In U.S. v. Bidwell, No. 03-14790 (Dec. 15, 2004), the Court (Tjoflat, Dubina, Pryor) affirmed the imposition of a 15-year federal sentence for a father's filming and distributing his sexual abuse of his daughter, to run consecutive to a 30-year State sentence for the sexual abuse itself. The Court rejected the argument that USSG § 5G1.3 precluded the imposition of consecutive sentences.
The Court recognized that § 5G1.3 is designed to avoid the imposition of duplicative sentences. The Court pointed out, however, that this provision applies when an undischarged term of imprisonment resulted from an offense which has been fully taken into account in the calculation of an offender's offense level for a new offense. Here, the calculation of the offense level for the offense of trafficking in child pornography did not take account of the crime of sexual abuse. Videotaping is a different crime from sexual abuse.
The Court rejected the argument based on the fact that the sexual abuse could have been taken into account in the offense level calculation as part of Bidwell's "relevant conduct," regardless of whether it was actually taken into account by the sentencing judge. The Court noted that there was no manipulation of the charged conduct by the government to attain consecutive sentences. Instead, the State and Federal governments chose to prosecute the two crimes separately. In this situation, the district court has discretion to sentence consecutively.