How to Get Charges to Run Concurrently in Federal Court

To get charges to run concurrent in federal court, you have to work the default rule in your favor at every stage: shape how charges are filed, build concurrency into the plea, and put § 3553(a) reasons on the record at sentencing. Federal law under 18 U.S.C. § 3584 already treats multiple sentences imposed at the same proceeding as concurrent unless the judge says otherwise, but a new federal sentence imposed while another sentence is undischarged defaults to consecutive.¹ Which default you’re fighting decides everything about the strategy.

Know Which Default You’re Fighting

If all your counts are being sentenced together in one federal proceeding, concurrency is already the baseline. The job is defensive: make sure the judge doesn’t override it, and make sure no statute forces consecutive time on a particular count.

If you’re picking up a new federal sentence while already serving another sentence, whether state or federal, the default runs against you. Silence at sentencing means consecutive time for any offense committed on or after November 1, 1987.¹ You need the judge to affirmatively order concurrency, on the record, in the written judgment. Nothing less will do.

Counts Where Concurrency Isn’t Available

Some federal statutes take the decision away from the judge. Before spending energy on a concurrency argument, check whether any count carries a mandatory consecutive term.

The most common is 18 U.S.C. § 924(c), covering the use, carrying, or possession of a firearm during a crime of violence or a drug trafficking offense. Any sentence imposed under that section is barred by statute from running concurrently with any other sentence, including the sentence for the underlying crime.²

Aggravated identity theft under 18 U.S.C. § 1028A works the same way. A conviction adds a mandatory two-year term that must run consecutively to the underlying felony, or five years if the underlying felony is terrorism-related. Multiple § 1028A convictions imposed at the same time can run concurrently with each other at the judge’s discretion, but nothing else.³

When a case includes one of these counts, the concurrency fight moves to the other counts, or to negotiating those specific counts out of the case entirely.

Start With the Prosecutor, Not the Judge

The shape of the charging document decides a lot before any judge sees the file. A single conspiracy count that sweeps in a course of conduct tends toward one sentence. Separate counts filed for each individual act within that same conduct create room for consecutive stacks.

Defense attorneys who engage before indictment, or during the charging phase, can sometimes influence how the case gets structured. Mitigating information delivered early, whether it’s cooperation, remorse, treatment records, or personal circumstances, can push a prosecutor toward consolidating counts or agreeing not to seek consecutive terms.

Prosecutorial posture at sentencing also matters. In many federal proceedings the government makes a sentencing recommendation, and that recommendation carries weight. A prosecutor who supports concurrent sentencing on the record makes the defense job much easier. A prosecutor who opposes it forces the defense to overcome that position on top of the statutory default.

Lock Concurrency Into the Plea Agreement

Most concurrent-sentence outcomes are actually decided at the plea stage, not the hearing. Raising concurrency in the earliest plea discussions, and getting it in writing, is worth more than any speech at sentencing.

Prosecutors may agree to recommend concurrent sentences in exchange for a guilty plea, cooperation, or testimony against co-defendants. The defense case for concurrency rests on the same themes that later persuade a judge: the interconnected nature of the charges, the absence of prior record, the nonviolent character of the offenses.

Rule 11(c)(1)(C) Agreements

A standard plea deal includes a sentencing recommendation the judge can take or leave. A Rule 11(c)(1)(C) agreement is different: the parties agree to a specific sentence or range, and once the judge accepts the plea, the court is bound by it.⁴ If the agreement calls for concurrent sentences, the judge cannot later impose consecutive terms without rejecting the plea outright.

The tradeoff is scrutiny. Judges look harder at (C) agreements because they surrender discretion. A judge who finds the proposed sentence too lenient can reject the plea and send everyone back to negotiation. These agreements land best when the proposed sentence tracks the guidelines range and the concurrency request is supported by clear facts.

Use the Presentence Report

Before sentencing, a probation officer prepares a presentence investigation report that calculates the offense level and criminal history category, identifies the guidelines range, and flags factors relevant to sentence type and length. It also covers personal history, financial condition, and anything else bearing on sentencing or rehabilitation.⁵

This document shapes the judge’s starting point. Waiting for the hearing to argue concurrency is usually too late. Engage the probation officer during the investigation, supply mitigating material early, and object in writing to any error in the draft before it reaches the judge. A report that already treats the counts as interconnected, or that highlights a clean history, does quiet work no closing argument can match.

Give the Judge Reasons Under § 3553(a)

Outside the mandatory-consecutive statutes, the judge has broad discretion. Discretion still runs through the checklist in 18 U.S.C. § 3553(a): the nature of the offense, the defendant’s history, seriousness, deterrence, public safety, available sentencing options, the guidelines range, and avoiding unwarranted disparities among similarly situated defendants.⁶ The strongest arguments for concurrent sentencing hook directly onto that list.

Interconnected offenses. When the counts arise from a single incident or a single course of conduct, concurrent sentencing avoids what amounts to double punishment for the same behavior. This is usually the most persuasive argument.
Criminal history. A first-time offender facing multiple counts from one event is an easier concurrency case than a defendant with a long record picking up new charges while on supervision.
Proportionality. The statute directs judges to impose a sentence sufficient, but not greater than necessary. If stacked consecutive terms would produce a total out of proportion to the actual harm, that language gives the judge room to run counts concurrently.⁶
Rehabilitation evidence. Completed treatment, education, steady employment, military service, and responsibility for dependents feed the personal-history and rehabilitation factors. Concrete proof outweighs promises.
Comparable cases. Sentences from the same district for similar conduct give the judge both a benchmark and cover for granting concurrency.

Guidelines § 5G1.3 When Another Sentence Is Already Running

When a defendant is sentenced while serving an undischarged term from another case, guideline § 5G1.3 tells the court how to handle it, including when to impose concurrent terms and how to adjust for time already served on overlapping conduct. Section 3584 gives the judge discretion; § 5G1.3 guides how to use it based on whether the prior sentence involved conduct that overlaps the current offense.⁷ Showing the factual overlap between cases is often the whole ballgame.

When a State Sentence Is Already Running

A federal judge can order a federal sentence to run concurrently with a state sentence the defendant is already serving. The mechanics run through the Bureau of Prisons. Under 18 U.S.C. § 3621(b), the BOP can designate any appropriate facility, including a state prison, as the place a federal sentence is served.⁸ When the federal court orders or recommends concurrent service, the BOP ordinarily implements it by designating the state institution for federal confinement, and the court’s intent is documented in the judgment with language stating that the federal sentence runs concurrently with the state sentence the defendant is presently serving.⁹

Two things follow from this. First, silence loses. If the federal judgment says nothing about concurrency, the federal sentence runs consecutively to the state term by default.¹ Ask on the record, even when it seems obvious. Second, the judgment language should say plainly that the federal sentence runs concurrently with the specific state sentence the defendant is serving, so the BOP has something clear to implement.

If Sentencing Has Already Happened

Post-conviction options for converting consecutive time to concurrent are narrow, and every one of them runs on a hard deadline.

Rule 35

Federal Rule of Criminal Procedure 35 lets a court correct a sentence that resulted from clear error, but only within 14 days of sentencing. After that, the only Rule 35 route is a government motion to reduce the sentence based on the defendant’s substantial assistance, generally within one year of sentencing, though later motions are permitted when the useful information wasn’t available or useful earlier.¹⁰ A defendant cannot file this motion on their own; the government has to initiate it.

28 U.S.C. § 2255

A federal prisoner who believes the sentence was imposed in violation of the Constitution, exceeded the statutory maximum, or is otherwise subject to collateral attack can move to vacate, set aside, or correct the sentence. The motion has a strict one-year deadline that generally starts running when the conviction becomes final.¹¹

Concurrent sentencing can come up under § 2255 when defense counsel never argued for it. Ineffective assistance requires showing both that counsel’s performance was objectively unreasonable and that it changed the outcome. Failing to advocate for concurrent sentencing when strong grounds existed falls within the recognized category of failure to seek a lesser sentence. These claims usually require showing what evidence or arguments counsel should have presented, which often means a declaration from the trial attorney explaining why concurrency wasn’t raised.

18 U.S.C. § 3582(c)

Federal law generally prohibits modifying a prison sentence after imposition, but § 3582(c) carves out exceptions. A court may reduce a sentence for extraordinary and compelling reasons, which can include serious medical conditions, advanced age after long incarceration, or other exceptional circumstances. The defendant must first exhaust administrative remedies through the BOP or wait 30 days after asking the BOP to file the motion.¹² A separate provision allows reduction when the Sentencing Commission retroactively lowers the applicable guidelines range.

These deadlines are jurisdictional walls, not suggestions. Miss the 14 days under Rule 35 or the one year under § 2255 and the issue is generally foreclosed regardless of its merit. Anyone in that position should calculate the deadlines first and build the argument from there.