Enforcing Concurrent Sentences

33 Pages Posted: 9 Mar 2021 Last revised: 2 May 2022

Date Written: March 1, 2021


This Article is the first to take on the following two questions: First, where in the mélange of legislative, executive, and judicial powers that constitutes the law of sentencing is the last word on how much time a prisoner will serve when subject to unexpired terms imposed at different times by state and federal courts? Embedded in that first question is the second: may a convict who presents himself to federal prison authorities to serve his federal time be turned away on the ground that he has not yet completed his state time on another offense?

In 2015, I began litigating on behalf of Jose Alberto Antonio, who after finishing eight years of state time in Lancaster, California, was transferred on January 11, 2021 to a federal prison in Los Angeles to serve five of what was originally designed to be 9.3 years of federal time. Together, Antonio and I repeatedly sought to enforce the state sentence imposed on him by a state trial court at a June 2016 re-sentencing for a March 2013 robbery. That June 2016 re-sentencing judge structured Antonio’s federal prison term for a drug conspiracy – by then pronounced but yet to commence – and his state prison term to run concurrently, meaning he could serve no more than the length of the longer term (9.3 years for the federal offense). But there seemed nothing we could do to prevent the state and federal terms from running consecutively, meaning the second term would not commence until the first had expired (17.3 years total, the sum of 9.3 years on the federal offense plus eight years on the state offense), though neither the state nor the federal court had structured them to so run. The reason the sentences would run consecutively? Because the Assistant United States Attorney who had negotiated Antonio’s federal plea wanted them to, a decision to which the Federal Bureau of Prisons (“BOP”) by its own standards defers.

As a recurring basis of litigation on which both the ultimate length of countless prison terms and the division of authority between state and federal courts depend, one would think the legal academy would have meditated on this serious question of federalism/comity/dual sovereignty. But it hasn’t. The scant pertinent literature, like the only relevant Supreme Court ruling, addresses Antonio’s mirror or reverse image, whereby a federal court structures a federal term to run consecutively to an anticipated state term. There is a smattering of lower-court rulings on point, the implications of which have somehow remained un-illuminated.

People v. Antonio is therefore an apt occasion to burrow down into a peculiar rift in which junior bureaucrats of the Department of Justice can, perhaps without legal justification, force concurrent sentences to run consecutively. As a tract on federalism, this chronological study of the protracted litigation of Jose Antonio identifies a profound sentencing snag that owes to an excessive though perhaps correctible deference to executive branch officials.

Suggested Citation

Yeager, Daniel B., Enforcing Concurrent Sentences (March 1, 2021). California Western Law Review, Vol. 58, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=3799265 or http://dx.doi.org/10.2139/ssrn.3799265

Daniel B. Yeager (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619-525-1456 (Phone)
619-696-9999 (Fax)

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