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May 19, 2000


The opinion of the court was delivered by: Katz, Senior District Judge


Before the court is defendant's motion for a downward departure. Because denial of the motion would functionally extend the defendant's unrelated state court sentence far past the time the Commonwealth of Pennsylvania has decided is appropriate, the court will grant the motion.


On February 10, 2000, Ryan Anderson pled guilty before this court to one count of making a false statement in connection with information required to be kept by a federal firearms licensee and one count of being a convicted felon in possession of a firearm. In the absence of a departure, the Sentencing Guidelines establish a base offense level of 19 and a criminal history category of III for these offenses, resulting in a range of 37 to 46 months imprisonment. The defendant agrees with these calculations.

The request for a departure pertains to facts that predate the instant offense. On October 16, 1997, Ryan Anderson was arrested and charged with possession with intent to deliver a controlled substance in the Lackawanna County Court of Common Pleas. On March 9, 1998, he pled guilty to these charges, but he did not appear for sentencing and was fugitive until March 17, 1999, when Anderson was arrested on the present firearms charges. Although ATF agents were involved in that March 17 arrest, Anderson was held in state custody and, on April 6, 1999, he was returned to prison for failure to appear for sentencing in the 1997 drug case. On April 27, 1999, he was sentenced to four months to three years for the controlled substance offense. On September 7, 1999, Anderson was granted parole; however, he could not actually be paroled until he paid $30.00 in court costs and submitted a urine sample. Before he was able to perform these tasks, he was taken into federal custody pursuant to a writ on October 8, 1999, and arraigned on October 25, 1999. Although he can apparently pay the $30.00 while in federal custody, he cannot submit the urine sample until he is back in state custody. Consequently, notwithstanding the grant of parole, Anderson's state sentence is ongoing because of his inability to comply with the administrative requirements that would permit his "release." The state sentence will not expire until March 6, 2002.


The defendant requests a departure because all of the time he has served thus far in federal custody has been credited towards his technically continuing state sentence, even though he was granted parole prior to the commencement of federal custody. This is because the federal Bureau of Prisons does not give credit for imprisonment time if it has already been credited towards another sentence. See 18 U.S.C. § 3585 (a), (b)(2). From the Bureau of Prison's perspective, Anderson's federal sentence will not commence until at least May 19, 2000, the date sentence was imposed, notwithstanding the long period of time he has already spent in federal custody. As the defendant points out, the practical effect is that his state sentence has been extended for approximately seven months beyond the date on which he was approved for parole, and he has not received any federal credit for that time.

The court agrees that this is a circumstance that justifies a departure pursuant to U.S.S.G. § 5G1.3, which addresses the question of whether a sentence should be consecutive to or concurrent with an undischarged term of imprisonment. Subsection (a) requires that sentences be consecutive in some circumstances; subsection (b) requires that sentences be concurrent in other circumstances. See U.S.S.G. § 5G1.3 (a)-(b).*fn1 As neither of these sections applies, the court turns to the policy statement found in subsection (C): "In any other case, the sentence of the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3 (c). Application note three explains that when applying subsection (c),

the court may impose a sentence concurrently, partially concurrently, or consecutively. To achieve a reasonable punishment and avoid unwarranted disparity, the court should consider the factors set forth in 18 U.S.C. § 3584*fn2 (referencing 18 U.S.C. § 3553 (a)) and be cognizant of:
(a) the type (e.g. determinate, indeterminate/parolable) and length of the prior undischarged sentence;
(b) the time served on the undischarged sentence and the time likely to be served before release;
(c) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and
(d) any other circumstance relevant to the determination of an appropriate sentence for ...

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