607 F.3d 128 (5th Cir. 2010), 08-10835, United States v. Setser

Docket Nº:08-10835.
Citation:607 F.3d 128
Opinion Judge:BENAVIDES, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Monroe Ace SETSER, Defendant-Appellant.
Attorney:James Wesley Hendrix, Asst. U.S. Atty. (argued), Dallas, TX, for Plaintiff-Appellee. William Reynolds Biggs, Asst. Fed. Pub. Def. (argued), Jason Douglas Hawkins, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.
Judge Panel:Before BENAVIDES, STEWART and SOUTHWICK, Circuit Judges.
Case Date:May 11, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 128

607 F.3d 128 (5th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Monroe Ace SETSER, Defendant-Appellant.

No. 08-10835.

United States Court of Appeals, Fifth Circuit.

May 11, 2010

Page 129

James Wesley Hendrix, Asst. U.S. Atty. (argued), Dallas, TX, for Plaintiff-Appellee.

William Reynolds Biggs, Asst. Fed. Pub. Def. (argued), Jason Douglas Hawkins, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before BENAVIDES, STEWART and SOUTHWICK, Circuit Judges.

BENAVIDES, Circuit Judge.

Defendant-Appellant Monroe Ace Setser appeals the district court's imposition of a federal sentence that runs consecutively to an undischarged state sentence. Because the imposition of a consecutive sentence is fully within the district court's authority, and because we conclude that the sentence is otherwise reasonable and not illegal, we find no error in the district court's sentencing of defendant. Accordingly, we AFFIRM.

I. BACKGROUND

Monroe Ace Setser pleaded guilty to possession with intent to distribute 50 grams or more of methamphetamine and aiding and abetting. At the time he committed the instant offense, Setser was still serving a five-year term of probation in state court for a previous 2006 state offense. Additionally in 2007, Setser had been charged in state court with possession with intent to deliver a controlled substance-an offense that was directly related to the instant federal offense of conviction.

Following Setser's entry of a guilty plea, the federal district court sentenced Setser to 151 months of imprisonment. At the time of sentencing, the district court stated that the 151 months were to be served consecutively to any sentence imposed as a result of his 2006 state offense and concurrently with any sentence imposed pursuant to his 2007 state offense. Setser timely appealed his sentence, arguing that the district court's sentence was illegal since 18 U.S.C. § 3584 does not grant the district court the authority to impose a federal

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sentence consecutively to an undischarged state sentence.

Subsequent to the district court's imposition of the federal sentence, Setser's probation in his 2006 state case was revoked by the state court, and he was sentenced to five years of imprisonment. Additionally, Setser was convicted of possession with intent to deliver a controlled substance in the 2007 state charge, and as a result, he was sentenced to ten years of imprisonment. The state court ordered that these two state sentences would run concurrently to one another.

On April 12, 2010, the United States moved pursuant to Fed. R.App. P. 10(e)(2)(C) & (e)(3) to supplement the record with documents showing that the Texas prison system released Setser and that he is now in the custody of the federal Bureau of Prisons (" BOP" ). Consequently, after serving only two-and-a-half years in the state system on both of his 2006 and 2007 state sentences, Setser is now in BOP custody. Setser's Texas parole documents show that he was released from state custody on March 17, 2010. The BOP's " Public Information Inmate Data" sheet indicates that Setser's federal sentence began to run on March 17, 2010. The BOP did not award Setser any credit for the two-and-a-half years he spent in state custody.

II. STANDARD OF REVIEW

" A sentence is ultimately reviewed for ‘ unreasonableness.’ " United States v. Candia, 454 F.3d 468, 472 (5th Cir.2006) (quoting United States v. Smith, 440 F.3d 704, 705 (5th Cir.2006)). " Under Booker, it is the sentence itself, including its consecutive nature, that is ultimately reviewed for reasonableness." Id. at 472-73 (quoting United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Here, where the Defendant-Appellant is only challenging the imposition of a consecutive sentence, and not the district court's application or calculation of the Guidelines themselves, " the appellate court should ... consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also Candia, 454 F.3d at 474 (" We have determined that...

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