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November 30, 2011

Could Setser case be a SCOTUS sleeper rather than a sentencing snoozer?

This morning, the Supreme Court is to hear oral argument in a sentencing case, Setser v. United States, which the folks at SCOTUS blog have effectively previewed here.  As that preview explains, at issue "is whether a federal district court may direct that a criminal defendant’s sentence run consecutively with a yet-to-be-imposed sentence that the defendant is expected to receive for a state crime."

I wrote up a preview of the Setser case for the ABA's SCOTUS Preview publication, and I tried to figure out how the statutory construction issue in the Setser case might have broader implications for sentencing law and policy.  I failed, because resolution of the technical statutory issue that produced the circuit split at issue in Setser seems very unlikely to have implications for a broad range of cases.  Maybe others (or today's oral argument) can suggest how Setser could be a sentencing sleeper; for now, I see it as more of a sentencing snoozer.

UPDATE:  The transcripts from today’s oral argument in Sester is now available at this link.  In addition, I received from a kind reader via e-mail this insightful explanation concerning who may care a bunch about Sester:

I suspect that district judges in districts [with federal prisons] would appreciate a decision in Setser that will provide some much needed guidance in consecutive vs. concurrent sentence situations.

I don't know whether Setser will implicate the Bureau of Prisons at all, but the BOP, via 18 U.S.C. § 3621(b) and its internal pro nunc tunc regulations, has a large amount of discretion in determining how sentences from different jurisdictions are served.  It is not uncommon for federal inmates with state and federal sentences to file 2241 petitions when the BOP fails to honor the judgment from one of the sentencing judges that the specific sentence from that judge be served concurrent to the sentence from the judge in the other jurisdiction. I've seen cases where, for example: (1) An inmate had been serving state and federal sentences consecutively when both the state and federal sentencing judges called for concurrent sentences, and (2) the reverse fact pattern of Setser: A case where an inmate was first given a state sentence that was ordered to be served consecutively to a not-yet imposed federal conviction and sentence.... [O]n behalf of the judges and clerks who deal with these issues, hopefully the eventual Setser opinion will provide some guidance on such fact patterns.

November 30, 2011 at 10:08 AM | Permalink


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I don't generally do Federal criminal cases. In Michigan, sentences generally run concurrently. Thus, if my client faces both a Federal and a state charge, the goal is to have sentencing first in Federal court, where sentences run consecutively, because then there is nothing for it to be consecutive to. The later-imposed state court sentence will run concurrently with the Federal sentence. I am usually able to postpone the state sentence past the Federal court sentencing, to help my client in this regard. However, if the Federal sentence will be permitted to run consecutively to a state sentence not yet imposed, my clients in those predicaments will wind up serving a lot more time behind bars. That's the practical difference that I see. Of course, if the state rule elsewhere is that sentences run consecutively, it won't really matter which comes first, except for the location, security level, program offerings, etc., available to the inmate.

Posted by: Greg Jones | Nov 30, 2011 2:28:11 PM

I generally don't do Federal criminal cases. In Michigan, sentences generally run concurrently. Therefore, if my client faces Federal and state charges, the goal is to have the Federal case wrap up first, before sentencing in state court. That way, there is nothing for the Federal sentence to be consecutive to, and my client does less time behind bars. If it will be possible hereafter to have the Federal sentence be "consecutive" to a not-yet-imposed state sentence, my clients facing charges in both courts will serve a lot more time behind bars. Then, the only practical differences will relate to security classifications, eligibility for rehabilitative programs, and the like. Of course, it the state rule is different in other jurisdictions, making state sentences generally consecutive to a previously-imposed Federal sentence, there is likely to be no practical change at all in those places.

Posted by: Greg Jones | Nov 30, 2011 2:37:38 PM

First, I was amazed at the level of interest from the bench for this rather obscure issue. All of the Justices with the physical ability to speak (i.e. the Nine sans Thomas) were involved in questioning in this case. The tenor and substance of her questions made it clear that Justice Sotomayor is the only member of the Court to understand what it means to be a trial judge, to manage a docket, and to make decisions such as these. Justice Breyer's comments (i.e., "I KNOW Congress didn't consider this") made it clear how intimately involved he was with drafting the SRA. Ultimately, however, this is NOT an earth-shattering issue. And to Greg Jones above, I suggest that your comments are not informed by actual experience. As made clear in the briefs, the order of sentencing is not determinative of whether sentences are concurrent or consecutive. If a defendant in primary state custody is writted out to the feds and sentenced in fderal court before he is sentenced in state court, his federal sentence will run CONSECUTIVELY to his state sentence, unless the federal judge either a) expresses a preference for concurrency at the original sentencing, or b) responds to a later BOP letter asking his/her views on concurrent service.

Posted by: anon | Nov 30, 2011 5:52:00 PM

If Setser is affirmed, it allows a District Court, if it chooses, to impose an upward variance (or a sentence greater than the statutory max) without needing to state its reasons, and, without any real accountability.

Also, the federal judge can request a concurrent sentence at re-sentencing, and the BOP will honor it.

There's also a real federalism issue involved -- Setser allows a federal judge to order a state judge how to sentence.

Posted by: = | Dec 1, 2011 10:17:39 AM

The briefing and argument in Sester was very disappointing. The parties, and Justices, barely mentioned the significant federalism issues. Some lower court decisions have considered those issues at length, yet the briefing didn't cite those cases and the Justices mostly seemed oblivious.

Instead, they got caught up in the minutiae, or in their particular pet peeves, while completely missing the larger picture.

Posted by: Anonymous | Dec 1, 2011 12:41:08 PM

But the federalism issues go both ways, federalism is not just federal respect for state decisions but state respect for federal decisions as well (so long as the power grant to the federal government exists to begin with).

I can well see it within a judge's authority to say "The term of imprisonment for this offense shall not count toward fulfilling any other term of imprisonment", which is basically what a consecutive sentence order does. If state judges don't like such orders they should lobby their state legislature for the discretion to not order any term of imprisonment at all where whatever term the feds order is seen to be sufficient.

Posted by: Soronel Haetir | Dec 1, 2011 7:29:34 PM

there already is state respect for federal decisions. BOP will not honor a state judge's order or request that its sentence run concurrent or consecutive to the federal sentence - it does not matter if the federal sentence has or has not yet been imposed. The example soronel provided is one in which a federal court is still usurping a state court's right to sentence. a state court can certainly say that the term it imposes is satisfied by the federal term. how does the united states find redress for a state court imposing a state sentence consistent with state law?

Posted by: = | Dec 1, 2011 9:26:44 PM

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