Imposition of a Sentence on a Defendant Subject to an Undischarged Term

of Imprisonment or Anticipated State Term of Imprisonment (a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of im- prisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. (b) If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Rele- vant Conduct), the sentence for the instant offense shall be imposed as fol- lows: (1) the court shall adjust the sentence for any period of imprisonment al- ready served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concur- rently to the remainder of the undischarged term of imprisonment. (c) If subsection (a) does not apply, and a state term of imprisonment is antic- ipated to result from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprison- ment. (d) (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undis- charged term of imprisonment to achieve a reasonable punishment for the instant offense. Guidelines Manual (November 1, 2024) ║ 465 §5G1.3 Application Notes: Commentary 1. Consecutive Sentence ― Subsection (a) Cases. Under subsection (a), the court shall impose a consecutive sentence when the instant offense was committed while the defendant was serving an undischarged term of imprisonment or after sentencing for, but before commencing service of, such term of imprisonment. 2. Application of Subsection (b).— (A) In General.—Subsection (b) applies in cases in which all of the prior offense is relevant conduct to the instant offense under the provisions of subsection (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct). Cases in which only part of the prior offense is relevant conduct to the instant offense are covered under subsection (d). (B) Inapplicability of Subsection (b).—Subsection (b) does not apply in cases in which the prior offense was not relevant conduct to the instant offense under §1B1.3(a)(1), (a)(2), or (a)(3) (e.g., the prior offense is a prior conviction for which the defendant received an increase under §2L1.2 (Unlawfully Entering or Remaining in the United States), or the prior offense was a crime of violence for which the defendant received an increased base offense level under §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition)). (C) Imposition of Sentence.—If subsection (b) applies, and the court adjusts the sentence for a period of time already served, the court should note on the Judgment in a Criminal Case Order (i) the applicable subsection (e.g., §5G1.3(b)); (ii) the amount of time by which the sentence is being adjusted; (iii) the undischarged term of imprisonment for which the ad- justment is being given; and (iv) that the sentence imposed is a sentence reduction pursuant to §5G1.3(b) for a period of imprisonment that will not be credited by the Bureau of Prisons. (D) Example.—The following is an example in which subsection (b) applies and an adjustment to the sentence is appropriate: The defendant is convicted of a federal offense charging the sale of 90 grams of cocaine. Under §1B1.3, the defendant is held accountable for the sale of an additional 25 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state offense and has served six months on that sentence at the time of sentencing on the instant federal offense. The guideline range applicable to the defendant is 12–18 months (Chapter Two offense level of level 16 for sale of 115 grams of cocaine; 3 level reduction for acceptance of responsibility; final offense level of level 13; Criminal History Category I). The court deter- mines that a sentence of 13 months provides the appropriate total punishment. Because the defendant has already served six months on the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run con- currently with the three months remaining on the defendant’s state sentence, achieves this result. 3. Application of Subsection (c).—Subsection (c) applies to cases in which the federal court an- ticipates that, after the federal sentence is imposed, the defendant will be sentenced in state court and serve a state sentence before being transferred to federal custody for federal imprison- ment. In such a case, where the other offense is relevant conduct to the instant offense of convic- tion under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment. 466 ║ Guidelines Manual (November 1, 2024) §5G1.3 4. Application of Subsection (d).— (A) In General.—Under subsection (d), the court may impose a sentence concurrently, par- tially concurrently, or consecutively to the undischarged term of imprisonment. In order to achieve a reasonable incremental punishment for the instant offense and avoid unwar- ranted disparity, the court should consider the following: (i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); (ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undis- charged sentence; (iii) the time served on the undischarged sentence and the time likely to be served before release; (iv) 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 (v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. (B) Partially Concurrent Sentence.—In some cases under subsection (d), a partially con- current sentence may achieve most appropriately the desired result. To impose a partially concurrent sentence, the court may provide in the Judgment in a Criminal Case Order that the sentence for the instant offense shall commence on the earlier of (i) when the defendant is released from the prior undischarged sentence; or (ii) on a specified date. This order pro- vides for a fully consecutive sentence if the defendant is released on the undischarged term of imprisonment on or before the date specified in the order, and a partially concurrent sentence if the defendant is not released on the undischarged term of imprisonment by that date. (C) Undischarged Terms of Imprisonment Resulting from Revocations of Probation, Parole or Supervised Release.—Subsection (d) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked. Consistent with the policy set forth in Application Note 4 and subsection (f) of §7B1.3 (Revocation of Proba- tion or Supervised Release), the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation. (D) Complex Situations.—Occasionally, the court may be faced with a complex case in which a defendant may be subject to multiple undischarged terms of imprisonment that seemingly call for the application of different rules. In such a case, the court may exercise its discretion in accordance with subsection (d) to fashion a sentence of appropriate length and structure it to run in any appropriate manner to achieve a reasonable punishment for the instant offense. (E) Downward Departure.—Unlike subsection (b), subsection (d) does not authorize an ad- justment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment. However, in an extraordinary case involving an undischarged term of imprisonment under subsection (d), it may be appropriate for the court to downwardly depart. This may occur, for example, in a case in which the defendant has served a very substantial period of imprisonment on an undischarged term of impris- onment that resulted from conduct only partially within the relevant conduct for the instant Guidelines Manual (November 1, 2024) ║ 467 §5G1.3 offense. In such a case, a downward departure may be warranted to ensure that the com- bined punishment is not increased unduly by the fortuity and timing of separate prosecu- tions and sentencings. Nevertheless, it is intended that a departure pursuant to this appli- cation note result in a sentence that ensures a reasonable incremental punishment for the instant offense of conviction. To avoid confusion with the Bureau of Prisons’ exclusive authority provided under 18 U.S.C. § 3585(b) to grant credit for time served under certain circumstances, the Commission rec- ommends that any downward departure under this application note be clearly stated on the Judgment in a Criminal Case Order as a downward departure pursuant to §5G1.3(d), rather than as a credit for time served. 5. Downward Departure Provision.—In the case of a discharged term of imprisonment, a down- ward departure is not prohibited if the defendant (A) has completed serving a term of imprison- ment; and (B) subsection (b) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. See §5K2.23 (Discharged Terms of Imprisonment). Background: Federal courts generally “have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.” See Setser v. United States, 566 U.S. 231, 236 (2012); 18 U.S.C. § 3584(a). Federal courts also generally have discretion to order that the sentences they impose will run concurrently with or consecutively to other state sentences that are anticipated but not yet imposed. See Setser, 566 U.S. at 236. Exercise of that discretion, however, is predicated on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any appli- cable guidelines or policy statements issued by the Sentencing Commission. Historical Note Effective November 1, 1987. Amended effective November 1, 1989 (amendment 289); November 1, 1991 (amendment 385); November 1, 1992 (amendment 465); November 1, 1993 (amendment 494); November 1, 1995 (amendment 535); November 1, 2002 (amendment 645); November 1, 2003 (amendment 660); Novem- ber 1, 2010 (amendment 747); November 1, 2013 (amendment 776).; November 1, 2014 (amendments 782, 787, and 789); November 1, 2016 (amendment 802); November 1, 2023 (amendment 824). 468 ║ Guidelines Manual (November 1, 2024) Ch. 5 Pt. H PART H ― SPECIFIC OFFENDER CHARACTERISTICS Introductory Commentary This part addresses the relevance of certain specific offender characteristics in sentencing. The Sentencing Reform Act (the “Act”) contains several provisions regarding specific offender characteris- tics: First, the Act directs the Commission to ensure that the guidelines and policy statements “are entirely neutral” as to five characteristics – race, sex, national origin, creed, and socioeconomic status. See 28 U.S.C. § 994(d). Second, the Act directs the Commission to consider whether eleven specific offender characteris- tics, “among others”, have any relevance to the nature, extent, place of service, or other aspects of an appropriate sentence, and to take them into account in the guidelines and policy statements only to the extent that they do have relevance. See 28 U.S.C. § 994(d). Third, the Act directs the Commission to ensure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the “general inappropriateness” of considering five of those characteristics – education; vocational skills; em- ployment record; family ties and responsibilities; and community ties. See 28 U.S.C. § 994(e). Fourth, the Act also directs the sentencing court, in determining the particular sentence to be imposed, to consider, among other factors, “the history and characteristics of the defendant”. See 18 U.S.C. § 3553(a)(1). Specific offender characteristics are taken into account in the guidelines in several ways. One important specific offender characteristic is the defendant’s criminal history, see 28 U.S.C. § 994(d)(10), which is taken into account in the guidelines in Chapter Four (Criminal History and Criminal Livelihood). See §5H1.8 (Criminal History). Another specific offender characteristic in the guidelines is the degree of dependence upon criminal history for a livelihood, see 28 U.S.C. § 994(d)(11), which is taken into account in Chapter Four, Part B (Career Offenders and Criminal Livelihood). See §5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other specific offender characteris- tics are accounted for elsewhere in this manual. See, e.g., §§2C1.1(a)(1) and 2C1.2(a)(1) (providing alternative base offense levels if the defendant was a public official); 3B1.3 (Abuse of Position of Trust or Use of Special Skill); and 3E1.1 (Acceptance of Responsibility). The Supreme Court has emphasized that the advisory guideline system should “continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” See United States v. Booker, 543 U.S. 220, 264–65 (2005). Although the court must consider “the history and characteristics of the defendant” among other factors, see 18 U.S.C. § 3553(a), in order to avoid unwarranted sentenc- ing disparities the court should not give them excessive weight. Generally, the most appropriate use of specific offender characteristics is to consider them not as a reason for a sentence outside the appli- cable guideline range but for other reasons, such as in determining the sentence within the applicable guideline range, the type of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing Table, and various other aspects of an appropriate sentence. To avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, see 18 U.S.C. § 3553(a)(6), 28 U.S.C. § 991(b)(1)(B), the guideline range, which reflects the defendant’s criminal conduct and the defendant’s criminal history, should continue to be “the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007). Guidelines Manual (November 1, 2024) ║ 469 Ch. 5 Pt. H Accordingly, the purpose of this part is to provide sentencing courts with a framework for ad- dressing specific offender characteristics in a reasonably consistent manner. Using such a framework in a uniform manner will help “secure nationwide consistency,” see Gall v. United States, 552 U.S. 38, 49 (2007), “avoid unwarranted sentencing disparities,” see 28 U.S.C. § 991(b)(1)(B), 18 U.S.C. § 3553(a)(6), “provide certainty and fairness,” see 28 U.S.C. § 991(b)(1)(B), and “promote respect for the law,” see 18 U.S.C. § 3553(a)(2)(A). This part allocates specific offender characteristics into three general categories. In the first category are specific offender characteristics the consideration of which Congress has prohibited (e.g., §5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status)) or that the Commission has determined should be prohibited. In the second category are specific offender characteristics that Congress directed the Commis- sion to take into account in the guidelines only to the extent that they have relevance to sentencing. See 28 U.S.C. § 994(d). For some of these, the policy statements indicate that these characteristics may be relevant in determining whether a sentence outside the applicable guideline range is warranted (e.g., age; mental and emotional condition; physical condition). These characteristics may warrant a sentence outside the applicable guideline range if the characteristic, individually or in combination with other such characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. These specific offender characteristics also may be considered for other reasons, such as in determining the sentence within the applicable guideline range, the type of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing Table, and various other aspects of an appropriate sentence. In the third category are specific offender characteristics that Congress directed the Commission to ensure are reflected in the guidelines and policy statements as generally inappropriate in recom- mending a term of imprisonment or length of a term of imprisonment. See 28 U.S.C. § 994(e). The policy statements indicate that these characteristics are not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range. Unless expressly stated, this does not mean that the Commission views such circumstances as necessarily inappropriate to the de- termination of the sentence within the applicable guideline range, the type of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing Table, or various other aspects of an appropriate sentence (e.g., the appropriate conditions of probation or supervised release). Furthermore, although these circumstances are not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range, they may be relevant to this determination in exceptional cases. They also may be relevant if a combination of such circumstances makes the case an exceptional one, but only if each such circumstance is identified as an affirmative ground for departure and is present in the case to a substantial degree. See §5K2.0 (Grounds for Departure). As with the other provisions in this manual, these policy statements “are evolutionary in nature”. See Chapter One, Part A, Subpart 2 (Continuing Evolution and Role of the Guidelines); 28 U.S.C. § 994(o). The Commission expects, and the Sentencing Reform Act contemplates, that continuing re- search, experience, and analysis will result in modifications and revisions. The nature, extent, and significance of specific offender characteristics can involve a range of considerations. The Commission will continue to provide information to the courts on the relevance of specific offender characteristics in sentencing, as the Sentencing Reform Act contemplates. See, e.g., 28 U.S.C. § 995(a)(12)(A) (the Commission serves as a “clearinghouse and information cen- ter” on federal sentencing). Among other things, this may include information on the use of specific offender characteristics, individually and in combination, in determining the sentence to be imposed (including, where available, information on rates of use, criteria for use, and reasons for use); the relationship, if any, between specific offender characteristics and (A) the “forbidden factors” specified 470 ║ Guidelines Manual (November 1, 2024) in 28 U.S.C. § 994(d) and (B) the “discouraged factors” specified in 28 U.S.C. § 994(e); and the relation- ship, if any, between specific offender characteristics and the statutory purposes of sentencing. Historical Note Effective November 1, 1987. Amended effective November 1, 1990 (amendment 357); November 1, 1991 (amendment 386); November 1, 1994 (amendment 508); October 27, 2003 (amendment 651); November 1, 2010 (amendment 739); November 1, 2023 (amendment 824). §5H1.2