District courts have authority to make a sentence for a federal offense consecutive to an anticipated, but not-yet imposed state sentence. Sentencing Reform Act of 1984, 18 U. S. C. §3584, construed.
It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes . . .were enacted,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989), and the same approach is appropriate here, where the issue concerns a matter of discretion traditionally committed to the Judiciary. Judges 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. See Oregon v. Ice, 555 U. S. 160, 168–169 (2009). And a large majority of the federal appellate courts addressing the question have recognized a similar authority in the context here, where a federal judge anticipates a state sentence that has not yet been imposed. See … United States v. Kanton, 362 F. 2d 178, 179–180 (CA7 1966) (per curiam) …. We find nothing in the Sentencing Reform Act, or in any otherprovision of law, to show that Congress foreclosed the exercise of district courts’ sentencing discretion in these circumstances.
Setser, on state probation for one drug offense, picked up a new state drug charge. The dual sovereignty doctrine worked its magic and the new state charge led to this federal conviction and sentence,. While the state cases were still pending, the district court ordered the federal sentence to run consecutive to any sentence that might be imposed for revocation of probation but concurrent with any sentence arising out of the new state charge. In the event, the state sentences were ordered concurrent to each other. Thus, a nice question was raised: how is it possible to implement the partially consecutive federal sentence in light of the wholly concurrent state sentences? The Court gets around to slicing that Gordian Knot but first, as just seen, holds that a federal court has authority to run its sentence consecutive to a separate sentence not yet imposed. Wisconsin practice isn’t necessarily different, though supporting doctrine appears to be. Thus, as the blockquote indicates, the Court looks to common law to inform federal sentencing jurisdiction; in Wisconsin by contrast, sentencing authority must be found in the statutes, e.g., Donaldson v. State, 93 Wis.2d 306, 310, 286 N.W.2d 817 (1980) (“A court’s authority in sentencing, including the power to impose consecutive sentences for criminal conduct is controlled by statute.”) As a result, Wisconsin courts at one time lacked authority to do what was done here, impose a sentence consecutive to an anticipated but not yet-executed sentence on a pending revocation. See cases cited, id. Subsequent statutory amendment now allows the practice, e.g., State v. Thompson, 208 Wis. 2d 253, 257, 559 N.W.2d 917 (Ct. App. 1997), but the larger point is that in Wisconsin, in apparent contradistinction to the federal approach, the practice is supported by statutory, not common law, authority. On to the insoluble problem of executing the sentence.
Setser argued that the impossibility of its implementation made the federal sentence unreasonable. The Court didn’t buy it:
The difficulty arises not from the sentence, but from the state court’s decision to make both state sentences concurrent. Which of the District Court’s dispositions should prevail: that his federal sentence run consecutively to the state sentence on the parole revocation charge, or that his federal sentence run concurrently with the state sentence on the new drug charge? If the federal sentence is added to the state sentence it will not be concurrent with the new drug charge, and if it is merged in the state sentence it will not be consecutive to the parole revocation charge. This is indeed a problem, but not, we think, one that shows the District Court’s sentence to be unlawful. …
This is where the Bureau of Prisons comes in—which ultimately has to determine how long the District Court’s sentence authorizes it to continue Setser’s confinement. Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment that the federal sentence run concurrently with the state sentence for the new drug charges. If the Bureau initially declined to do so, he may raise his claim through the Bureau’s Administrative Remedy Program. See 28 CFR §542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus. See 28 U. S. C. §2241. We express no view on whether those proceedings would be successful.
In other words, the BOP operates as a safety valve. Maybe, anyway, if fortune smiles on Ace Setser. And if not, then that’s his problem. And it could be your problem, too, if you’ve got a client on a pending state charge who’s just been given a federal sentence ordered consecutive to any new ones. The outcome of Setser appears to assign to the federal courts trumping authority over the structure of future state sentences: even if the state court thinks that its sentence should be concurrent, that determination will have been preempted by a federal district court’s decision to make its sentence consecutive. In any event, if you figure out a strategy for dealing with the impact of a Setser-type disposition on a Wisconsin sentence feel free to use the Comment box below.
Maybe unrelated, maybe not: Wisconsin doctrine precludes a sentence from being “split” so as to run partially concurrent and consecutive with another sentence. That may or may not accurately describe what happened here. Nonetheless, the federal sentence became impossible to implement once the state sentences were ordered concurrent to each other. The Court merely shrugged off the problem: “There will often be late-onset facts that materially alter a prisoner’s position and that make it difficult, or even impossible, to implement his sentence.” Translation: The problem’s yours, not ours. But for whatever it’s worth, State v. Bagnall, 61 Wis. 2d 297, 312, 212 N.W.2d 122 (1973) says this about “split” sentences:
It is clear that terms in the Wisconsin state prison system are to be served concurrently or consecutively, but that a court cannot split a sentence and provide for only part of a term to be served concurrently with another.
The trial court should correct the judgment of conviction to conform to the law and provide that the entire sentence run concurrently with any other outstanding sentence. Therefore, we remand the case for resentencing.
UPDATE: Neil McGinn points out that the discussion in Thompson is expressly limited to probation where sentence has been imposed and stayed, not withheld. (See 208 Wis. 2d at 256-57.) The distinction is meaningful because § 973.15(2)(a) provides that, subject to irrelevant exceptions, the court may make a sentence “concurrent with or consecutive to any other sentence imposed at the same time or previously”: an imposed-and-stayed sentence has been, Thompson holds, “imposed”; but a withheld sentence can’t be similarly characterized. Of course, if withheld-sentence probation is revoked, the ensuing sentence may be made consecutive to the other sentence, but the distinction nonetheless should be kept in mind.