Setser v. United States

LII note: The U.S. Supreme Court has now decided Setser v. United States.


1. Whether a district court can impose a federal sentence that runs consecutively to a state sentence even before that sentence is imposed.

2. Whether it is reasonable for a federal sentence to run consecutively to one state sentence but concurrently to another when those two state sentences run concurrently to each other.

Oral argument: 
November 30, 2011

Petitioner Monroe Setser’s arrest in Lubbock, Texas for drug- and firearms-related crimes resulted in both state and federal criminal charges as well as the revocation of his probation for an unrelated state offense. Setser pleaded guilty in federal court and received a 151-month prison sentence that would run concurrently to the state sentence to be imposed for the same incident but consecutively to the sentence imposed pursuant to his probation revocation. The Fifth Circuit affirmed on appeal. Setser now argues that federal district courts lack the authority to impose federal sentences that run consecutively to anticipated state sentences. He notes that Congress has not demonstrated any intention to the contrary. By invitation of the Supreme Court, attorney Evan Young responds that district courts have broad discretion in determining how federal sentences will be served. Young argues that this determination must remain an exclusively judicial function.

    Questions as Framed for the Court by the Parties 

    1. Does a district court have authority to order a federal sentence to run consecutively to an anticipated, but not-yet-imposed, state sentence?

    2. Is it reasonable for a district court to provide inconsistent instructions about how a federal sentence should interact with state sentences?


    Setser pleaded guilty in the United States District Court for the Northern District of Texas to possession with intent to distribute fifty or more grams of methamphetamine and aiding and abetting. See United States v. Setser , 607 F.3d 128, 129 (5th Cir. 2010). On October 1, 2007, police officers arrested Setser in Lubbock, Texas after stopping his car and finding in his possession methamphetamine and other drugs along with two pistols. See Brief for Petitioner , Monroe Ace Setser at 5. At the time of his arrest, Setser was serving a five-year probation term imposed in state court for a 2006 state offense. See Id. His arrest led to new charges in both state and federal courts. See Id. State prosecutors indicted Setser for possession with intent to distribute methamphetamine and also filed a motion to revoke his probation. See Id. However, during the pendency of state proceedings, federal prosecutors filed a writ of habeas corpus ad prosequendum , bringing Setser into federal custody. See Id. They charged him with possession of narcotics with intent to distribute, possession of a firearm by a felon, and possession of a firearm in furtherance of a drug-trafficking crime. See Id. A plea bargain with the federal prosecutors resulted in dismissal of the firearms-related charges in exchange for Setser’s guilty plea on the drug-related offenses. See Id. at 5–6.

    At Setser’s federal sentencing , the district court imposed a 151-month prison term, to be served consecutively to any sentence imposed by the state court for Setser’s 2006 offense and concurrently to any sentence for his 2007 state offense. See Setser , 607 F.3d at 129. Thus, in essence, the district court ordered Setser’s 151-month sentence to begin after the sentence for his 2006 state conviction but at the same time as his sentence for the 2007 incident. See Id. Setser appealed his federal sentence on grounds that the district court lacked authority under the governing sentencing statute to require that his federal prison sentence run consecutively to an anticipated state sentence. See 129–30; 18 U.S.C. § 3584 .

    Subsequently, when the proceedings returned to state court, a Texas judge revoked Setser’s five-year probation sentence and imposed a five-year prison sentence for his 2006 conviction. See Setser , 607 F.3d at 130. Setser pleaded guilty to the 2007 state charge of possession with intent to deliver a controlled substance. See Id. The judge sentenced Setser to ten years of imprisonment for the 2007 offense, and ordered this sentence to run concurrently with the five-year prison term imposed in place of his probation. See Id.

    Setser served only about two and one-half years in state prison for both the 2006 and 2007 sentences. See Setser , 607 F.3d at 130. On March 17, 2010, the state system released Setser and placed him on parole , and the Federal Bureau of Prisons (“BOP”) took custody of him pursuant to his federal sentence. See Id. According to BOP inmate data, Setser began serving his federal sentence on that same date, March 17, having received no credit on his 151-month federal sentence for time served in state prison for the 2007 offense. See Id. Setser appealed his federal sentence, but the Fifth Circuit upheld the district court’s anticipatory sentence and further held that the sentence was not otherwise unreasonable. See Id.


    In this case, the Supreme Court will determine whether 18 U.S.C. § 3584 , which concerns multiple sentences of imprisonment, gives district courts the authority to impose a federal sentence that runs consecutively to a state sentence that has not yet been formulated. Setser argues that district courts lack this power because the plain language of the statute only authorizes consecutive sentencing where the state sentence has already been ordered, and Congress has not demonstrated intent to permit anticipatory sentences. See Brief for Petitioner at 13. However, Evan Young , in support of the district court judgment, contends that the statutory text gives district courts discretion to decide how multiple sentences should be served, including future sentences. See Brief of Amicus Curiae at 8–10. Thus, he argues that a district court may order a consecutive sentence in anticipation of a state sentence. See Id.

    Textual Interpretation of § 3584

    Setser argues that a district court does not have the authority to impose a federal sentence consecutive to any future state sentence because Section 3584 does not expressly grant this power. See Brief for Petitioner at 13–14; 18 U.S.C. § 3584 . He contends that Section 3584(a) enables district courts to order consecutive sentences in only two circumstances: when the defendant is sentenced to multiple imprisonment terms at once, or when the defendant is already subject to an unperformed term of imprisonment. See Brief for Petitioner at 13–14. Since his case does not involve the former situation, Setser notes that the district court’s authority here turns on whether a future sentence could be considered an “undischarged term” to which the defendant is already subject. See Id. at 14–15. Asserting that statutes should be interpreted according to the plain meaning of their language, he reasons that use of the words “already” and “undischarged term” indicates that the prison sentence described in the statute must be one already in place, pre-existing any new federal sentence. See Id. at 15–16. Setser further notes that a prison term can only be “discharged” after it has been ordered. See Id. at 16. Thus, under his analysis, the plain language of the statute does not grant courts the authority to incorporate future state sentences. See id .

    Furthermore, even after considering Section 3584(a) in its entirety, Setser maintains that the district court lacks power to impose a consecutive order in this case. See Brief for Petitioner at 17. While the third sentence of Section 3584(a) establishes that multiple sentencing terms ordered at different times should run consecutively by default, Setser contends that this default outcome only applies to cases where the court could impose the concurrent-or-consecutive designation on pre-existing sentences. See Id. at 18. He emphasizes that the last two sentences of Section 3584(a) do not enlarge the scope of authority that Congress granted to district courts. See Id.

    Young, however, argues that the text of Section 3584 does not limit the courts’ concurrent-or-consecutive authority to just two circumstances. See Brief of Amicus Curiae at 18–19. Attacking Setser’s key presumption, Young denies that Section 3584(a) is a pure grant of judicial authority, noting specifically that the statute does not even refer to “courts” in the first sentence. See id. Hence, Young maintains that Setser’s reading of the statute is unworkable because it may leave no one to decide whether consecutive or concurrent sentences should be served in cases similar to Setser’s. See id. Young also points out that the statute does not explicitly isolate Setser’s two circumstances as the only permitted situations where consecutive sentences may be ordered. See Id. He therefore concludes that Setser’s assumption of narrow allocation of power is unwarranted. See id.

    Finally, Young notes that the rest of Section 3584(a) uses language markedly different from that of the first sentence. See Brief of Amicus Curiae at 19–20. Particularly, while the first sentence concerns an imprisonment term that has already been charged to a defendant, the third sentence addresses terms that are ordered at different times. See Id. ; 18 U.S.C. § 3584( a ) . Although Setser claims that the second and third sentences merely illustrate how federal courts are to approach multiple-sentencing situations, Young argues that such an interpretation does not flow from a plain reading of the text. See Brief of Amicus Curiae at 20. Instead, he asserts that the second and third sentences should be understood as channeling to the courts broad authority to make concurrent-or-consecutive determinations whenever sentencing terms are ordered at different times. See id.

    Statutory Construction and Legislative Intent Behind § 3584

    Both parties look to the construction and the legislative intent of Section 3584 to support their interpretations of the statute. To begin, Setser notes that statutes are traditionally constructed in a manner that gives each clause meaning. See Brief for Petitioner at 20. He also states that here, the first sentence of Section 3584(a) sets boundaries on the judiciary’s power to order a consecutive sentence. See id . Thus, Setser asserts that district courts cannot impose consecutive service to any nonexistent, future state sentences, as such an interpretation would render the first sentence of Section 3584(a) meaningless. See id . Moreover, he argues that a statute must be interpreted in a way where each part makes sense in relation to others; however, to read Section 3584(a) as giving district courts authority to order federal sentences consecutive to future state sentences would make it impossible for courts to comply with Section 3584( b ) . See id . at 21–22; 18 U.S.C. § 3584( b ) . Section 3584(b), Setser observes, requires district courts to consider factors listed in Section 3553( a ) when making a concurrent-or-consecutive decision, including whether the aggregate sentence will have a deterrent impact. See Brief for Petitioner at 22; 18 U.S.C. § 3553( a ) . He argues that district courts cannot adequately consider these factors when one of the sentences has not yet been imposed, because they cannot know how long the total sentence will be. See Brief for Petitioner at 22.

    In examining Section 3584’s legislative history, Setser contends that Congress intended the statute to apply only to state sentences that have already been imposed. See Brief for Petitioner at 22–23. He notes that the Senate Judiciary Committee’s report, which discussed an early version of the statute, only addressed situations in which the defendant received multiple federal terms of imprisonment simultaneously or was already serving a state sentence. See id . Therefore, Setser argues that Congress has not shown any intention to allow district courts to order a sentence consecutive to a future state sentence. See id . at 23. He adds that the two circuit courts that have considered Section 3584’s legislative history have similarly concluded that Congress did not intend to include future imprisonment terms within the statute. See id .

    Young, on the other hand, argues that reading Section 3584 as a whole supports the idea that district courts may impose a sentence consecutive to a future state sentence. See Brief of Amicus Curiae at 17. He states that instead of establishing a strict default rule where all sentences must be served consecutively, Congress gave district courts discretion to decide whether sentences should be served concurrently or consecutively through Section 3584(a). See id. In cases such as Setser’s, judges facing concurrent-or-consecutive decisions are required to take into account the factors listed in Section 3553(a)—which include the severity of the offense, the criminal history of the defendant, and the expected deterrent effect of the sentence; the factors, in turn, provide defendants with a basis on which to appeal allegedly unreasonable sentencing orders. See id. at 18.However, Young argues that Setser’s reading of the statute would eliminate judicial discretion in appropriate cases, resulting in the prisoners’ losing the right to argue for concurrent sentencing. See Id.

    Furthermore, Young contends that Congress has consistently viewed sentencing as a uniquely judicial function. See Brief of Amicus Curiae at 26. For instance, he notes that by limiting the sentencing capabilities of non-judicial bodies such as the Parole Commission, Congress has affirmed that the sentencing court should determine a prisoner’s full term of incarceration. See id . at 27. Referring to the Senate Judiciary Committee’s report, Young argues that Congress has recognized district courts’ traditional power to make concurrent-or-consecutive determinations without making an exception for anticipatory sentencing. See Id. at 28–29. Moreover, he emphasizes that Congress generally desired more sentencing guidance from the courts instead of less, even though it did not require courts to speak in every case where multiple sentences of imprisonment were imposed. See Id. at 29.


    In contesting his federal sentence, Setser argues that an interpretation of federal law that could allow a district court to impose a federal prison sentence that runs consecutivelyto a nonexistent but forthcoming state sentence is unworkable. See Brief for Petitioner at 27. When a defendant will be sentenced in two jurisdictions—federal and state—Setser asserts that authority to impose a consecutive or concurrent sentence should rest exclusively with the subsequent-sentencing court, as only that court can determine the defendant’s total punishment. See Id. Similarly, the Solicitor General notes that only the subsequent-sentencing court can evaluate the nature and disposition of each offense and examine relevant changes in the defendant’s situation since the imposition of the first sentence. See Brief for the United States in Support of Petitioner at 27–28. Knowledge of such facts, the Government claims, enables the subsequent-sentencing court to tailor an appropriate sentence based on all relevant factors. See Id. at 28.

    Setser also contends that his interpretation of the governing sentencing statute, 18 U.S.C. § 3584 , prevents district courts from imposing arbitrary or impossible sentences. See Brief for Petitioner at 27–28. He argues that his own conflicting sentence exemplifies this point: when two state sentences run concurrently, a federal sentence cannot run consecutively to one but concurrently with the other. See Id. at 28. According to Setser, similar conflicting orders have occurred in other jurisdictions that allow district courts to impose consecutive sentences as to nonexistent but forthcoming sentences. See Id.

    Finally, in Setser’s view, the district court’s anticipatory-sentencing power offends principles of federalism, as it diminishes a state’s authority to determine the effect of its own judgment. See Brief for Petitioner at 30. Specifically, he argues that the federal court’s anticipatory-sentencing ability infringes on state authority to establish the exact length of each criminal’s punishment. See Id. at 32. Setser asserts that individual states should retain substantial flexibility in determining sentence length, as state courts alone are able to customize punishments that fit the needs and conditions of their local constituencies. See Id.

    Acting as Respondent by invitation of the Court , attorney Evan Young counters Setser’s concern over ambiguous sentencing orders, noting that appellate courts review these orders for reasonableness. See Brief of Amicus Curiae in Support of the Judgment Below at 31–32. Young observes that anticipatory sentencing is practiced in many courts nationwide, and no evidence indicates that the authority is used oppressively. See Id. at 32. While he concedes that federal district courts may occasionally impose unreasonable sentences, Young claims that circuit courts have the unquestionable authority to fix any errors on appeal. See Id. Indeed, circuit courts will vacate and remandcases for resentencing when district courts issue unreasonable orders such as ambiguous anticipatory sentences. See Id. at 33.

    Furthermore, with respect to the argument that Setser’s own sentence was unreasonable, Young responds that the sentencing order was justified because Setser was onprobation for a different offense when he committed the drug-related crime in 2007. See Brief of Amicus Curiae at 34–35. In Young’s view, it is perfectly reasonable for a district court to order a federal sentence to run consecutively to a state sentence imposed for a state probation revocation. See Id. at 35. Furthermore, nothing prevents a defendant from asking the district court to modify an ambiguous sentencing order. See Id. at 36. Young argues that the defendant ultimately has the responsibility to clarify an anticipatory sentence when it is unclear how the subsequent sentence may affect the total punishment. See Id.

    Finally, Young asserts that federal anticipatory sentencing promotes federalism and federal-to-state comity by allowing state courts to account for concurrent/consecutive orders of federal courts and thus determine the total length of punishment. See Brief of Amicus Curiae at 38–39. According to Young, federal courts impose anticipatory sentences expecting that state courts will modify their sentences in this manner. See Id. at 39. In Young’s view, non-anticipatory federal sentences may generate tension between federal and state sentencing orders. See Id. Young claims that without transparent federal sentencing orders, state courts are forced to make sentencing decisions in the dark, potentially resulting in longer or shorter total sentences than intended. See Id. at 40–41.


    Setser argues that Section 3584(a) does not allow district courts to order a federal sentence to run consecutively to a nonexistent, but forthcoming, state sentence. He notes that legislative intent in enacting the statute supports his view. Young, however, asserts that the statute allows district courts to use discretion in determining how multiple sentences of imprisonment should be served, even with respect to state sentences that have not yet been imposed. Young contends that Congress views sentencing as a function of the judiciary and wanted to encourage more discretion in sentencing decisions. The Court’s decision in this case will clarify whether district courts may order a federal sentence to run consecutively to a state sentence until and unless the state sentence has been imposed.


    The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.