G1.3 and sentence, court indicated that Gon- and the a dis- departures only, § 5G1.3 authorizes remain the Mar- zalez-Murillo would a may reapply court trict a designation of pending shal’s 3582(c)(2). resentencing under facility. gov- agreed The district court with the Reduction C. The Motion for Sentence It reduced Gonzalez-Murillo’s ernment.5 But it months. concluded sentence to 87 2016, Gonzalez-Murillo February In impose it was not authorized reduction under a motion for sentence filed Like the Unit- below 87 months. 3582(c)(2). support of his 18 U.S.C. as, States, court characterized itself ed argued that application, Gonzalez-Murillo original sentencing, having credited at the Guidelines, made 782 to Amendment 5G1.3(b)(l) through retroactively Amend- applicable Yet the Mississippi. the thirteen months 34 the level ment reduced to offense described what it had done district court drug quantity associated with “departure.” And since district result, responsible. As a which he was held one departure, other than apply *6 contended, the amend- Gonzalez-Murillo assistance, on substantial based decreasing his had the effect of ments 3582(c)(2) proceed- reduced-sentencing § 87 108 months’ im- guidelines range to not Gon- ings, the district court did a re- prisonment, making him zalez-Murillo for the thirteen months duction of sentence. As Gonzalez-Mu- appeals. Mississippi. now the district court could things, rillo viewed as 74 to reduce his sentence low choose II. end imprisonment, since low
months’ months, and range 87 guidelines considering appeal proceed a had found previously district court under modify a sentence 18 U.S.C. ing to 5G1.3(b)(l), that, under he was 3582(c)(2), novo the district we review de time months’ credit entitled 13 regarding conclusions legal court’s Mississippi. Sentencing authority under the scope of its White, 305 Though government oppose did Guidelines. See (11th 2002). 1264, 1267 request to be resen- F.3d Cir. noted, April service on similarly was released to Marshal’s the PSR reflects As 19, 2011. ten Mississippi Gonzalez-Murillo to sentenced years' imprisonment, including six-year a sus- Gonza- district court ruled on 5. Because the pended imprisonment. And it term does 3582(c)(2) motion in March lez-Murillo's time state that the was modified to sentence 2016, Sentencing the 2015 version of U.S. served, that Gonzalez-Murillo but does state governed. Manual Guidelines
1335
III.
trict court to
a prisoner’s
reduce
sentence
when he was sentenced under a'sentencing
To determine whether Gonzalez-Murillo
range
the Sentencing
la-
Commission
adjustment
was entitled to an
for his Mis-
retroactively
ter
lowers. See U.S.S.G.
sissippi custody to his reduced sentence
1B1.10;
Frazier,
United States v.
3582(c)(2),
imposed under
we must begin
2016).
1329,
F.3d
To deter-
statutory
with the
language. Section
prisoner’s
mine a
eligibility for a reduced
3582(c)(2) provides, in
part,
relevant
lB1.10(b)
sentence, §
sets forth the follow-
Sentencing
when the
Commission retroac-
ing relevant procedure:
range
tively
applicable
lowers a
(1)
In General. —...
[T]he
shall
prisoner,
to a
“the court
reduce the
determine the
amended
imprisonment,
considering
term of
after
range that would
been appli-
3553(a)
the factors set forth in
section
cable to the defendant
if
they
applicable,
extent
are
if such
amendment(s)
guidelines
to the
a reduction
applicable
is consistent with
had been in effect at the
policy
by
Sentencing
issued
statements
defendant was sentenced. In mak-
3582(c)(2).
Commission.” 18 U.S.C.
ing
determination,
such
the court
shall
only
substitute
the amend-
Supreme
The
has explained
Court
ments ...
corresponding
forth two-step pro
sets
guideline provisions that
ap-
were
determining
cess for
whether
sentence
plied when the defendant was sen-
granted.
modification
should
See Dillon
tenced and shall
leave all other
States,
826-27,
v. United
560 U.S.
guideline application decisions unaf-
(2010). First,
S.Ct.
Beginning with the first we turn step, to (1) § under subdivision of this sub- 1B1.10 to U.S.S.G. ascertain whether section. for a re- 1B1.10, duced sentence. Section titled “Re- lBl.lO(b). § in Imprisonment duction Term of aas (Poli- 1B1.10(b)(2) Result Range that, except of Amended Guideline Section clarifies cy Statement),” generally permits a dis- sentences beneath the original reduced (a) the kinds range a result The court shall determine as guidelines
bottom of the guideline range assistance, of sentence and the for substantial departure of a (see 18 guidelines as set in the forth defendant’s court shall reduce “the 3553(a)(4)) by § applying U.S.C. imprisonment under 18 U.S.C. manual in the provisions 3582(c)(2) to term that § 1B1.10] [§ and order, following except specifi- as minimum of the amended is than the less cally directed. under subdivi- guideline range determined (1) of this subsection.” U.S.S.G. sion (1) Determine, pursuant § 1B1.2 lB1.10(b)(2). Guidelines), of- (Applicable guideline fense from section 1B1.10, commentary §to we which The Conduct) (Offense Chapter Two follow,6 guidance further provides must of con- applicable the offense It guideline. ex- apply how must §' 1B1.2. viction. See that, referring to the plains prisoner’s in range” under “applicable guideline (2) level Determine base offense lB1.10(a)(l), guide- 1B1.10means “the any appropriate specif- and apply to the range corresponds line offense characteristics, ic offense cross history category level and criminal deter- references, special instruc- lBl.l(a), §to which is pursuant mined tions in the particular contained any de- Chapter before consideration in in the guideline determined Two parture provision the Guidelines Manual order listed. § 1B1.10 variance.” U.S.S.G. cmt. (3) adjustments Apply appro- as
n.l(A). victim, role, and priate related to justice Parts obstruction from previously this com- construed We A, B, Chapter Three. and C of mentary require evaluating a court .§ motion for reduction of sen- apply eight steps all of U.S.S.G.
tence
(5)
adjustment
Apply
appro-
as
lBl.l(a)
to determine
in order
priate
accep-
defendant’s
range
amended
responsibility
Part
tance of
from
lB1.10(a)(l).
Hippolyte,
Chapter
E of
Three.
2013).7
535,
F.3d
540-41
As
case,
(6)
relevant
Determine the defendant’s crimi-
1B1.1(a),
turn,
history category
specified
nal
instructs as follows:
States,
through
6.
United
G to determine various
See Stinson v.
U.S.
(1993);
requirements
options.”
113 S.Ct.
(7) explained has guideline the. range Determine § purpose of 5G1.3 “attempting] A Chapter Part Five that cor- achieve some coordination of sentences im- responds to the offense level and posed separate prosecutions [where occur history category criminal deter- in part based on the same relevant con- mined above. with eye having pun- duct] toward such (8) For particular guideline ishments approximate the total penalty range, B determine from Parts that would imposed have been had the through Chapter G Five the sentences for the different been offenses requirements op- and at the same time.” Witte v. Unit- imposed to probation, tions related impris- States, ed 515 U.S. 115. S.Ct. onment, conditions, supervision (1995). terms, By L.Ed.2d its fines, and restitution. requires guideline “adjust” the court to a defendant’s sentence all when four condi- lBl.l(a). Here, govern- (1) tions sets forth are satisfied: ment, court, the district and Gonzalez- spent defendant has time in custody (“pri- agreed applying Murillo all steps one custody”) or other than for the convictions lBl.l(a) through §of seven results in a (2) sentenced; for being which he is guideline range of im- 108 months’ time served has been for relevant conduct prisonment. We share that view. that is for by accounted im- sentence posed But that does our complete inquiry. not the federal crime of conviction (3) Hippolyte Instead, sentencing; consideration at the binds us to apply lBl.l(a)(8) the Bureau of Prisons will itself credit before can arrive at the (4) spent prior custody; guideline range purposes amended undischarged defendant has time remain- lB1.10(a)(l). lB1.10(b)(l) And re- ing prior custody: on his quires 3582(c)(2) district court on a motion to “leave all other appli- If ... a term of imprisonment resulted cation decisions unaffected.” U.S.S.G. from another offense that is relevant lB1.10(b)(l). if any So of Parts B conduct to instant offense of convic- through Chapter G Five at applied Gon- ..., tion the instant zalez-Murillo’s original sentencing, we offense shall be as follows: must continue to apply part those (1) adjust court shall the sentence parts way the same in resolving the any imprisonment period of al- 3582(c)(2) motion. We therefore consider ready undischarged served on the whether Parts B through of Chapter G if the court Five effect Gonzalez-Murillo’s period determines that such of im- applicable guideline range. prisonment will credited to the federal sentence the Bureau proceeding in this Prisons; case, that, the district court concluded *9 original (2) sentencing, the sentence for the instant offense 5G1.3(b)(l) had applied § imposed U.S.S.G. shall run be concurrent- —a a requires “depar- im- that as justment of section undischarged term ly to the if it is departure only it can a ture.” So prisonment. “adequately not taken into consideration” 5G1.3(b)(l). § U.S.S.G. course, mere by guidelines. Of the the 5Gl.S(b)’s 5G1.3(b) § renders the language demonstrates Section existence result, adjust the mandatory; a court must a not case. As a is the provision 5G1.3(b)’s 5G1.3(b) adjustment § re- depar- § cannot be a sentence when prisoner’s satisfied. See U.S.S.G. ture. quirements are 5G1.3(b)(1) (stating “the sentence § 5G1.3(b) applies, applica- § Where be imposed instant offense shall for the specify how district tion notes further adjust shall the sentence the court
follows: court memorialize on criminal should ”) added); see also United (emphasis ... 5G1.3(b) § judgment its determination that 562 F.3d Knight, v. States applies: 2009) remanding for (vacating and Judg- court note on the [T]he should resentencing the district court did where (i) Criminal in a Case Order ment in prisoner not for credit the 5G1.3(b)); § (e.g., applicable subsection conduct). custody on relevant state (ii) by the amount of time which adjustment significantly, And (iii) adjusted; the un- being sentence is 5G1.3(b) departure. § not a requires is discharged imprisonment term of a term art under the “Departure” is adjustment given; and being which the is than Sentencing Other those Guidelines. (iv) a sen- that the sentence is guidelines expressly so departures that 5G1.3(b) §to pursuant tence reduction (sub- see, § e.g., 5K1.1 designate, U.S.S.G. imprisonment that will period a (death assistance); § re- id. 5K2.1 stantial by not the Bureau of Pris- be credited offense), a from district sults ons. depart guidelines only from the when it n.2(C). § U.S.S.G. 5G1.3 cmt. or aggravating mitigating an “finds kind, degree, to a circumstance of a or he is If a defendant cannot show that 5G1.3(b) into consideration adequately taken credit under entitled to receive Sentencing formulating in Commission prior custody, may still be able a sentence guidelines that should result 5K2.23 for his time obtain credit under [by n.5.8 from that described 5G1.3 cmt. different served. See U.S.S.G. 5G1.3(b) Booker, many Though guidelines].” similar ways, § from it in three 220, 234, 5K2.23 differs 125 S.Ct. 160 L.Ed.2d U.S. (1) § (2005) 3553(b)(1)) respects: applies material 5K2.23 (quoting 18 U.S.C. omitted). prior when the has been served (quotation marks (rather fully discharged a sentence is undischarged) at time of the fed- Nothing relating than (2) sentencing; ad- 5K2.23 allows for designates eral expressly Departure pleted been undis- 8. “Downward Provision.—-In the discharged imprisonment, charged case of term at the time of prohibited departure if the downward is (Discharged § 5K2.23 instant offense. See (A) completed serving term has defendant Imprisonment).’’ 5G1.3 Terms of (B) (b) imprisonment; and would subsection cmt. n.5. adjustment provided had that com- *10 (3) departure, adjustment; prior not sentence was completely discharged § or instead requirements undischarged when 5K2.23 included an por- are tion. satisfied, guideline does not mandate
that a court prior district credit the custo- case, rather, dy; the court has discretion to de- Statement of Reasons confirms that part if downward it so. wishes do Sec- district original court provides, tion 5K2.23 part, relevant appeared § to believe that 5G1.3 applied,
Discharged Imprisonment Terms of expressly identifying it as its basis for Statement) (Policy A depar- downward subtracting thirteen months from the sen may it appropriate ture be if tence otherwise would the defendant on (1) And, fact, Gonzalez-Murillo. completed serving has district a term of im- findings § court made on three of (2) (b) 5G1.3’s prisonment; and subsection First, requirements. the court determined § provided 5G1.3 would have an ad- spent thirteen justment completed had that months in Mississippi custody on Missis imprisonment been undischarged at the Second, sippi charges. the court found that time of sentencing for the instant of- spent the time Gonzalez-Murillo in Missis such Any departure fense. should be sippi custody was relevant conduct for fashioned to pun- achieve reasonable which he was held accountable in his sen ishment for the instant offense. charges. tence federal conspiracy And § U.S.S.G. 5K2.23. third, the court concluded that the Bureau of Prisons would not credit Gonzalez-Mu course, Chapter Of Part K of where rillo for that time. resides, § 5K2.23 not fall does within Parts Judgment But neither nor B through Chapter way G of Five the Statement Reasons indicates whether 5G1.3(b) result, § does. As a unlike with a Gonzalez-Murillo’s Mississippi 5G1.3(b) adjustment § a court —which completely discharged at the time of lBl.l(a) reapply § must under if it elects Meanwhile, his federal sentencing. to reduce a defendant’s sentence under arraignment proceeding before the 3582(c)(2) § reapply —a judge in magistrate suggests Florida § departure determining 5K2.23 it Adding mystery, was. to the the district “applicable range” under original court at the sentencing described lBl.l(a) § it when chooses to reduce a purported apply the credit it under 3582(c)(2). defendant’s sentence under 5G1.3(b) a “departure,” it so later pro- concluded in the 2016 when evaluating So we are whether a ceeding authority lacked prior defendant should be credited for cus- noted, reapply credit. As we have tody when a district court has chosen to though, any awarded exercise its discretion to reduce defen- 5G1.3(b) adjustment, depar- is an 3582(c)(2), dant’s sentence under 5G1.3(b)’s ture, requirements once must ascertain whether satisfied, apply are the district court must governed 5K2.23 the court’s earlier adjustment reduced sentence key award credit. The differentiating impose. it chooses to factor between the two provisions concerns whether, the question of at the we cannot certain from Since original defendant’s sentencing, record whether Gonzalez-Murillo’s Missis- *11 1340 Here, re- Sentencing Guidelines discharged at the what had been
sippi sentence unambiguous. I write is clear and quire in this case original sentencing of his only apparent that the separately to note whether, instead, of it remained part §§ 5G1.3 incongruity of results between this matter undischarged, we remand line 5K2.23 seems out of with and finding a to make factual district §of 5G1.3. purpose regard. Mississippi If the sentence in that discharged when Gonzalez- fully was not indicated, Supreme As have we sentenced, originally the dis- Murillo was as an “at- has described 5G1.3 Court apply the thirteen-month court shall trict some coordination tempt] to achieve 5Gl.S(b) to Gonzalez-Muril- adjustment separate prose- imposed [where sentences re- resulting lo’s reduced sentence part on the same cutions occur based If, of 74 months. on the sentence duced eye an toward hav- conduct] relevant with hand, Mississippi was sentence other approximate the to- ing punishments such Gonzalez-Murillo discharged when fully imposed have been penalty tal would sentenced, the district court originally of- different had sentences to further reduce Gonza- has no discretion at time.” the same fenses been lez-Murillo’s reduced below Witte, 2199. 515 U.S. at S.Ct. re- months because credit it awarded Indeed, Supreme Court has character- 5K2.23, departure from a sulted “[significant safeguard[ ] ized 5G1.3 as may be type departure and Sentencing into built Guidelines §a applied proceeding. against having protect petitioner [a] by dupli-
length multiplied of his sentence criminal IV. cative consideration the same 405,115 conduct.” Id. S.Ct. discussed, the reasons we have we For im- further elaborated on the We have proceedings case for further remand this “protecting] 5G1.3 in portant role so, doing opinion. consistent with duplicative prose- from criminal defendant if we note that Gonzalez-Murillo’s Missis- Bidwell, States v. cutions.” United fully discharged sentence was not sippi 2004). 1206, 1209 As we F.3d sentenced, thereby originally when was Jeopardy “The Double explained, have making applicable, appears 5G1.3 different sover- prevent Clause does for re- (i.e., government a state eigns immediately or in the near either lease from a de- government) punishing federal reason, future. For this we direct the dis- But the same criminal conduct. fendant for proceed- the further trict court to conduct [explaining §§ the mean- 5G1.3 1B1.3 possible ings in this case at the earliest Guidelines] in the ing of “relevant conduct” time. one, provide These sections seek ‘to do. FOR PRO- REMANDED FURTHER same criminal punishment uniform ” CEEDINGS. omitted). (citation activity.’ Id. state sentence Whether defendant’s ROSENBAUM, Judge, Circuit fully been dis- for relevant conduct has concurring: charged or not at the time of his federal logical course, apply sentencing Of are the law seems to me to no bound determina- bearing is on the district court’s as it is written. So that what we do. conduct, total all appropriate involving tion of sentence for fences relevant “a de- relevant conduct on which it is fendant with a previously discharged state the defendant. sentence would serve a shorter term of imprisonment upon subsequent *12 I am aware that two circuits have found conviction than would a defendant with an in rational basis the difference treat- undischarged state sentence.” Id. discharged ment between defendants with undischarged respectfully, and sentences on relevant disagree. Most I Imagine Dunham, conduct.1 See United States v. two charged by defendants both the state (6th 2002); Unit- 295 F.3d 610-11 Cir. government and the federal for the same Otto, ed States conduct, 176 F.3d but A Defendant is arrested on 1999). disagree Cir. Most I respectfully, charges his state before Defendant B. analysis that either circuit’s survives scru- Both are ultimately defendants sentenced tiny.2 to the exact same term of ten months’ imprisonment for their state Be- crimes. First, opined Sixth Circuit has A cause Defendant was arrested earlier discharged un- distinction between and B, though, than Defendant A Defendant discharged sentences that if two “ensures completes his being sentence before ar- defendants who are convicted identical B, rested for his federal crimes. Defendant subsequently state law crimes are convict- hand, other is writted into federal ed on a federal for the con- charge same custody to face federal charges while he duct that formed the factual basis of their still has one month left on the sentence convictions, state then those two defen- A already completed. Defendant has dants serve an term of equal imprison- will cases, In both the district court concludes conviction, upon ment their federal regard- total appropriate that the sentence is two less of whether their state had sentence years’ imprisonment. Dunham, fully discharged.” been 295 F.3d view, 5G1.3(b), In at Sixth if this 611. Circuit’s Under Defendant B must be distinction did not exist prison and defendants sentenced 15 months federal were credited for time served on instead of 24 months both because must discharged undischarged and state sen- receive credit the nine months he has offense(s) equal-protection fully 1. A third circuit denied an been taken have into ac- challenge to 18 U.S.C. 3584's distinction in count determination the offense level discharged treatment between and undis- offense, instant the sentence for the sentences, charged but it did not offer offense instant shall to run con- explanation why as to distinction has currently undischarged impris- to the basis, finding rational instead that the defen- provision effectively is onment.” That had dant failed to meet his burden to show 1.3(b)(2). equivalent of what is now 5G The lacking. that a rational basis was See United provisions might help explain difference in Lucas, (2d States v. 745 F.3d 630-31 analysis. simpli- some of these circuits' But to 2014). fy reasoning my discussion of the that the Eighth provided justifying and Sixth Circuits Circuits, Eighth and fairness to Sixth in treatment between dis- difference 5G1.3(b) they the version of reviewed sentences, charged undischarged I ad- applicable differed from the one in Gonzalez- they though dress their articulated reasons as Murillo’s The did case. older version not con- Instead, response 5G1.3(b)(1). offered them in to the current ver- tain what is now 5G1.3(b). provided, sion then “If ... the undis- charged term resulted from uncertainty to the amount of remains since his state sen- prison in state Otto, discharged. And the fully actually
tence is a defendant will serve.” time run on the state must tenth month So, according F.3d at 418. im- concurrently with the federal sentence Circuit, pa- “a defendant could be Eighth 5G1.3(b)(2). between his So posed. See roled, serving probation after placed on sentences, B Defendant state detention, given period of shock some A, Defendant total of months. serves a behavior, or good credit off his however, to credit for is not entitled Id. But with a the sentence vacated.” because ten months state sentence, no such discharged are “[t]here completely dis- has been state sentence contingencies.” Id. his federal sentenc- the time of charged *13 could the district court choose ing. Though view, ex- my analysis In does not 5K2.23, it downwardly depart under to time on plain why crediting how or imposes it a not to do so. So decides time, remaining with but state sentences imprison- of months’ federal sentence fully discharged sen- crediting not state A will then serve a total Defendant ment. conduct, on relevant furthers tences on relevant con- of 34 months his sentence single punish- purpose imposing of total duct, accounting for both the state and Rather, it all ment for relevant conduct.4 spend.3 federal time will crediting all time seems to me state are amended so guidelines if the And for already served relevant conduct— B A and are for that Defendants fully discharged or whether sentence is 3582(c)(2), then sentences under reduced not at the time of federal —and if, during original sentencing, De- even his state time con- running undischarged departure A a downward fendant receives currently sentence im- with in state on rele- for time served way accomplish a total posed only is the conduct, get the of vant he cannot benefit con- that accounts for all relevant 3582(c)(2) proceeding. that credit duplicative. without-being duct But B must the credit. Defendant receive short, why it is clear me Circuit, Eighth it reasoned As for sentences, undischarged or nature of undischarged discharged there mere that “[w]ith "arbitrary case on tion was an that violates the [one] 3. is not before us equal-protection challenge as it was process guarantee.” before Fifth Amendment’s due us, we do not consider and I Sixth Circuit. So Again, though, I this issue is not before so Instead, suggest I do not a view that issue. opine on it. I Hill’s determination do not cite purpose Dunham for the sole of ex- discuss only purpose demonstrating of that the why plaining Sixth I do believe discharged how and un- distinction between explanation for the difference in Circuit’s discharged terms of are treated discharged and treatment between undis- purpose seems inconsistent with charged sentences shows how the mere fact effectively impose a total term 5G1.3 a state sentence have been dis- imprisonment that for both the fed- accounts charged undischarged or bears on what state eral and relevant conduct. punishment all total relevant conduct should be. The Northern District Illinois anything, suggests it that better reasons If about Dunham’s reached similar conclusion discharged time than undis- exist analysis when it considered it in the context 5G1.3(b)(2) charged But accounts for time. evaluating in 18 the distinction U.S.C. undischarged problem by making discharged undischarged 3584 between concurrently imposed. with federal time run imprisonment. terms of See United States Hill, (N.D. 2016). F.Supp.3d Ill. There, the court concluded that the distinc- involving a state sentence relevant conduct affect, at original
should either his sen-
tencing proceedings, his
defendant’s entitlement to credit custody. Perhaps good
state reason
the distinction treatment between dis-
charged undischarged ex- sentences
ists, one light that makes sense in
purpose of as the Supreme explained
Court has that purpose. But if
not, extinguish is time to that difference
in treatment. *14 America,
UNITED STATES of
Plaintiff-Appellee,
Miguel MONZO, Miki, a.k.a. El
Defendant-Appellant.
No. 16-10222 Appeals, Court
Eleventh Circuit. 7, 2017)
(April