A judge says a lot of things during a sentencing. Two of them are really, really important.
First is the number of months in prison. “One hundred twenty” is a lot different from “a year and a day.”
Second is whether the sentence imposed for multiple offenses is “consecutive” or “concurrent.”
The Basics
Consecutive is bad. It means that sentences for the various crimes of conviction will be served one after another.
If you are convicted of one count of mail fraud, one count of wire fraud and one count of conspiracy and sentenced to 18 months on each one, then your total prison sentence is 54 months, if the judge says they are consecutive sentences.
Stacked is a less formal way of saying “consecutive.” The sentences for each crime of conviction are stacked on top of each other. (If you were wondering why there is a picture of pancakes with this post, this is why.)
Concurrent is good. It means that the sentences for the various crimes of conviction will be served at the same time. For the example above, you would serve 18 months total.
Who Decides If the Sentence is Concurrent or Consecutive?
That’s easy. The judge does. (Usually.)
There is a statute that governs this issue: 18 U.S.C. § 3584.
(I had no idea this statute even existed before researching this blog post. You learn something new every day.)
Here’s what the relevant part of § 3584 says:
(a) Imposition of Concurrent or Consecutive Terms.—
If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
(b) Factors To Be Considered in Imposing Concurrent or Consecutive Terms.—
The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).
There are 4 key parts of the statute for a white-collar sentencing:
- Sentences “may” run consecutively or concurrently. This gives the judge discretion to decide this element in most cases.
- The default rule is concurrent sentences. The default rule applies unless (a) the judge specifically orders otherwise, or (b) the statute of conviction requires consecutive sentences (more about that below).
- If you are convicted of attempting to commit a crime and committing that crime, then the sentencing terms may not run consecutively as long as the crime was “the sole objective of the attempt.” In other words, sentences for attempted murder and murder may not be consecutive.
- There is a little guidance for judges to determine if the sentences should run consecutively or concurrently—a reference back to 3553(a). That is the statute that is used to determine the sentence anyway, so no new analysis is necessary.
The Sentencing Guidelines
The Sentencing Guidelines offer guidance about how to handle multiple counts of conviction. It generally mirrors § 3584.
(a) Except [for Career Offenders], the sentence to be imposed on a count for which the statute (1) specifies a term of imprisonment to be imposed; and (2) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment, shall be determined by that statute and imposed independently.
(b) For all counts not covered by subsection (a), the court shall determine the total punishment and shall impose that total punishment on each such count, except to the extent otherwise required by law.
(c) If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.
(d) If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.
The key sections are (b) and (c), since that will cover most white-collar sentencings. There is usually not a mandatory minimum for these crimes, nor do they usually require consecutive sentences (but see below for an important—and common—exception). The Guidelines provide that as long as the underlying statutes do not require consecutive sentences, then the judge should sentence the defendant to concurrent sentences.
Does This Come Up in Plea Deals?
Yes, you can negotiate a plea deal to effectively agree to concurrent sentences, based on the Guideline range.
There is a provision of the Guidelines (§ 3D1.2) that allows for “grouping” of “Closely Related Counts.” “Closely related” means that they caused “substantially the same harm.”
In the plea agreement, you can agree that the multiple offenses of conviction are “closely related” for the purposes of this section. This means that only one guideline range is calculated and effectively means there is a concurrent sentence.
The Guidelines do exclude some offenses from the Closely Related Counts, such as blackmail, so you have to pay attention to the Guidelines to make sure you reach the right agreement with the government.
The language of the plea agreement will say something like, “The Government and the defendant agree that Counts 1 and 2 are closely related counts for purposes of U.S.S.G. § 3D1.2.”
The Most Common White-Collar Crime Exception: Aggravated Identity Theft
As I said above, most white-collar crimes do not have mandatory minimums nor do they required stacked/consecutive sentences.
The most common exception is Aggravated Identity Theft, 18 U.S.C. § 1028A.
This statute has a mandatory minimum sentence of 2 years and requires consecutive sentences. So, if you are convicted of 5 counts, the judge must sentence you to 10 years in prison.
This sentencing mandate is critical to keep in mind if the prosecutor is threatening identity theft charges. Often, multiple counts do not make a difference in sentencing (such as 10 counts of mail fraud, that were 10 mailings related to the same scheme). Here, however, the number of counts is determinative of the sentence. Pre-indictment negotiations should be aimed towards limiting the number of charges.
LAWYERS: TAKE NOTES AT SENTENCING
You can mark this one down in the list of Things I’m Telling You So You Don’t Make the Same Mistake I Did.
At a sentencing in federal court a few years ago, I was standing in court with my client. The judge handed down the sentence on the two counts: 18 months on each count, to be served concurrently. I heard “concurrently” but I wasn’t taking notes at the time.
My client heard “consecutively.”
We had a very scary hour in between when the sentencing ended and when we were in the probation officer’s office dealing with the logistics. At that point, I asked the probation officer to check the sentence and she confirmed that it was indeed “concurrent.”
Take notes during sentencing!