Sovereign v. Sovereign: Achieving Desired Sentencing Outcomes in Two Dueling Jurisdictions

When a criminal defendant has dueling state and federal cases, only one sovereign can be the primary custodian of (i.e., have primary jurisdiction over) a criminal defendant. And the primary custodian’s sentence will always be served first. It seems easy enough—a criminal defendant can only be in one place at one time. But because of how federal sentences are calculated and enforced, primary custody can be the difference between a concurrent or de facto consecutive sentence. Understanding state versus federal jurisdiction in this context is thus crucial for defendants, attorneys, and judges who need to predict how one sentence will be construed in relation to another in the context of competing sovereigns.

The Basics

Primary jurisdiction dictates the order of operations for defendants facing multiple cases—and multiple sentences—in a multi-sovereign context. Determining who has primary custody of a defendant and working out its impact on multiple terms of state and federal imprisonment is not always an easy task. Each case will have its unique complications. But two simple rules help: (1) The sovereign who first detains the defendant without relinquishing jurisdiction holds primary custody, and the primary custodian’s sentence is served first; and (2) federal sentences are calculated and enforced only by the Bureau of Prisons, and a state court judgment will not impact its decisions.

Rule #1—The sovereign who first detains the defendant without relinquishing jurisdiction holds primary custody, and the primary custodian’s sentence is served first.

Note this rule is not that the sovereign who first sentences the defendant holds primary custody. Control over the priority of a sentence is by primary custody only. And the first key to primary custody is that it is held continuously. The Seinfeldian reservation trope applies—anyone can take a defendant into custody, but it is the holding of the defendant that matters. There are only a few ways a sovereign can relinquish its primary jurisdiction over a defendant:

• An order releasing on own recognizance or bail.
• The dismissal of all charges (even if just temporarily).
• An acquittal.
• The expiration of sentence.

Once one of these scenarios occurs, the defendant is no longer being held, and primary custody shifts to the next sovereign, usually the one who has placed a detainer on the defendant.

Writs of habeas corpus ad prosequendum and ad testificandum do not cause a relinquishment of custody. Writs of these sort just allow one sovereign to borrow a defendant from another sovereign for purposes of judicial economy. A writ of habeas corpus ad prosequendum in a case, however, is usually the best evidence a defendant is not in the primary custody of the receiving jurisdiction when the writ was issued. It is also a red flag that another imposed or anticipated sentence may take priority. The federal government often uses writs to borrow defendants from states and local entities to accomplish timely prosecutions, and thus many federal sentences must take a backseat to a primary state case.

In short, if a defendant is in your jurisdiction based on a writ, do not ignore it, and do not expect that being the first sovereign to sentence a defendant will affect the primacy of the sentence. Look instead to who first detained and held the defendant. Only that will tell you which sovereign’s sentence will be served first.

Rule #2—Federal sentences are calculated and enforced only by the Bureau of Prisons, and a state court judgment will not impact its decisions.

The second key to primary jurisdiction is understanding how federal sentences are calculated and enforced. To begin with, once a federal judge has imposed sentence, it loses jurisdiction to modify the judgment absent discrete circumstances permitted under the rules, such as for “substantial assistance” under Fed. R. Crim. P. 35, or to correct a clerical error under Fed. R. Crim. P. 36. No law or rule allows a federal judge to modify its judgment to “concurrent” or “consecutive,” or to change imposing time in prison based on some later event in state court. Any motion asking for this relief in federal court would be denied as lacking jurisdiction.

Once a federal sentence is imposed by the US courts, the executive branch, through the Bureau of Prisons (BOP), takes over to decide how the federal sentence will be served. There are several important statutes at play:

• 18 U.S.C. § 3584(a)—“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. § 3585(a)—Federal sentences start “on the date defendant is received in custody” at “the official detention facility” where “the sentence is to be served.”
• 18 U.S.C. § 3585(b)—Credit for time served is used in the federal computation of sentence only when it “has not been credited against another sentence.”

It cannot be overstated how much discretion the BOP has in applying federal law to compute and implement federal sentences: “The Director of the [BOP] is authorized to exercise or perform any of the authority, functions, or duties conferred or imposed upon the Attorney General by any law relating to the commitment, control, or treatment of persons . . . charged with or convicted of offenses against the United States.” 28 C.F.R. § 0.96 (emphasis added). The Supreme Court has upheld this extensive administrative power. See, e.g., United States v. Wilson, 503 U.S. 329, 335 (1992) (“After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence.”).

The BOP has long and complicated internal program statements to help guide its calculation and implementation of federal sentences. But one need not be an expert in these policies to predict how a defendant’s federal sentence will be computed and enforced by the BOP when the state holds primary custody. Assuming a silent federal judgment (no noted preference for the state and federal prison terms to run concurrent or consecutive), the BOP will not start a secondary federal sentence until the primary state sentence has expired, and any credit for time served used by the state sentence will not be credited to the federal sentence. Thus, only when released from their state sentence will defendants start the first day of their federal sentence unless their federal judge has expressed a clear intent for a concurrent sentence.

In short, a defendant’s federal judgment is final, and the BOP, informed by federal statutes and its own internal program statements, decides how a defendant’s federal sentence will be served. A state court should not expect that a federal judge can modify its judgment, and a state court should not expect that its judgment will affect the BOP’s calculation and enforcement of a defendant’s federal sentence.

A Basic Example

Because the calculation and enforcement of federal sentences are unique, and because so many federal defendants face dueling state and federal sentences, it is useful to work through some common scenarios, and pitfalls. But first, a basic example is useful to apply the two rules we just learned above.

In one possible timeline, the state’s primary custody of the defendant involves this progression of events: state arrest; state bail; federal arrest; federal bail; state revocation of bail; federal writ; federal conviction and sentencing; state conviction and sentencing. Consider first our two rules. Rule #1—Just because the federal government sentenced the defendant first does not mean it achieved primary custody. The sovereign who first detained the defendant without relinquishing jurisdiction is the state when it re-arrested and held the defendant. The state is the primary custodian, and the defendant will serve the state sentence first. Rule #2—The federal judge cannot go back and change its judgment based on the later state judgment, and the BOP will not factor in the state judgment when it calculates and enforces the defendant’s federal sentence.

The danger here is to ignore the writ. The writ signals to everyone in federal court it may not have primary jurisdiction over the defendant. A quick review of the defendant’s state case reveals that the defendant is being continuously held by the state and is thus only being borrowed by the federal courts via the writ. Knowing this is key, because if the federal judge wants to ensure its sentence runs concurrent to the anticipated state sentence, it must do so explicitly on its written judgment, and the BOP will seek to honor the federal judge’s intent. Otherwise, even a silent judgment will become a de facto consecutive sentence based on the BOP’s likely reading of federal law and its own internal program statements.

A de facto consecutive sentence means the defendant will first serve the state sentence in state prison, and only upon its expiration be transferred to the BOP to serve day one of the federal sentence with no credit for any time served that had been granted to the state sentence. Even favorable language in the state judgment cannot prevent this federal outcome: (1) The defendant is a primary state inmate and serves the state sentence first in state prison; (2) only upon completion of the state sentence is the defendant received into federal custody; (3) if the BOP determines that the federal judge intended a concurrent sentence, it will seek to honor that intent, but a silent federal judgment is construed as a de facto consecutive sentence; and (4) the defendant receives credit only for the time served from the federal arrest until the federal bail, and any time used by the state sentence will not be credited to the federal sentence.

Reversing our basic timeline’s progression of events gives the federal government primary custody of the defendant: state arrest; state bail; federal arrest; federal detention; state revocation of bail; federal conviction and sentencing; state writ; state conviction and sentencing. Consider again our two rules. Rule #1—Just because the federal government sentenced the defendant first does not mean it achieved primary custody. The reason the federal government has primary custody here is that it was the sovereign who first detained and held the defendant. The defendant will serve the federal sentence first. Rule #2—The federal judge cannot go back and change its judgment based on the later state judgment, and the BOP will not factor in the state judgment when it calculates and enforces the defendant’s federal sentence.

Here, the state court must operate as the secondary custodian and understand what that might mean under state law. In so doing, a state judge can make better decisions about the appropriate length of sentence, and the concurrent or consecutive nature of the sentence, knowing its judgment will be complied with by state authorities after the expiration of the federal prison term. Under federal law, (1) the defendant is a primary federal inmate and serves the federal sentence first in federal prison; (2) the defendant receives full credit for all the time served from federal arrest until the completion of the federal sentence; (3) concurrency is left to the state authorities, who often permit the use of credit for time served from the federal sentence toward service of the defendant’s state sentence; and (4) if the federal judge imposed its sentence consecutive to the anticipated state sentence, the BOP would seek to honor that request.

Common Scenarios and Pitfalls

While it is impossible to anticipate and discuss every real-world example, we can look at a few common scenarios and pitfalls to see how this all plays out. Let’s begin with a hypothetical crime and work on a few questions that could arise. Imagine that a man with several prior felony convictions burglarizes a gas station with a gun. He is arrested, charged, and held by the state for armed burglary. Meanwhile, a federal grand jury indicts the man for being a felon in possession of the same firearm used in the gas station burglary. The man is convicted in state court and sentenced to 15 years’ imprisonment. The federal judge uses a writ of habeas corpus ad prosequendum to borrow the man from state custody. The man resolves the federal case by entering a guilty plea and is sentenced to a mandatory minimum 15 years’ imprisonment as an armed career criminal.

How Much Total Time Is the Man Going to Serve?

This situation is like the first basic timeline above where the state has primary custody of the defendant. So the same conclusions apply here, and thus the answer is 30 years, unless the federal judge expressed a clear intent in the court’s written judgment that its 15-year sentence run concurrent to the 15-year state sentence, which the BOP would then attempt to honor. If the man was instead arrested, charged, and held by the federal government first for the felon-in-possession case, the situation would be like the basic timeline above where the federal government was the primary custodian. There, whether the man serves only 15 years in federal prison or up to 30 years between federal and state prisons depends on the state judgment and state law.

Does It Matter That the State and Federal Cases Are Related?

In federal court, yes, if the state case is “relevant conduct” as defined under section 1B1.3 of the US Sentencing Guidelines (U.S.S.G.)—a long provision describing when acts or omissions of a defendant are relevant to the counts of conviction in a federal indictment. As in the first basic timeline above, the state is the primary custodian, and the same conclusions apply here. But the difference between this real-world example and the first basic timeline above is that the state and federal cases are related under U.S.S.G. § 1B1.3. Section 5G1.3(b) and note 2(c) of the U.S.S.G. thus permits a federal judge to adjust the term of federal prison to account for the time already served on the related state sentence and allows the judge to run the remainder of the federal sentence concurrent to the undischarged state sentence. See United States v. Henry, 1 F.4th 1315, 1328 (11th Cir. 2021) (Pryor, W., dissenting) (disagreeing with the majority’s opinion that § 5G1.3(b) is not mandatory). The defendant must be able to show that the federal offense conduct is relevant to the state offense conduct and that the BOP will not give credit for the state sentence. The wording on the federal judgment is crucial because it is what the BOP will use to accomplish the intent of the federal judge under U.S.S.G. § 5G1.3.

But What If the Related State Sentence Is Only Anticipated?

This question implies that in our example, the federal government borrowed the defendant via a writ before the related state sentence was imposed. If that occurred, section 5G1.3(c) and note 3 of the U.S.S.G. would allow a federal judge to run the federal sentence concurrent to the anticipated related state sentence. See also Setser v. United States, 566 U.S. 231, 236 (2012); 18 U.S.C. §§ 3584(a), 3553(a); U.S.S.G. § 5G1.3, comment (Background). Once the defendant was to show that the federal offense conduct is relevant to the state offense conduct and that the state has primary custody, the federal judge would have discretion to impose a concurrent sentence.

But What If the Related State Sentence Is Already Expired?

This question implies that in our example, the federal government either received the defendant into its custody upon the expiration of the state sentence or the state sentence expired while the federal government was borrowing the defendant via a writ. Either way, primary custody would shift from the state to the federal government, and as in the second basic timeline above, the defendant would serve the federal sentence immediately and receive credit for time served from the time the state sentence expired forward. Also, under section 5G1.3 note 5 of the U.S.S.G., the federal judge would have discretion to downward depart from the guidelines range to account for the discharged related state sentence. The defendant would have to make certain showings—essentially that had the related state sentence been undischarged, an adjustment would have been appropriate. See also U.S.S.G. § 5K2.23; 18 U.S.C. § 3553(a). And again, once the federal judgment reflects the federal judge’s intent, the BOP will try to accomplish that intent in its calculation and enforcement of the federal sentence.

Can an Unintended Consecutive Sentence Be Modified?

This question implies that, in our example, one or both judges intended for a 15-year total sentence, but a 30-year total sentence happened anyway. This is usually because everyone (attorneys and judges) assumed the defendant’s terms would run concurrently without stating it, not realizing how primary custody would affect the dual sentences. This is an all-too-common pitfall, and one much more easily fixed in state court.

Because of the finality of federal judgments and the authority of the BOP in construing federal law to compute and enforce federal sentences, it is very difficult for a defendant to modify an unintentional consecutive federal prison term through federal processes. So, if a state judge wants to fix an unintended consecutive state and federal sentence, it is far easier for the state judge to modify or amend their own judgment to accomplish this goal. And one way to do so is to impose a short, retroactive, day-certain time-served judgment (such as 30 days jail with 30 days’ credit for time served). This results in the release of the defendant from state custody and transfer to federal custody, when the defendant will immediately begin service of the federal sentence less the days credited to the state sentence. The state judge can thus ensure that the defendant is serving the intended total time (via the federal judgment) in federal custody.

Another more complicated and less successful option is through a nunc pro tunc designation of the state facility as the place of service of federal sentence by the BOP under 18 U.S.C. § 3621(b). See also BOP Program Statement 5160.05. Indeed, the BOP must consider a defendant’s pro se request under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). Typically, when the BOP receives such a request, it will turn to the defendant’s federal judge and prosecutor for their positions on such a designation. If either opposes the designation, the BOP will often deny the defendant’s request, and the defendant may appeal the decision. The state solution is thus the preferred one for a more streamlined and judicially economical result.

Achieving Primary Federal Custody

As these rules and examples illustrate, there are several reasons attorneys, judges, and defendants may wish to achieve primary federal jurisdiction.

• The state wants a concurrent sentence it controls. This is possible only when it obtains custody after the federal sentence is complete, at which point the state can honor its judge’s pronouncement of concurrency by releasing the defendant or granting time served for the time spent in federal custody.
• The state wants the federal government to pay for the incarceration of the defendant. If the state has primary custody, the defendant will do all state time in state prison, paid for with state dollars. If the federal government has primary custody, the defendant will serve the federal time first, paid for with federal dollars.
• The defendant needs rehabilitative services, medical care, or job training better provided by the BOP, and unrestrained by a state detainer, which can restrict the availability of programming and work for federal inmates.

Achieving primary federal jurisdiction can be simple. When the federal government is not the primary custodian, such as in our first basic timeline above, attorneys and judges have two good options to ensure the federal government obtains primary jurisdiction. The first option is for the state to dismiss its case without prejudice. Upon the dismissal of the state case, custody shifts to the federal government. Once the federal conviction and sentencing have occurred, the state can reinstate charges, writ the defendant into its custody, and impose its sentence concurrent to the federal judgment. After the state sentencing is complete, the federal government will transport the defendant to the BOP. As a practice point, it is useful to keep the US Marshals aware of the state case status so defendants do not unnecessarily languish in local jails waiting for transport to the BOP.

The second option is for the state to release the defendant on their own recognizance. Much the same as the first method, here the state judge orders the defendant released from state custody to ensure they are transferred into primary federal custody. The state judge’s intent can even be stated on the release order. So long as the federal government has placed a hold or detainer on the defendant, the defendant will not be released, only transferred into the custody of the federal government as the primary custodian.

Either way, the state judge gets the case back after the federal sentence, so it can make better decisions about the appropriate length of sentence, and the concurrent or consecutive nature of the sentence, knowing its judgment will be complied with by state authorities after the expiration of the federal prison term. Sometimes, the length of the federal sentence will warrant a short, time-served state sentence to allow the defendant to serve their time solely in federal custody without the constraint of a state detainer. Other cases may warrant a concurrent but not coterminous state sentence, or some other variation.

Why This Matters

Primary jurisdiction is not just a relic of our federalist system, or an arcane path to state or federal control over a case. Custody issues have a concrete effect on the lives of criminal defendants. Identifying a primary custody issue can be the difference between one 15-year term of prison in the correctional system of choice and back-to-back terms totaling 30 years across state and federal correctional systems when no lawyer or judge intended for a consecutive sentence. Recognizing these issues at the outset of a case can also be the difference between negotiating a common plan between state and federal jurisdictions up front and complicated decisions involving nunc pro tunc actions years after sentences were imposed. And besides the human factor, successfully navigating primary custody issues in state and federal cases before mistakes occur preserves judicial economy, including the need for protracted pro se administrative and appellate actions years later.

Criminal practitioners should be able to flag primary custody problems through conventional due diligence—knowing their client arrived in the jurisdiction via a writ; meeting and talking to the client about other pending actions or sentences; exploring the possibility (or futility) of bail; investigating criminal history; and reviewing Presentence Investigation Reports or scoresheets, or engaging in similar sentencing preparation. Although not every case warrants a transfer of jurisdiction or a global sentencing plan, federal and state practitioners should be able to forge alliances to educate and advocate for a common goal when appropriate. Primary custody problems also have a way of resurfacing years later. Best practices dictate dealing with the potential jurisdictional issues at the front end of a case.

The judiciary is in a uniquely good position to help identify and tackle custody issues and should demand to have as much information as possible before sentences are imposed, ideally in every court, but especially in federal courts where judgments are nearly impossible to modify. The interaction between a state and federal sentence is a critical piece of the sentencing puzzle. Preferably, attorneys will alert the courts to these issues ahead of time, but judges may sua sponte raise the question when another jurisdiction’s case may interact with its sentence. This inquiry promotes consistency and fairness in sentencing and the integrity of the judicial process, and it also avoids needless post-judgment litigation. At bottom, the more judges know about primary jurisdiction, the better they can mold a specific sentence to the unique defendant before them while the case is ripe for disposition.

And finally, the more criminal defendants know about their potential exposure before making crucial decisions in their cases, the better. Imagine understanding you have dueling state and federal cases but being oblivious about how the two sentences will be calculated (until it happens), the meaning of “concurrent” (until it means consecutive), or where you will serve the time (until you are transported). Criminal defendants make exceedingly difficult decisions, often without an expectation of a known result, but this is one blind spot they need not have when deciding whether and when to accept a plea offer.

American lawyers have been grappling with issues of primary jurisdiction for over 200 years. Alexander Hamilton persuaded us to look at the state and national governments as “kindred systems,” “parts of ONE WHOLE” that could exist harmoniously. The Federalist No. 82, at 493 (Alexander Hamilton) (Clinton Rossiter ed., 1961). This bore out over the years as “a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure” developed between sovereigns. Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). Little has changed, and little is likely to change over the coming centuries. Understanding primary jurisdiction is thus a crucial piece of our criminal practice.