On March 28, 2012, the U.S. Supreme Court decided Setser v. United States, No. 10-7387, holding that a federal district court has the authority, in sentencing a defendant for a federal offense, to order that the federal sentence run consecutively to an anticipated state sentence. Further, the Court held, a later sentencing decision by the state court, which may make it difficult or even impossible to implement the federal sentence, does not render the federal sentence an abuse of discretion.
Petitioner Monroe Setser was indicted in state court for possession with intent to deliver a controlled substance, an offense that occurred while Setser was on probation. Along with the drug charges, the state moved to revoke Setser's probation. Setser also pleaded guilty to parallel federal charges. Over Setser's objection, the federal district court imposed a 151-month sentence, running consecutively to any state sentence imposed for the probation violation but concurrently with any state sentence on the drug charge. No state sentence had been imposed at the time of federal sentencing. While Setser's appeal of the federal sentence was pending, the state court sentenced him to five years' imprisonment for the probation violation and ten years on the drug charge. The state court ordered that its sentences run concurrently. Thus, Setser argued to the Fifth Circuit not only that the district court lacked authority to impose the sentence, but that the federal sentence was impossible to implement, and therefore unreasonable, because of the concurrent state sentences. He argued that the Bureau of Prisons, acting under 18 U.S.C. § 3621(b), rather than the district court, should have authority to decide how to implement the sentence. The Fifth Circuit rejected both of these arguments and affirmed. The Supreme Court granted certiorari and affirmed.
The applicable federal statute, 18 U.S.C. § 3584, gives a district court authority to order a federal sentence to run consecutively with a state sentence where the two sentences are imposed at the same time. It does not, however, address the situation in this case, where the state sentence has not yet been imposed. The Supreme Court ruled that this omission did not deprive a district court of sentencing authority when the state sentence had not yet been imposed. The Court first recognized the common-law principle that "Judges have long been understood to have discretion" to determine whether sentences will run consecutively or concurrently with state sentences. And although § 3584(a) does not explicitly confer such authority where the state has yet to impose a sentence, it also does not foreclose it. Section 3584(a) does not confer sentencing authority, it only places limits on authority that already exists. Thus, the absence of language conferring authority for the federal court to impose a sentence before the state court has done so does not affect a district court's broad sentencing authority. In contrast, § 3621(b) confers authority to the Bureau of Prisons but does not mention the authority to choose between concurrent and consecutive sentences. Thus, the Court reasoned that the most natural reading of the statutes is that the sentencing authority remains with the district court.
The Court also rejected Setser's argument that the federal sentence was impossible to carry out, and therefore unreasonable, because the state court elected to make his state sentences run concurrently. Although acknowledging the potential difficulty, the Court held that any difficulty "arises not from the [federal] sentence, but from the state court's decision to make both state sentences concurrent." Because Setser identified no flaw in the district court's sentence, which was the one under review, the fact that subsequent developments altered the ability to impose that sentence did not create an abuse of discretion.
Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Kagan joined. Justice Breyer filed a dissenting opinion, in which Justices Kennedy and Ginsburg joined.