Case o' The Week: Bowlegged Ban - Montes-Ruiz and Consecutive sentences
Fed + State, federal district judge can order sentence be consecutive ("bowlegged") to second, not-yet-imposed state sentence.
Fed + Fed, not so much . . .
United States v. Montes-Ruiz, 2014 WL 1099504 (9th Cir. Mar. 21, 2014), decision available here.
Players: Decision by Judge Rawlinson, joined by Judges Gould and DJ Lemelle.
Facts: [Ed. note: the various convictions and revocations in this case are complicated. Reported here are charges relevant to the main appellate issue].
In 2007, Montes-Ruiz was convicted of attempted entry after deportation. Id. at *1. Removals, reentries, and revocations followed. Id. In 2012, Montes-Ruiz attempted to enter again, with false documents and with individuals hidden in the trunk of his vehicle. Id. Two cases ensued. Judge Burns proceeded over revocations proceedings, Judge Lorenz over the new substantive Section 1326 case. Id. Judge Burns tried to delay the revocation sentencing to follow the new Section 1326 sentencing, but the defense asked Judge Burns to go forward. Id. Judge Burns imposed 24 months of custody on the revocation, “to be served consecutively to the anticipated sentence to be imposed by Judge Lorenz for the substantive offense.” Id. at *2. Judge Lorenz later imposed an 18 month sentence on the new substantive offense, consecutive to the revocation sentence previously imposed by Judge Burns. Id. Montes-Ruiz appealed Judge Burns’ consecutive, 24-month revocation sentence. Id.
Issue(s): “Javier Montes-Ruiz appeals the district court’s decision to impose its sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case.” Id. at *1.
Held: “We vacate and remand the first sentence [the revocation sentence] imposed to ensure compliance with the provisions of 18 U.S.C. § 3584.” Id. “We are persuaded by the language of the statute, the rationale of our prior decisions, the decisions from our sister circuits, and dicta from the Supreme Court that § 3584 does not permit a federal sentencing court to impose a sentence to run consecutively to another federal sentence that has yet to be imposed.” Id. at *6.
Of Note: Confusing stuff, this. In a nutshell, in Setser the Supreme Court rejected a previous line of Ninth law and held that a district court has a common law power to order that a federal sentence run consecutively to an anticipated, but not-yet-imposed state sentence. Id. at *3 (discussing Setser v. United States, 132 S. Ct. 1463 (2012)). Because of the limitations of Section 3584, however, Judge Rawlinson here concludes that a district court does not have the same common law power to order that a federal sentence be run consecutively to an anticipated, but not-yet-imposed federal sentence. Id. at *5 (discussing similar holdings in the Fourth and Fifth Circuits). The result is a remand, so Judge Burns can take another look at the first, revocation sentence.
How to Use: Good outcome here – maybe Mr. Montes-Ruiz has a shot at reducing that stiff (consecutive) revocation sentence on remand. And good to have limits on anticipatory consecutive sentences for federal cases. The complication, however, is when the defense wants a federal sentence concurrent to a not-yet-imposed federal term in another case. (For example, if trying to resolve minor federal charges in your district, while heavier charges await in another). Presumably, a concurrent sentence to a not-yet-imposed federal term is verboten under Montes-Ruiz. Yet another twist in the Byzantine rules on concurrent versus consecutive federal time.
For Further Reading: As of March 24, the N.D. Cal. will be a large urban district with no federal pretrial detention facility. FDC Dublin has been suddenly and unexpectedly shut down by the BOP. “Dublin” offered our clients a law library, decent food, reasonable outdoor time, good visiting facilities – basic amenities missing in the county jails where federal defendants are held pretrial. In ‘88, we’re told, the FPD, the ACLU, and Morrison & Foerster sued over the lack of federal pretrial detention facilities in the district. Any district vets involved in that old litigation please be in touch – it may be time to dust off those pleadings and get NorCal on the MDC list. See List of MDC facilities here.
Cartoon from http://comicsidontunderstand.com/wordpress/wp-content/uploads/2013/01/concurrent.gif
Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org