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Beware Interaction Of Federal, State Criminal Sentences
Law360, New York (December 04, 2012, 12:37 PM ET) -- An often overlooked area of criminal law is the
relationship between a sentence to a federal term of imprisonment and a sentence to a state term of
imprisonment. Although fact-specific, the interaction of these sentences can become rather
complicated. To illustrate this interaction, the following example is presented.
A defendant is arrested by state authorities as a result of a joint investigation conducted by federal and
state law enforcement officials. Prior to bond being set on the charge in state court, or even months
after a failure to bond out on the state charge, the defendant is produced in federal court by the United
States Marshals Service pursuant to a writ of habeas corpus ad prosequendum. As the federal
prosecution proceeds over the course of the following months, the defendant is detained by the United
States Marshals Service.
During this time, state authorities delay prosecution until completion of the federal prosecution. About
a year after the initial arrest, the defendant appears in federal court for sentencing. Within a few days or
hours of sentencing, the United States Marshals Service transports the defendant back to the state
facility where he or she was originally detained by state authorities. The state prosecutor then proceeds
with prosecution on the state charge.
With prosecutors becoming more aggressive, there is an increased risk of parallel state and federal
prosecutions arising out of joint state and federal law enforcement investigations. In these scenarios it is
advisable to revisit the following fundamental concepts regarding the imposition and computation of
federal sentences.

The authority for federal sentence computation is with the United States Attorney General
(delegated to the Bureau of Prisons). See, United States v. Wilson, 503 U.S. 329, 335 (1992).

The sovereign entity making the initial arrest takes custody of a defendant and retains primary
jurisdiction until relinquished. See, United States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005). For
the purpose of sentencing, it is irrelevant whether there was a joint state/federal investigation,
which sovereign is the first to prosecute, and/or which sovereign is the first to sentence a
defendant. If state authorities make the initial arrest, the state retains primary jurisdiction until
relinquished. Likewise, if federal authorities make the initial arrest, the federal government
retains primary jurisdiction until relinquished.

A federal sentence does not commence when a defendant is produced in federal court for
prosecution on a writ of habeas corpus ad prosequendum. See, United States v. Londono, 285
F.3d 348, 356 (5th Cir. 2002) (“A writ of habeas corpus ad prosequendum is only a ‘loan’ of the
prisoner to another jurisdiction for criminal proceedings in the receiving jurisdiction.”) A federal
sentence will not commence until the state lawfully relinquishes custody of a defendant by
agreement, release (bail, dismissal of state charge(s), parole, etc.) or expiration of the state
sentence. United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998)

Prior to commencement of a federal sentence, the time spent serving a state sentence, or the
presentence state time that may be credited toward a state sentence, will not be credited
toward a federal sentence. 18 U.S.C. § 3585(b).

A federal sentence commences on the date the defendant is received in federal custody
awaiting transportation to, or arrives at a federal detention facility. 18 U.S.C. § 3585(a).

The federal district court, not the Bureau of Prisons, has the discretion to order whether a
federal sentence runs concurrently or consecutively with an anticipated but yet to be imposed
state sentence or sentences. Setser v. United States, 132 S. Ct. 1463, 1472-73 (2012)
When representing a defendant first arrested by state authorities and subsequently produced for
prosecution in federal court, it is important to determine whether the state relinquished lawful custody
of the defendant or whether the defendant was produced pursuant to a federal writ. If the state
relinquished custody of the defendant, the federal government obtains primary jurisdiction for
sentencing purposes and the defendant will receive presentence credit toward a federal sentence.
A subsequent state sentence could be ordered to run concurrent or consecutive with the federal
sentence. If the defendant is presented pursuant to a federal writ, the state maintains primary
jurisdiction for sentencing purposes and the defendant will not receive presentence credit toward the
impending federal sentence while being detained on the federal writ. A potential remedy to that
situation is to argue that the federal district court exercise its discretion to impose a sentence that is
concurrent to the anticipated state sentence. However, as in Setser, computation of the federal
sentence may become unpredictable and problematic.[1] In other words, beware of the interaction
between federal and state criminal sentences.
--By Rusty Fortenberry, Baker Donelson Bearman Caldwell & Berkowitz PC
Rusty Fortenberry is of counsel in Baker Donelson's Jackson, Miss., office.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
[1] This article is not intended to address the application of Federal Sentencing Guideline 5G1.3 which
guides the imposition of a sentence on a defendant subject to an un-discharged term of imprisonment.
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