U.S. v. Reeks, CR-04-82-B-W.

• Decision Date: 07 July 2006
• Docket Number: No. CR-04-82-B-W.,CR-04-82-B-W.
• Citation: 441 F.Supp.2d 123
• Parties: UNITED STATES of America v. Christopher REEKS, Defendant.
• Court: U.S. District Court — District of Maine

Page 123

441 F.Supp.2d 123

UNITED STATES of America v. Christopher REEKS, Defendant.

No. CR-04-82-B-W.

United States District Court, D. Maine.

July 7, 2006.

Richard W. Hall, Hall & Lunn, Bangor, ME, for Defendant.

Nancy Torresen, Office of the U.S. Attorney, District of Maine, Bangor, ME, for United States of America.

ORDER ON GOVERNMENT'S MOTION TO CONTINUE SUPERVISED RELEASE PROCEEDINGS

WOODCOCK, District Judge.

Having filed a petition to revoke supervised release, the Government moves to continue Christopher Reeks' sentencing hearing until after the state court has sentenced Mr. Reeks on pending state charges arising out of the same incident. Mr. Reeks is in state, not federal custody and does not have a right to a prompt revocation hearing. Nevertheless, assuming this Court can continue the federal sentencing to a date beyond the state sentencing, this Court in its discretion, declines to do so. Federal-state comity and the need to avoid placing a judicial imprimatur over an overtly strategic, non-substantive motion, convince this Court to schedule federal sentencing in the ordinary course.

I. Statement of Facts

On August 30, 2005, this Court ordered Christopher Reeks to serve a three-year period of supervised release for the offense of possession of a firearm by a prohibited person. Judgment (Docket # 23). Earlier this year, the state of Maine arrested Mr. Reeks, charged him with new criminal conduct, and has retained custody of him. On February 7, 2006, the Government petitioned this Court to revoke his supervised release, based in part on allegations that he had violated its terms and conditions by engaging in the same new criminal conduct that formed the basis of the state charges. Pet. on Supervised Release (Docket # 25). At the behest of the Defendant, this Court set the Government's Petition for hearing on May 22, 2006. (Docket # s 28, 29).

Just before the hearing, the Government moved to continue on the ground that Mr. Reeks was about to be sentenced for state crimes comprising the same conduct underlying the petition for revocation. Mot. to Continue Supervised Release Proceedings (Docket # 33). The Government represented that Mr. Reeks had reached an agreement with an Assistant District Attorney by which the parties agreed to recommend to the state judge that any state sentence run concurrently with any federal sentence on the revocation. The Government urged a delay in any federal sentence so that this Court could consider the state sentence in determining the extent to which its sentence on the revocation should be concurrent with or consecutive to the state sentence. Mr. Reeks vociferously objected, arguing that this Court did not have the authority to continue a sentencing hearing, that he had the right to a prompt sentence on the revocation petition, that this Court did not have the authority to impose a consecutive sentence on a yet to be imposed state sentence, and that policy considerations dictate that this Court should not delay the orderly disposition of the revocation petition in order to impact the combined effect of the state and federal sentences. After conference of counsel, the Court continued the May 22, 2006 hearing and allowed the parties to brief the question of whether the hearing on the revocation petition should be continued until after the disposition of the state charges.

II. Discussion

Although framed as discreet legal issues, the controversy between the Government and Mr. Reeks centers around whether he is more or less likely to face additional federal time in jail because of the timing of the state and federal sentencings. Due to the nature of the state charges, the parties agree that Mr. Reeks will likely face substantially more time on the pending state charges than on the pending federal revocation petition.¹ However, if the Government is correct and Mr. Reeks has received a commitment from the Maine Assistant District Attorney to recommend to the state judge that the state sentence be entirely concurrent with the federal sentence, the state sentence would swallow the federal sentence.² To effect this arrangement, Mr. Reeks much prefers that this Court impose the federal sentence so that the state judge can place an imprimatur on this agreement. By contrast, the Government wishes to have Mr. Reeks sentenced first on the state charges so that when he appears for sentencing in federal court, this Court can impose a wholly consecutive, partially consecutive, or wholly concurrent federal sentence, based on its knowledge of the combined impact of both sentences.

Underlying the question of timing are the perceptions that if the state judge imposes a sentence first, the federal judge is more likely to impose some consecutive portion of the revocation sentence in accordance with Sentencing Commission policy, but if the state judge imposes a sentence second, the state judge is less likely to make any portion of the state sentence consecutive to the federal sentence, particularly if the state prosecutor and defense counsel recommend against it.

A. The Right to a Speedy Revocation Hearing

In support of his objection to the Government's motion to continue, Mr. Reeks claims he has a right to a speedy revocation hearing. See Def's Reply Mem. at 1 (Docket # 38). Because Mr. Reeks was taken into state custody and remains there, his argument is plainly incorrect. Rule 32.1's timeliness requirements do not obtain until the defendant is in federal custody.³ United States v. Chaklader, 987 F.2d 75, 77 (1st Cir.1993). See also United States v. Scott, No. 98-1191, 1999 WL 464993, *2, 1999 U.S.App. LEXIS 14623, *6 (2d Cir. June 29, 1999)(noting that the "point of the rule is to prevent people from being held indefinitely on mere allegations of supervised release violations"). Moreover, under Chaklader, he does not have a constitutional right to an adversarial hearing until "until he is taken into custody as a parole violator .. . ."⁴ Id. (citing Moody v. Daggett, 429 U.S. 78, 89, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976)). To the extent he has a right to a speedy revocation hearing, it does not become effective until he is in federal custody.

B. Whether This Court Has the Authority to Order That a Federal Sentence Run Consecutively to a State Sentence That Has Not Yet Been Imposed

One unresolved question is whether the timing of the state and federal sentencings matters. Either way, one court will be required to sentence Mr. Reeks before the imposition of the other sentence and just as the earlier sentencing court must impose its sentence without knowledge of the later sentence, the later sentencing court may (if it chooses) take into account the earlier sentence. But, if this Court is the earlier sentencing court, it may not have the authority to require its sentence be served consecutively to a yet to be imposed state sentence.

The statutory provision that addresses multiple sentences of imprisonment is 18 U.S.C. § 3584(a):

(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 ...

Id. Because the federal and state sentences are not going to be imposed "at the same time" and because he is not "already subject to an undischarged term of imprisonment", some courts have held that the statute does not permit a federal court to impose a consecutive sentence on a yet to be imposed state sentence.⁵ The genesis of this controversy may be traced to at least 1985, when in United States v. Eastman, 758 F.2d 1315 (9th Cir.1985), the Ninth Circuit raised the question. See Salley v. United States, 786 F.2d 546, 548-50 (2d Cir.1986)(Newman, J., concurring). Because California state law created a presumption of concurrent sentences, Eastman expressed comity concerns between federal and state jurisdictions, if the federal court imposed a sentence consecutive to the unimposed state sentence. 758 F.2d at 1318. Even though Eastman and Salley predated the enactment of 18 U.S.C. § 3584,⁶ subsequent case law has addressed both statutory construction and policy considerations.

In 1991, based on "the limited authority conferred by § 3584(a) and the continued vitality of our reasoning in Eastman", the Ninth Circuit again ruled that "a federal district court does not have the authority to direct that a federal sentence be served consecutive to a state sentence not yet imposed." United States v. Clayton, 927 F.2d 491, 493 (9th Cir.1991). Clayton reiterated the concern about "the infringement of state and defendant rights ...." Id. at 493. The Sixth and Seventh Circuits later joined the Ninth. See United States v. Quintero, 157 F.3d 1038, 1039-41 (6th Cir.1998); Romandine v. United States, 206 F.3d 731, 737-39 (7th Cir. 2000).⁷

The Fifth, Eighth, Tenth and Eleventh Circuits have ruled otherwise. See United States v. Hernandez, 234 F.3d 252, 256 (5th Cir.2000)(citing United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991)); United States v. Sumlin, 317 F.3d 780, 782 (8th Cir.2003)(citing United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001)); United States v. Williams, 46 F.3d 57, 58-59 (10th Cir.1995); United States v. Ballard, 6 F.3d 1502, 1510 (11th Cir.1993).⁸ See also Note: The Sentences That Bind (The States), 103 Colum. L.Rev. 969 (2003).⁹ There is no First Circuit case directly on point.¹⁰ In the context of this case, it is not necessary to resolve this issue; nevertheless, the courts' discussions of comity illuminate this Court's evaluation of the same concerns here.

C. Whether This Court Should Grant Mr. Reeks a Hearing and Impose Sentence Before the Imposition of the State Sentence

1. The Federal Interest

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