United States-Montes-Ruiz, No. 12-50398 (Rawlinson with Gould and Lemelle (EDLA)) ---

 

In Setser v. United States, 132 S. Ct. 1463 (2012), the Supreme Court held that a federal judge may impose a sentence consecutive to a sentence that has yet to be imposed by a state judge.  The question in this appeal is this: May a federal judge impose a sentence to run consecutive to a sentence that has yet to be imposed by another federal judge in a different case?  Consistent with Setser and its prior cases, the Ninth Circuit held that a federal judge cannot do this.  It therefore vacated such a sentence and remanded for further proceedings on an open record.

The fact pattern here is familiar -- a combination of a new illegal-reentry charge and an alleged supervised-release violation on an old one.  Rather than resolving both cases at the same time in front of the same judge, these cases were handled separately; Judge Burns of the Southern District of California was handling the supervised-release violation, while Judge Lorenz was handling the new case.  Judge Burns's case went first, and while at first he demurred to Judge Lorenz's case, the defendant insisted that Judge Burns go first.  He imposed a 24-month sentence to run consecutive to the sentence that Judge Lorenz would impose in the new case.  Judge Lorenz then imposed a sentence of 18 months, to run consecutive to the sentence imposed by Judge Burns.  The defendant then appealed the sentence that Judge Burns imposed.

Before Setser, the Ninth Circuit had held that federal judges may not direct that a sentence be either consecutive to or concurrent with an as-yet unimposed state sentence.  Setser changed this rule in light of the traditional discretion that judges had at common law to direct whether multiple sentences should run concurrently or consecutively.  For federal sentencing, the relevant statute is 18 U.S.C. § 3584, which limits the common-law discretion that judges have in this arena but confirms that the discretion belongs to judges (and not, say, the Bureau of Prisons).  But § 3584 allows a federal judge to exercise the concurrent-versus-consecutive discretion only with respect to a sentence that has already been imposed.  In Setser the Supreme Court suggested that when two different federal sentences are concerned, the rule would be different than when a federal and a state sentence are concerned.  This let the Ninth Circuit rely on its prior reasoning -- that a federal judge cannot order a sentence to run either concurrent with or consecutive to a sentence that another federal judge has yet to impose.  Decisions from the Second and Fourth Circuits bolstered the court's conclusion here.  Accordingly, Judge Burns's sentence was the result of an abuse of discretion insofar as he imposed it to run consecutive to a sentence that had not yet been imposed.  On remand, Judge Burns was free to reconsider that decision now that Judge Lorenz's sentence had been imposed. 

Moreover, the 24-month term was properly imposed under 18 U.S.C. § 3583(e).  Finally, the appeal was not moot because, on remand, Judge Burns was free to impose a sentence less than 24 months, or impose a concurrent term.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/21/12-50398.pdf