Opinion analysis: Court approves anticipatory concurrent and consecutive sentences

Last Wednesday in Setser v. United States, the Court held that federal district judges have authority to direct that a criminal sentence be served consecutively or concurrently to a state sentence, even if that state sentence has not yet been imposed.  Justice Scalia was the author of the Court’s decision, which was joined by the Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Kagan.  Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy and Ginsburg.Petitioner Monroe Ace Setser was on probation for a state drug crime when he was again arrested for possessing methamphetamine with intent to distribute.  Setser was indicted in both state and federal court for the second drug offense, and the state also moved in state court to revoke Setser’s probation.

Setser pleaded guilty to the federal crime, and the court imposed a sentence of 151 months’ imprisonment, with that sentence to run concurrently with any later-imposed state sentence for the same instance of drug possession, but consecutively to any state sentence imposed for the probation violation.  Setser appealed, arguing that the court lacked authority to make the consecutive/concurrent determination, but the Fifth Circuit affirmed.

The key statute was 18 U.S.C. § 3584, which discusses concurrent or consecutive sentences when multiple terms “are imposed on a defendant 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.”  Setser argued that Congress’s delineation of those two situations implied that the sentencing court lacked authority to make the concurrent/consecutive determination in situations such as the one he faced – where the defendant was not “already subject to an undischarged term of imprisonment.”

The Court rejected this application of the expressio unius canon because it did not read Section 3584 as a grant of authority to district courts.  (If it had been a grant of authority, then Congress’s specification of the two situations where that authority could be exercised would have implied that no authority was granted for different situations.)  Rather, the Court treated Section 3584 as a recognition of pre-existing, traditional judicial authority to determine the concurrent/consecutive character of sentences.  Although this point was disputed by the dissenting Justices, the Court emphasized that “[j]udges 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.”  Further, the Court noted that the text of Section 3584 “is framed not as a conferral of authority but as a limitation of authority that already exists.”  Thus, the Court held that Section 3584’s specification of two situations in which sentences would be made concurrent or consecutive was not meant to be exclusive.  Rather, those situations are merely “examples of sentencing discretion most frequently encountered.”

A contrary reading of the statute, the Court stressed, would give the Bureau of Prisons authority to determine the concurrent/consecutive issue – a policy result that seemed to bother several Justices at oral argument.  Setser argued that the Bureau possessed such authority under 18 U.S.C. § 3621, which allows the Bureau to designate the place of imprisonment.  By designating the state prison as the place the prisoner would serve his federal sentence, the Bureau could effectively make the federal sentence concurrent with the state one.  Such a result, held the Court, was not only bad policy, but also not the best reading of either Section 3584 (which does not mention the Bureau of Prisons) or Section 3621 (which does mention the Bureau but which does not say anything explicitly about concurrent or consecutive sentences).

Justice Breyer’s dissent characteristically focused on the practical implications of the law.  He argued that until the state sentence is imposed, federal sentencing judges would lack valuable information necessary to decide whether the federal sentence should be served concurrently or consecutively.  In his words, Section 3584 did not contemplate that a sentence would be made consecutive or concurrent to another sentence not yet imposed “[b]ecause the sentencing judge normally does not yet know enough about the behavior that underlies (or will underlie) a sentence that has not yet been imposed.”  Such additional information might include the other sentence itself, as well as whether the behavior underlying the other sentence overlaps with the behavior underlying the present sentence, and how much of an overlap there is, if there is any.

The result of anticipatorily deciding the concurrent/consecutive question, then, would be to create disparities among offenders who should be treated similarly, thus frustrating one principal purpose of the 1984 Sentencing Reform Act to make sentences more uniform.

If the Bureau of Prisons, rather than the sentencing judge, were able to make the concurrent/consecutive determination after the end of the state sentence, the Bureau would have access to all that information.  It thus would be in a better position – because it could decide the matter later – to decide whether the defendant’s sentence should be served concurrently or consecutively.  Neither, in the view of the dissent, is such an exercise of power by the Bureau exceptional.  Until the Sentencing Reform Act, the Bureau’s power to grant or deny parole gave it considerable power to determine sentences.  While the Act limited that power, Justice Breyer argued that allowing the Bureau to make the concurrent/consecutive decision in a case like Setser’s would serve as a “practical accommodation to a fact about the world, namely that the initial sentencing judge typically lacks important sentencing-related information about a second sentence that has not yet been imposed.”