United States v. Bishop — Waiver of § 5G1.3(b) Concurrent-Sentence Claims by Affirmative “No Objection” to the PSR; Dual-Sovereignty Double Jeopardy Rejection; § 3553(a) as an Independent Bar to Compassionate Release

Note on precedential status: This disposition is a Second Circuit summary order and “do[es] not have precedential effect.” It is nonetheless instructive as a practical application of waiver doctrine, U.S.S.G. § 5G1.3(b), double-jeopardy dual-sovereignty principles, and compassionate-release review.

1. Introduction

Parties: The United States (Appellee) v. Ronald Bishop (Defendant-Appellant).
Court: United States Court of Appeals for the Second Circuit.
Posture: Appeal from an order of the Eastern District of New York (Azrack, J.) denying Bishop’s motion to reduce his federal sentence under 18 U.S.C. § 3582(c)(1)(A)(i).

Background: Bishop’s criminal exposure arose from two overlapping matters. First, a Nassau County prosecution (the “State Case”) stemming from a July 2014 arrest for crack-cocaine-related felonies. Second, a later January 2016 arrest that became the “Federal Case,” involving drug-trafficking conduct and a significant firearms cache. Bishop ultimately pleaded guilty federally to (i) a drug conspiracy (Count One) and (ii) a § 924(c) firearm offense (Count Three). The state court later imposed a 10-year term and ordered it to run consecutively to the not-yet-imposed federal sentence. The federal judgment imposed 120 months and did not specify concurrency.

Key issues on appeal:

  • Whether Bishop could challenge the consecutiveness of his federal sentence under U.S.S.G. § 5G1.3(b), and whether consecutive punishment violated the Double Jeopardy Clause.
  • Whether the district court abused its discretion in denying compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).

2. Summary of the Opinion

The Second Circuit affirmed. It held that Bishop waived any U.S.S.G. § 5G1.3(b) concurrency argument by affirmatively stating he had no objection to the PSR, which explicitly said the State Case conduct was not treated as “relevant conduct” for the federal case. Because waiver extinguishes the claim, the court declined to review it.

The court also rejected Bishop’s Double Jeopardy claim on dual-sovereignty grounds: even if the same conduct is punished, state and federal prosecutions are by separate sovereigns and thus are not the “same offense” for Double Jeopardy purposes.

Finally, the court found no abuse of discretion in denying compassionate release: the record did not support Bishop’s assertion that the sentencing court intended concurrency, and the district court permissibly concluded the 18 U.S.C. § 3553(a) factors—especially public protection given drugs and numerous firearms—“decidedly” weighed against release.

3. Analysis

3.1. Precedents Cited

Standards of review and discretionary sentencing relief

  • United States v. Keitt, 21 F.4th 67 (2d Cir. 2021) (per curiam): The court relied on Keitt for two propositions central to compassionate-release adjudication: (i) appellate review of a denial is typically for abuse of discretion, and (ii) a district court may deny a motion either because no extraordinary and compelling reasons exist or because the § 3553(a) factors do not support release.
  • United States v. Borden, 564 F.3d 100 (2d Cir. 2009): Cited for the abuse-of-discretion definition—error of law, clearly erroneous fact assessment, or an outcome outside the range of permissible decisions.

Forfeiture, waiver, and the consequences of failing to object

  • United States v. Degroate, 940 F.3d 167 (2d Cir. 2019) and United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007): Both are used to frame the baseline rule that unpreserved sentencing objections are reviewed for plain error—if the issue was forfeited rather than waived.
  • United States v. Olano, 507 U.S. 725 (1993): Supplies the definitional anchor distinguishing waiver (intentional relinquishment of a known right) from forfeiture (mere failure to raise).
  • United States v. Williams, 930 F.3d 44 (2d Cir. 2019): Reinforces that waiver occurs when a party intentionally decides not to assert a right.
  • United States v. Agrawal, 726 F.3d 235 (2d Cir. 2013): The pivotal waiver authority here. The panel treated defense counsel’s affirmative “no objections” response to the PSR as more than forfeiture—it is waiver.
  • United States v. Lewis, 125 F.4th 69 (2d Cir. 2025) (per curiam): Cited as a recent confirmation of the Agrawal approach to waiver upon affirmatively declining to object.
  • United States v. Yu-Leung, 51 F.3d 1116 (2d Cir. 1995): Supplies the consequence: once waived, a claim is extinguished and not reviewed.

Double Jeopardy and dual sovereignty

  • Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001): Cited for the general principle that the Double Jeopardy Clause protects against being punished twice for a single criminal offense.
  • Gamble v. United States, 587 U.S. 678 (2019): The controlling modern statement of the dual-sovereignty doctrine: separate sovereigns create separate “offences,” allowing state and federal punishment for the same conduct without violating Double Jeopardy.

3.2. Legal Reasoning

(A) The consecutive/concurrent issue: why the court never reached the merits

Bishop attempted to invoke U.S.S.G. § 5G1.3(b), which can require concurrency (and a sentencing adjustment) when the undischarged term resulted from “another offense that is relevant conduct to the instant offense” under U.S.S.G. § 1B1.3. The critical fact in the record, however, was the PSR’s express statement that the State Case conduct was not treated as relevant conduct in the Federal Case—and Bishop did not object.

The panel treated counsel’s affirmative statement of no objection (“[n]one other than previously submitted”) as an intentional relinquishment under United States v. Agrawal. This doctrinal move matters: if the claim were merely forfeited, it could be reviewed for plain error under United States v. Degroate and United States v. Villafuerte. But once categorized as waiver, United States v. Yu-Leung forecloses appellate review altogether.

In effect, the operative “waived” issue was not only the ultimate consecutive/concurrent outcome, but the predicate factual/legal classification that would trigger § 5G1.3(b): whether the State Case constituted relevant conduct to the federal offenses. By leaving the PSR’s “not relevant conduct” determination untouched, Bishop eliminated the pathway to a § 5G1.3(b) argument.

(B) Double Jeopardy: the court’s short, categorical answer

Bishop’s constitutional theory was that consecutive punishment amounted to being punished twice for the same conduct. The panel rejected this under Gamble v. United States: even if the same acts underlie both cases, state and federal governments are separate sovereigns enforcing separate laws—thus, separate “offences.” Aparicio v. Artuz provided the general Double Jeopardy framing, and Gamble supplied the dispositive dual-sovereignty rule.

(C) Compassionate release: discretion supported by record interpretation and § 3553(a)

Under United States v. Keitt, the district court could deny relief either for lack of extraordinary and compelling reasons or because § 3553(a) counseled against release. The Second Circuit affirmed on abuse-of-discretion review (as defined in United States v. Borden).

Two aspects of the district court’s reasoning were upheld:

  1. Record-based rejection of “intended concurrency.” Bishop argued the original sentencing judge intended concurrency. The district court read the record differently: the PSR and government materials disclosed the state sentence, and the federal judgment did not order concurrency. The Second Circuit held that this interpretation was within permissible bounds and thus not an abuse of discretion.
  2. § 3553(a) factors “decidedly” against release. The district court emphasized the seriousness of the offense conduct—narcotics distribution plus possession of ten firearms including “assault-style weapons” and substantial ammunition—and the need to protect the public. The panel highlighted that public protection is expressly included in § 3553(a), validating the district court’s heavy weighting of dangerousness.

3.3. Impact

  • Sentencing practice: objections to the PSR are outcome-determinative. The order underscores that an affirmative “no objection” response can be treated as waiver, eliminating even plain-error review on appeal. In practical terms, defense counsel must preserve (i) “relevant conduct” disputes, and (ii) any intended invocation of U.S.S.G. § 5G1.3(b), on the record at sentencing.
  • Concurrency disputes will often turn on “relevant conduct” classifications. Because § 5G1.3(b) is triggered by relevant conduct, litigation over that classification can be the real battleground. Bishop illustrates that once the PSR’s relevant-conduct treatment becomes fixed (by waiver or lack of objection), concurrency arguments can collapse procedurally.
  • Double Jeopardy challenges to parallel state/federal punishment remain uphill after Gamble v. United States. The order reaffirms the doctrinal stability of dual sovereignty in the Second Circuit’s routine application.
  • Compassionate release: § 3553(a) can independently foreclose relief. Even where a movant frames the request as correcting an unintended consecutive structure, the district court may deny release if the offense conduct and public-safety considerations weigh against a reduction. Appellate review remains deferential.

4. Complex Concepts Simplified

  • Concurrent vs. consecutive sentences: Concurrent sentences run at the same time; consecutive sentences run one after the other, increasing total time in custody.
  • Relevant conduct (U.S.S.G. § 1B1.3): A Guidelines concept that can treat certain conduct beyond the count of conviction as part of the same overall criminal behavior for sentencing purposes. If a prior/other offense counts as relevant conduct, it can change offense level calculations and also trigger concurrency rules like U.S.S.G. § 5G1.3(b).
  • U.S.S.G. § 5G1.3(b): A guideline that can require a federal sentence to run concurrently with an undischarged term when the other offense is relevant conduct to the federal offense. It is not a general rule requiring concurrency whenever two cases involve overlapping facts; it hinges on the formal “relevant conduct” determination.
  • Forfeiture vs. waiver: Forfeiture is an accidental failure to object; the appellate court may still review for “plain error.” Waiver is an intentional choice not to object; the claim is treated as extinguished and generally cannot be reviewed at all.
  • Dual sovereignty (Double Jeopardy): Double Jeopardy bars multiple punishments for the same offense by the same sovereign. But state and federal governments are separate sovereigns; each can prosecute and punish the same conduct under its own laws.
  • Compassionate release (18 U.S.C. § 3582(c)(1)(A)(i)): A post-judgment mechanism allowing sentence reduction when extraordinary and compelling reasons warrant it and the § 3553(a) sentencing factors support release. A court may deny based on either prong.

5. Conclusion

United States v. Bishop is a procedural cautionary tale with substantive consequences. The Second Circuit affirmed because (i) Bishop’s counsel’s affirmative lack of objection to the PSR waived the predicate “relevant conduct” dispute necessary to invoke U.S.S.G. § 5G1.3(b); (ii) the Double Jeopardy challenge was foreclosed by the dual-sovereignty doctrine under Gamble v. United States; and (iii) the denial of compassionate release fit comfortably within the district court’s discretion, particularly given the seriousness of drug trafficking combined with extensive firearms possession and the resulting § 3553(a) public-safety analysis.