Argument preview: Court to consider run-on sentences

On November 30, the Court will hear oral argument in Setser v. United States.  At issue in the case is whether a federal district court may direct that a criminal defendant’s sentence run consecutively with a yet-to-be-imposed sentence that the defendant is expected to receive for a state crime.

Petitioner Monroe Setser pleaded guilty and was sentenced in federal court for his possession in 2007 of fifty grams or more of methamphetamine with intent to distribute.  At the time, Setser was already serving a five-year term of probation for a separate instance of methamphetamine possession in 2006.

Because Setser’s federal crime also constituted an offense under state law, it was likely that the 2007 methamphetamine possession would lead not only to a federal prison term, but to a state sentence as well.  In addition, the 2007 drug possession could be expected to lead to a revocation of Setser’s probation.  At the time of Setser’s federal sentencing, he was under state indictment and the state had applied to revoke his probation.  He was ultimately convicted on the state charge and his probation was revoked, but not until after the imposition of the federal sentence.  Anticipating the state sentences, the federal judge directed that the federal sentence be served consecutively to any sentence that would be imposed by a state court as a result of his 2006 offense, but concurrently with any sentence imposed as a result of his 2007 offense.

Setser was then returned to the Texas state system, where his probation was revoked and he was convicted for the state crime arising out of the 2007 drug possession.  He was sentenced to five years for the 2006 offense and ten years for the 2007 offense, with the sentences to run concurrently.  He was paroled after two-and-a-half years, and was transferred to the Federal Bureau of Prisons.  He began serving his federal sentence in March 2010, with no credit being accorded him for the time he spent serving his state sentences.

Setser appealed his federal sentence to the Fifth Circuit, arguing that the district court had no power to direct that his sentence run concurrently or consecutively to a state sentence that had not yet been imposed.  He claimed that the Bureau of Prisons should have been able to determine, at the time he entered federal custody, whether he would be given credit for the time spent in state custody (which would have the effect of having his federal sentence run concurrently with the state ones).

The court of appeals affirmed on the basis of circuit precedent permitting anticipatory sentences such as Setser’s.  The court noted, however, that there was a circuit split on the issue, with the Eighth, Tenth, and Eleventh Circuits agreeing with the Fifth that federal courts may direct that sentences run consecutively to anticipated state sentences and the Second, Fourth, Sixth, Seventh, and Ninth Circuits holding to the contrary.  (The United States agrees with the five circuits that have held that courts lack such authority, but federal prosecutors did not press such an understanding of the statute in the circuits that had already decided the issue the other way.)

Setser filed a petition for certiorari, which the Court granted on June 13, 2011.  Because the United States agreed with Setser that a district court exceeds its authority when it orders a federal sentence to be served consecutively to an as-yet-unimposed state sentence, the Court appointed Evan Young, a former clerk to Justice Antonin Scalia, to brief and argue the case as an amicus in support of the judgment below.

The case will require the Court to interpret 18 U.S.C. § 3584(a), which provides, in relevant part, as follows:

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. . . .  Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.  Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

Both parties agree that Setser’s state prison sentence was neither imposed at the same time as his federal one nor undischarged at the time of his federal sentencing.  Accordingly, had the district court made no mention of the consecutive or concurrent nature of Setser’s sentence, neither of the default rules in the second and third sentences of Section 3584(a) would apply.  In Young’s view, however, that does nothing to suggest that the judge lacks the authority to direct affirmatively (rather than by default rule) that the sentence be served consecutively or concurrently.  While Setser argues that the judge may order consecutive or concurrent sentences only in the instances specified in Section 3584(a), Young counters that the statute specifies only the instances in which the default rules will be applied.

Setser’s principal argument is based on what he alleges to be the plain meaning of the statute.  He emphasizes – and the United States agrees – that his state and federal sentences were obviously not imposed “at the same time,” and his state term of imprisonment was not “undischarged” when he was sentenced in federal court.  Indeed, there was no sentence of imprisonment in place at all at the time.  Accordingly, he reasons, the district court lacked authority to direct that the federal sentence run consecutively or concurrently with any of the state sentences he was expected to receive in the future.  Rather, the Federal Bureau of Prisons should decide whether to count the time he served in state custody against his federal sentence – and it should make that determination at the conclusion of his state sentence.

In his brief on the merits, Young argues that Section 3584 should not be read as a limited grant of power to district courts.  Setser reads the statute as granting power to courts to impose concurrent or consecutive sentences, but only when a defendant is sentenced to multiple prison terms at the same time or the defendant’s sentence is “undischarged.” Young, on the other hand, reads the statute as recognizing judicial authority to impose concurrent or consecutive sentences, and simply providing default rules to govern cases in which the sentencing judge is silent on the concurrent/consecutive issue.  The judicial power to order consecutive or concurrent sentences does not derive from Section 3584, Young argues; instead, such an inherent judicial power was long recognized by the common law and dates from colonial times.  According to Young, the withdrawal of such longstanding judicial authority should not be implied from the language of Section 3584.

Setser responds that, prior to Section 3584, the law authorized the executive branch (the Attorney General, through the Bureau of Prisons) to permit time in a state institution to count against a federal sentence.  He points out that Young cannot cite any statute other than Section 3584 authorizing courts to impose concurrent or consecutive sentences, and he argues that the absence of such an authorization should be construed as indicating that judges have no such power except as delineated in that statute.

Young counters by pointing out that Setser cannot cite any statute authorizing the Bureau of Prisons to make the consecutive/concurrent determination.  Accordingly, Young argues, Setser’s reading of the statute would forbid anyone – including the BOP – from making a consecutive/concurrent determination in a case, such as this one, in which there is neither an undischarged sentence nor multiple simultaneous sentences.  Not so, argues Setser: Section 3584, even though written in the passive voice, is directed at only the court.

Young argues that Setser’s reading of the statute produces uncertainty, as both defendants and state officials will be unaware of how the federal sentence will be treated until after the state sentence is completed.  Further, such a reading will transfer power from judges to the Bureau of Prisons, which will have to determine whether to credit time served on a state charge against the federal sentence.  Both those policy results, Young claims, are inconsistent with Congress’s objective of encouraging clarity in sentences imposed by judges.  Setser, arguing that BOP had long enjoyed the ability to make that determination, interprets Section 3584 simply as not altering the pre-existing distribution of sentencing authority.