Sentencing Court Can Decided Not to Decide Concurrency With State Sentence

USv. Lynn: Lynn was involved in a traffic stop that ended with a police officer landing on top of him and being shot. He was charged in state court with, among other things, attempted first-degree murder and, while he was in state custody, indicted federally for being a felon in possession of a firearm. He pleaded guilty to the federal charge. At sentencing the district court imposed the maximum sentence of 120 months in prison. After hearing arguments about how that sentence should interact with any sentence imposed at the conclusion of the state proceedings, the district court said it was “‘terribly difficult’ for it to calculate what portion, if any, of Lynn’s sentence should run concurrently with his anticipated state sentence.” The district court eventually decided it was “no able to make a determination” and therefore “decline[d] to make a finding with respect to that issue. The state court later imposed a sentence of 104 to 137 months in prison.

After affirming the use of the murder cross reference, the Fourth Circuit also affirmed the district court’s decision not to decide on the concurrency of the federal and state sentences. The court noted that statutory law “allows” judges to impose concurrent and consecutive sentences. And while the Guidelines purport to require a concurrent sentence in the face of a pending state sentence for the same conduct, the court noted that they’re advisory and so cannot require the district court to do anything. Instead, the district court’s only duty is to consider the relevant sentencing factors in determining whether to make a concurrent/consecutive decision. In this case the district court “provided a thorough explanation of its sentence” and was fully aware of its discretion to impose a concurrent sentence “but simply declined to exercise its discretion.”* While it most routine cases courts should make such a determination, it is not a requirement in every case.

Judge Floyd dissented, arguing that while the Guideline provision was not binding it was still the advice of the Commission which the district court was required to either adopt or reject, but it “did not have the discretion to make no decision on concurrency at all.”

* (see also – “If you choose not to decide, you still have made a choice”)