Defendants-Appellants pled guilty in the Southern District of New York (Cathy Sei-bel, Judge) to conspiring to distribute a controlled substance in violation of 21
Appellants all participated in the charged conspiracy for several years prior to their federal indictment. All served time in state prison for crimes that were part of the conspiracy and those offenses were “relevant conduct” under U.S.S.G. § 1B1.3 for the federal crimes. All finished serving those sentences before they pled guilty in federal court. But at sentencing, the district court concluded that it did not have authority to adjust appellants’ sentences by running those sentences concurrently to those discharged terms.
The Sentencing Guidelines instruct district courts to run a prison term “concurrently to the remainder of [any] undischarged term of imprisonment” if the recommended “term of imprisonment resulted from another offense that is relevant conduct to the ... offense of conviction.” U.S.S.G. § 5G1.3(b). In other words, when the defendant is serving time on a prior conviction that relates to the new charge, the Guidelines direct that the defendant serve the new sentence parallel to the old.
On appeal, as before the district court, appellants argue that the principle embodied in § 5G1.3(b) and applied in Rivers applies with equal force to prison terms that defendants have already served. In other words, appellants urge this court to stretch the meaning of “undischarged term of imprisonment” in § 5G1.3(b) to encompass discharged terms of imprisonment. Were we to interpret § 5G1.3(b) as appellants suggest, the district court would be authorized to sentence
We reject appellants’ argument.
Our decision in Rivers offers appellants no comfort. As noted above, we held there that adjusting a sentence to run concurrently with an undischarged term of imprisonment is “no less proscribed by the statutory minimum than where the prisoner is credited by the BOP for time already served.”
Appellants suggest that 18 U.S.C. § 3553 endows courts with authority to craft a reasonable sentence that reflects time already served on related state charges. But we have held that the general instructions in § 3553 cannot trump a specific statutory command to impose a minimum sentence. See United States v. Samas,
Lucas (but not the other appellants) argues that our reading of U.S.S.G. § 5G1.3(b) and 18 U.S.C. § 3584 may lead to irrational results. A defendant who finishes serving a state term while awaiting a hearing date in federal court, for example, will not receive the benefit of a concurrent sentence even though he might have qualified for one had the federal case proceeded more quickly. Lucas argues that this renders the statutory distinction between undischarged and discharged sentences unconstitutional under the equal protection component of the Fifth Amendment’s due process clause. But as Lucas concedes, the distinction between unfinished and completed sentences need only survive rational basis review to pass constitutional muster. See Griffin v. Mann,
Therefore, in order to prevail on this claim, Lucas must overcome the “challenged classifieation[’s] strong presumption of validity” by rebutting “every conceivable basis which might support it.” Id. at 70-71 (internal quotation marks omitted). Lucas 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,
In sum, we hold (1) that neither U.S.S.G. § 5G1.3 nor 18 U.S.C. § 3584 authorizes a district court to run a term of imprisonment concurrently with a discharged term of imprisonment on related charges, and (2) that those provisions’ distinctions between discharged and undischarged terms are not irrational.
We have reviewed appellants’ remaining arguments and conclude they are without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
Notes
. Given the nature and quantity of drugs involved, appellants would normally have faced five-year mandatory prison sentences, but because all three appellants had prior drug-related felony convictions, the minimum was increased to ten years of imprisonment. See 18 U.S.C. § 841(b)(1)(B).
. The language of § 5G1.3(b) is mandatory. However, as will be seen below, we can dispose of this case without expressing any view as to the extent to which that guideline retains mandatory force after United States v. Booker,
. This is not the first time we have addressed that argument. We have rejected it in non-precedential summary orders, essentially for the same reasons set forth in this opinion. See United States v. Hill,
. Our sister circuits have repeatedly emphasized that § 5G1.3 does not apply to discharged terms of imprisonment. See Hasan v. Sniezek,
.Of course, in the absence of a mandatory minimum sentence, the district court retains the discretion to take into account any prior discharged sentences served by a defendant to the extent that the fact of such a prior sentence bears on the determination of what sentence is sufficient, but not more than necessary, to serve the purposes of punishment set forth in 18 U.S.C. § 3553(a). Indeed, the Guidelines recommend that the district court consider lowering a sentence where a defendant has completed a term of imprisonment on a related crime. Although a vestige of the days when a guidelines sentence was mandatory absent grounds for departure, the current version of § 5K2.23 still instructs district courts that "[a] downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 ... would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense.” But neither a non-guidelines sentence nor a § 5K2.23 departure may go below a statutory minimum absent specific statutory authorization.
. Our analysis is consistent with that of the Seventh Circuit. That court too has held, as we did in Rivers, that a sentencing court could comply with a mandatory minimum sentence by adjusting that sentence to reflect time already served on an undischarged state sentence with which the federal sentence could be made to run concurrently. United States v. Ross, 219 F.3d 592 (7th Cir.2000). The court later ruled that such an adjustment was not available where a defendant's prior state sentence was discharged, because § 3584(a) would not permit concurrent sentencing. United States v. Cruz,
. See e.g., United States v. Dunham,