                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-4194

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

H ECTOR C RUZ,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 06 CR 922-11—Elaine E. Bucklo, Judge.



   A RGUED JANUARY 26, 2010—D ECIDED F EBRUARY 11, 2010




  Before B AUER, P OSNER, and K ANNE, Circuit Judges.
  P OSNER, Circuit Judge. Hector Cruz challenges his
10-year mandatory-minimum sentence for conspiring
to sell illegal drugs. 21 U.S.C. § 841(b)(1)(A). He had
previously been convicted in an Illinois state court of a
state drug offense that the parties agree was “relevant con-
duct” in the federal prosecution, relevant conduct being
defined as actions “that were part of the same course
of conduct or common scheme or plan as the offense of
2                                               No. 08-4194

conviction.” U.S.S.G. § 1B1.3(a)(2). Although he was
released (on parole) from state prison before being sen-
tenced for the federal offense, he argues that the 18 months
he served in state prison should be deducted from his
10-year federal sentence.
  The government agrees with Cruz and has confessed
error on the district court. We do not agree; nor do
federal prosecutors in other districts. See United States v.
Ramirez, 252 F.3d 516, 518 (1st Cir. 2001); Brief for the
United States in United States v. Wint, No. 04-4307 (2d Cir.
July 25, 2005), 2005 WL 3948487, at *30-31. A defendant
may be given a sentence below a statutory minimum
only if he either has rendered substantial assistance to
the government or satisfies specified criteria designed to
mitigate a harsh sentence for a drug offense. 18 U.S.C.
§§ 3553(e), (f). Neither ground is available to Cruz.
  But when a defendant is convicted of two or more
crimes arising from the same course of conduct, the judge
may (with immaterial exceptions) impose concurrent
sentences; if the sentences are imposed by different
judges, the later-sentencing judge can impose a con-
current sentence. 18 U.S.C. § 3584. (On the complexities
involved in concurrent federal and state prison sen-
tences, unnecessary to address in this case, see Romandine
v. United States, 206 F.3d 731, 737-39 (7th Cir. 2000).) The
district judge could have imposed a concurrent sentence
in this case had Cruz not already been released from
state custody. But he had; and although he was paroled
rather than released unconditionally, his state sentence
was “discharged” for purposes of deciding whether the
No. 08-4194                                                3

federal judge could impose a concurrent sentence; and
thus the judge could not. United States v. Pray, 373 F.3d 358
(3d Cir. 2004), and cases cited there; see also Prewitt v.
United States, 83 F.3d 812, 817-18 (7th Cir. 1996).
  If while Cruz still had 18 months to serve on his state
sentence he had been sentenced on the federal charge,
the district judge could have made the federal sentence
run concurrently with the state sentence rather than
begin when he completed that sentence. And then
instead of facing imprisonment for a total of 10 years and
18 months he would be facing imprisonment for only
10 years. But since he had finished serving his state
sentence when he received the federal sentence, there
was no sentence to make his federal sentence concur-
rent with. What he is seeking is not a concurrent sen-
tence but a sentencing reduction on account of a sen-
tence previously served.
  The government’s confession of error is based on an
excessively broad interpretation of our decision in
United States v. Ross, 219 F.3d 592 (7th Cir. 2000). The
district judge in that case had made the defendant’s
sentence run concurrently with a state sentence for
related conduct. He had served 34 months of his state
sentence and we held that the judge could deduct that
number of months from the federal sentence as long as
the combined length of the state and federal prison sen-
tences was not less than the federal statutory minimum.
  The federal sentence was for a gun offense, in violation
of 18 U.S.C. § 924, which provides that certain violators
“shall be imprisoned . . . not less than fifteen years,” id.,
4                                               No. 08-4194

§ 924(e)(1), and we pointed out that “the statute does not
specify any particular way in which that imprisonment
should be achieved.” 219 F.3d at 595. The statute under
which Cruz was sentenced provides in contrast that the
offender “shall be sentenced to a term of imprisonment
which may not be less than 10 years.” 21 U.S.C.
§ 841(b)(1)(A) (emphasis added). The language does not
permit a shorter sentence to be imposed unless one of
the exceptions in 18 U.S.C. §§ 3553(e) and (f) is available.
  A further distinction between this case and Ross is that
Ross’s state prison term had not been fully served (dis-
charged). The federal sentencing guidelines, which when
Ross was decided were mandatory, “specif[ied] how
undischarged terms of imprisonment should be taken
into account to achieve the correct result,” 219 F.3d at 595;
see U.S.S.G. § 5G1.3(b)—namely by deduction of time
served in prison pursuant to the state sentence. Applica-
tion Note 2 to the guidelines section explained that such
an adjustment was not a departure from the guidelines
range, and we noted in Ross that a departure below a
statutory minimum would be impermissible unless 18
U.S.C. §§ 3553(e) or (f) applied. 219 F.3d at 595. Cruz’s
state sentence was not discharged, and United States v.
Ramirez, supra, the only published decision on point,
holds that a discharged sentence may not be used to
reduce a statutory minimum sentence.
  Later the Sentencing Commission added a note (origi-
nally Application Note 7, later renumbered 4; see also
Policy Statement § 5K2.23) to section 5G1.3(b) that
extends the section to discharged sentences. But the note
explains that the way to take a discharged sentence
No. 08-4194                                               5

into account in sentencing is by making a downward
departure from the defendant’s guideline range—and
with inapplicable exceptions a statutory minimum blocks
a downward departure that carries the sentence below
the minimum. E.g., United States v. Forman, 553 F.3d
585, 588 (7th Cir. 2009) (per curiam); United States v.
Cooper, 461 F.3d 850, 856 (7th Cir. 2006).
  The result in Ross was tied to the undischarged
character of the state sentence even more tightly than
by the guidelines. The failure to subtract the time served
on a nondischarged sentence would sometimes create
arbitrary differences among offenders. Section 5G1.3
“operates to mitigate the possibility that the fortuity of
two separate prosecutions will grossly increase a defen-
dant’s sentence.” Witte v. United States, 515 U.S. 389, 405
(1995); see also United States v. Plantan, 102 F.3d 953, 955
(7th Cir. 1996). The adjustment in Ross for the portion of
the state sentence that the defendant had already
served was necessary to avoid a situation in which the
happenstance of how much of the prior sentence has
been served when the federal sentence is imposed
would determine the length of the defendant’s imprison-
ment. Suppose the federal statutory minimum were
10 years (as in this case) and one defendant had served
1 year of a related state sentence and another defendant
9 years. Without an adjustment the total length of impris-
onment of the first defendant would be 19 years and of
the second defendant 11 years; to make each defendant
serve total prison time of 10 years (supposing the sen-
tencing judge thought them equally deserving of
that amount of time), the first defendant would require
a 9-year reduction and the second defendant a 1-year
6                                                 No. 08-4194

reduction. (If the judge wanted both defendants to be in
prison for 11 years—the district judge in Ross wanted the
defendant to serve a prison term slightly longer than
the statutory minimum—the judge would give the first
defendant a reduction of 8 years and the second
defendant no reduction.)
   The approach that we took in Ross eliminated an arbi-
trary feature of concurrent sentencing. But, perhaps
unfortunately, the approach is not available in the
present case, because there is no concurrent sentence and
cannot be one when the defendant is no longer “subject
to an undischarged term of imprisonment.” 18 U.S.C.
§ 3584(a); see United States v. McNeil, 573 F.3d 479, 480
(7th Cir. 2009); United States v. Fay, 547 F.3d 1231, 1236
(10th Cir. 2008). Both decisions on which Ross relied for
its approach had in turn relied on the fact that in 18 U.S.C.
§ 3584(b) Congress had directed sentencing judges, in
deciding whether to impose a concurrent or a consecu-
tive sentence, to consider the sentencing factors in 18
U.S.C. § 3553(a), which in turn incorporated the Sen-
tencing Commission’s guidelines and policy statements,
id., §§ 3553(a)(4), (5)—including therefore section 5G1.3(b)
of the guidelines, the section on which we had relied
in Ross. United States v. Drake, 319 F.3d 1438, 1440-41 (9th
Cir. 1995); United States v. Kiefer, 20 F.3d 874, 876 (8th Cir.
1994). The chain of incorporations is broken when there
is no concurrent sentence.
    The confession of error is rejected and the judgment is
                                                   A FFIRMED.

                            2-11-10
