We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
POWER 5(G1.3)
We’re in the middle of a messy college football season, and we all know who the Power Five used to be. They’re now just the Power Four, but I’m old school, and I need “Power Five” as a hook for today’s post.
In the sentencing world, Sentencing Guideline 5G1.3 is a powerful if sleepy Guideline, one that delivers sentencing authority and flexibility to a district court to which many judges seem oblivious.
It often happens that defendants will be charged with state offenses and later federal offenses arising from the same incident. I one chad a guy who picked up four Arkansas convictions for methamphetamine possession. After he started serving his state sentences, federal authorities charged him in a meth conspiracy that swept in all of the conduct that underlay the state convictions.
By the time he got to federal sentencing, he had served 72 months for his state offenses. However, under federal sentencing statutes and the Guidelines, none of that state time would otherwise count against his federal sentence obligation.
That’s where § 5G1.3 comes in, permitting a federal court to adjust the federal sentence to account for prior state time served in a related case.
In the case I was working on, the judge incorrectly said that he couldn’t adjust anything in the 144-month sentence he imposed to account for the time the defendant had already served. The mysteries of § 5G1.3 were beyond him.
The same thing happened to David Koan. David pled guilty to a child pornography charge. By the time his federal sentencing came around, he had already spent 40 months in state prison for a conviction arising from the same incident.
At sentencing, defense counsel asked the court to adjust David’s sentence to account for the time he had already done in the state. The district court refused, holding that it lacked the ability to do so. The judge told David to take his request up with BOP (probably knowing how futile that exercise would turn out).
David got a federal sentence of 720 months to run concurrently with his state sentence yet to be served (but he got no credit for time already served).
David appealed, and last week the 5th Circuit reversed his sentence.
Guideline 5G1.3(b) directs that “the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment…” After the district court stated that it did not have the power to award credit for time served, David’s lawyer responded that the court could either “backdate” or “adjust the sentence accordingly” to account for the time served. The Circuit said that this suggestion was good enough to preserve the objection.
While a district court cannot award credit for time served under 18 USC § 3585(b), it nevertheless “retains residual authority to reduce defendants’ sentences based on previous time served related to their offenses… That is, § 5G1.3(b) permits a court to adjust a sentence if the defendant has served time on a certain undischarged (i.e., incomplete) term of imprisonment as long as the time previously served must have “resulted from another offense that is relevant conduct to the instant offense,” and the previous time served “will not be credited to the federal sentence by the Bureau of Prisons… When those two criteria are met, § 5G1.3(b) instructs the court to reduce the sentence for time served and impose the sentence to run concurrently to the remainder of the undischarged term.”
The 5th said that “in sum, § 3585(b) governs the calculation of credit for time spent in custody prior to sentencing, which can be awarded exclusively by the Bureau of Prisons after sentencing, whereas § 5G1.3(b) governs sentence adjustments applied by a federal judge at the time of sentencing to account for time served on a related, undischarged term of imprisonment. Here, the district court erred when it seemingly conflated the two.”
United States v. Koan, Case No. 25-10850, 2026 U.S.App. LEXIS 30283 (5th Cir., October 2, 2026)
~ Thomas L. Root