Setser v. United States

• Decision Date: 28 March 2012
• Docket Number: No. 10–7387.,10–7387.
• Citation: 182 L.Ed.2d 455,132 S.Ct. 1463,566 U.S. 231
• Parties: Monroe Ace SETSER, Petitioner v. UNITED STATES.
• Court: U.S. Supreme Court

566 U.S. 231
132 S.Ct. 1463
182 L.Ed.2d 455

Monroe Ace SETSER, Petitioner
v.
UNITED STATES.

No. 10–7387.

Supreme Court of the United States

Argued Nov. 30, 2011.
Decided March 28, 2012.

Jason D. Hawkins, for Petitioner.

William M. Jay, for Respondent, supporting the Petitioner.

Evan A. Young, as amicus curiae, appointed by this court, supporting the judgment below.

Jason D. Hawkins, Counsel of Record, Kevin J. Page, J. Matthew Wright, Monica Markley, Richard A. Anderson, Office of the Federal Public Defender, Dallas, TX, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, William M. Jay, Assistant to the Solicitor General, Richard A. Friedman, Attorney, Department of Justice, Washington, DC, for United States Supporting Petitioner.

Justice SCALIA delivered the opinion of the Court.

566 U.S. 233

We consider whether a district court, in sentencing a defendant for a federal offense, has authority to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.

I

When officers of the Lubbock Police Department arrested petitioner Monroe Setser for possessing methamphetamine, he was already serving a 5–year term of probation imposed by a Texas court for another drug offense. Setser was indicted in state court for possession with intent to deliver a controlled substance, and the State also moved to revoke his term of probation. As often happens in drug cases, the federal authorities also got involved. A federal grand jury indicted Setser for possessing with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), and he pleaded guilty.

Before the federal sentencing hearing, a probation officer calculated the applicable Guidelines range to be 121 to 151 months' imprisonment. Citing precedent from the United States Court of Appeals for the Fifth Circuit, United States v. Brown, 920 F.2d 1212 (1991)(per curiam), he indicated that the District Court had discretion to make Setser's sentence either concurrent with or consecutive to any sentence anticipated in the separate state-court proceedings. Setser objected, arguing that the District Court lacked such authority. The court nevertheless made the sentence of 151 months that it imposed consecutive to any state sentence imposed for probation violation, but concurrent with any state sentence imposed on the new drug charge. Setser appealed.

132 S.Ct. 1467

While Setser's appeal was pending, the state court sentenced him to a prison term of 5 years for probation violation and 10 years on the new drug charge. It ordered that these sentences be served concurrently. Setser then made before the Court of Appeals, in addition to the argument that the

566 U.S. 234

District Court had no authority to order a consecutive sentence, the argument that his federal sentence was unreasonable because it was impossible to implement in light of the concurrent state sentences.

The Court of Appeals for the Fifth Circuit affirmed. 607 F.3d 128 (2010). Following its earlier Brown decision, the court held that the District Court did have authority to order a consecutive sentence. 607 F.3d, at 131–132. It also held that Setser's sentence was reasonable, even if it was " 'partially foiled' " by the state court's decision. Id., at 132–133. We granted certiorari, 564 U.S. ––––, 131 S.Ct. 2988, 180 L.Ed.2d 821 (2011), and appointed an amicus curiae to brief and argue this case in support of the judgment below, 564 U.S. ––––, 131 S.Ct. 2988, 180 L.Ed.2d 821 (2011).

II

Before proceeding further, it is important to be clear about what is at issue. Setser does not contend that his federal sentence must run concurrently with both state sentences imposed after his federal sentencing hearing. He acknowledges that someone must answer "the consecutive versus concurrent question," Brief for Petitioner 27, and decide how the state and federal sentences will fit together. The issue here is who will make that decision, which in turn determines when that decision is made. One possible answer, and the one the Fifth Circuit gave, is that the decision belongs to the Federal District Court at the federal sentencing hearing.

The concurrent-vs.-consecutive decision has been addressed by § 212(a) of the Sentencing Reform Act of 1984, 18 U.S.C. § 3584, reproduced in full as Appendix A, infra . The first subsection of that provision, which says when concurrent and consecutive sentences may be imposed, and specifies which of those dispositions will be assumed in absence of indication by the sentencing judge, does not cover the situation here. It addresses only "multiple terms of imprisonment ... imposed ... at the same time" and "a term of imprisonment ... imposed on a defendant who is

566 U.S. 235

already subject to an undischarged term of imprisonment." § 3584(a). Here the state sentence is not imposed at the same time as the federal sentence, and the defendant was not already subject to that state sentence.

Setser, supported by the Government, argues that, because § 3584(a) does not cover this situation, the District Court lacked authority to act as it did; and that the concurrent-vs.-consecutive decision is therefore to be made by the Bureau of Prisons at any time after the federal sentence has been imposed. The Bureau of Prisons is said to derive this authority from 18 U.S.C. § 3621(b) (2006 ed. and Supp. IV), reproduced in full as Appendix B, infra.

On its face, this provision says nothing about concurrent or consecutive sentences, but the Government explains its position as follows: Section 3621(b) gives the Bureau the authority to order that a prisoner serve his federal sentence in any suitable prison facility "whether maintained by the Federal Government or otherwise." The Bureau may therefore order that a prisoner serve his federal sentence in a state prison. Thus, when a person subject to a federal sentence is serving a state sentence, the Bureau may designate the state prison as the place of imprisonment for the

132 S.Ct. 1468

federal sentence—effectively making the two sentences concurrent—or decline to do so—effectively making them consecutive.¹ Based on §§ 3584(a) and 3621(b), Setser and the Government argue that the concurrent-vs.-consecutive decision, under the circumstances presented here, is committed exclusively to the Bureau of Prisons.

It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of "the common-law background against which the statutes ... were enacted," New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), and the same approach

566 U.S. 236

is appropriate here, where the issue concerns a matter of discretion traditionally committed to the Judiciary. Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings. See Oregon v. Ice, 555 U.S. 160, 168–169, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). And a large majority of the federal appellate courts addressing the question have recognized a similar authority in the context here, where a federal judge anticipates a state sentence that has not yet been imposed. See Salley v. United States, 786 F.2d 546, 547 (C.A.2 1986) ; Anderson v. United States, 405 F.2d 492, 493 (C.A.10 1969)(per curiam); United States ex rel. Lester v. Parker, 404 F.2d 40, 41–42 (C.A.3 1968)(per curiam); United States v. Kanton, 362 F.2d 178, 179–180 (C.A.7 1966)(per curiam); but see United States v. Eastman, 758 F.2d 1315, 1317 (C.A.9 1985)² . We find nothing

566 U.S. 237

in the Sentencing Reform Act, or in any other provision of law, to show that Congress foreclosed the exercise of district courts' sentencing discretion in these circumstances.

Setser's main contention is that § 3584(a) has this effect. But that provision cannot sustain the weight that Setser asks it to bear. In essence, he reads the

132 S.Ct. 1469

first sentence in § 3584(a) to say that "terms [of imprisonment] may run concurrently or consecutively" only "[i]f multiple terms of imprisonment are imposed ... 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." Since the District Court was not imposing the state sentence and since it was not already imposed, the sentence could not be ordered to run consecutively. But if the text is exclusive—if the addition of only is correct—the provision forbids not only the imposition of consecutive sentences, but the imposition of concurrent ones as well. And yet, as Setser acknowledges, it must be one or the other; s...