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Federal Sentence May Be Consecutive To Anticipated State Sentence


Setser v. United States

A District court may order a federal sentence to be served consecutive to an anticipated state sentence

Setser v. United States,132 S. Ct. 1463

Decided: March 28 2012 Supreme Court of the United States

Issue: The issue was over how state and federal sentences “fit together”, and in particular on whether a federal judge has discretion to order a federal sentence to run consecutively or concurrently with an anticipated state sentence.

Holding: The reasonableness standard for reviewing federal sentences requires determination of whether the district court abused its discretion. In the absence of any identified flaw in the District Court’s decision making process, the court was entitled to order the federal sentence to be served consecutively to a state sentence.

Facts: Petitioner Setser was arrested for possessing methamphetamine when he was already serving a 5-year term of probation imposed by a Texas court for another drugs 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. The federal authorities became involved and a federal grand jury indicted Setser for possession with intent to distribute 50 grams or more of methamphetamine. He pleaded guilty. Meanwhile, the state moved to revoke his probation. At the federal sentencing, Setser was given a 151-month sentence and ordered it to run consecutive to any state sentence on the probation violation but concurrent with any state sentence for the current possession charge. Setser appealed.

While his appeal was pending, the state court sentenced Setser to a 5 year prison term for probation violation and 10 years on the new drug charge. It ordered that these sentences be served concurrently. Setser appealed on two main grounds: that the District Court had no authority to order a consecutive sentence in addition to the argument that his federal sentence was unreasonable in that it was impossible to implement in light of the concurrent state sentences.

The Court of Appeals for the Fifth Circuit Affirmed. The U.S. Supreme Court upheld the decision – finding that there was nothing in statute that limits a federal judge’s authority to make such a decision. There was no evidence of any abuse of discretion.

Analysis: This was a 6-3 majority decision with Justice Scalia delivering the lead opinion. The Court stressed that judges have traditionally had broad discretion in being able to choose whether sentences will run concurrently or consecutively – and this includes sentences that have been imposed in other proceedings – including state proceedings. The issue to be decided was how the state and the federal sentences should fit together. Statute (in the form of the Sentencing Reform Act 1984) set out how this should be treated in situations where the defendant faces “multiple terms of imprisonment imposed at the same time”. In Setser’s case however the state sentence was not being imposed at the same time as the federal sentence and he was not already subject to the state sentence.

Setser had attempted to argue that the effect of the SRA was to grant authority to a court to impose consecutive sentences only in those situations where the terms are imposed simultaneously or when the defendant is subject to another undischarged prison sentence. This was rejected. Sure, the SRA was silent on this particular issue. However, given the broad background (i.e. the tradition of broad judicial discretion on this matter), it is more natural to read this absence of authority as leaving room for the exercise of judicial discretion on the consecutive/concurrent question than it is to infer that a court’s hands ought to be tied in the manner Setser was effectively suggesting. 

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.