Panel Members Call for En Banc Reconsideration of Whether Federal Sentence May Be Ordered to Run Consecutively to Yet-To-Be-Imposed State Sentence

United States v. Garcia-Espinoza, No. 08-10775 (5th Cir. May 15, 2009) (per curiam) (unpublished)

Sometimes you find the most interesting things in unpublished opinions. Like a call for the court to reconsider earlier precent en banc in light of 1) a long-standing circuit split, and 2) the Government's belief that the earlier precedent was wrongly decided.

In this case, the split is over whether 18 U.S.C. § 3584(a) permits a district court to order that a federal sentence run consecutively to an anticipated, but yet-to-be-imposed, state sentence. Nearly two decades ago, in United States v. Brown, 920 F.2d 1212, the Fifth Circuit answered that question "yes." Over the years, some circuits have reached the same conclusion as Brown, while others have disagreed, creating at least a 4-4 split.

Which brings us to Mr. Garcia's case. At his sentencing for illegal reentry, the district court "ordered his federal sentence to run consecutively to a not-yet-imposed state sentence." Garcia appealed, and the panel affirmed the sentence due to Brown.

Judge Owen, joined by Judge Dennis (but not Judge King, who was also on the panel), concurred, suggesting that the court should reconsider the issue en banc. Not only because of the circuit split, but also because the Government now says that the Fifth Circuit "in an appropriate case, should overrule or modify United States v. Brown [citations omitted] and hold that 18 U.S.C. § 3584(a) does not authorize a district court to order that the federal term of imprisonment be served consecutively to a yet-to-be-imposed state sentence." (second alteration in Garcia-Espinoza). That's not to say the Government believes Garcia-Espinoza to be an appropriate case:

The Government contends that we should not revisit Brown in the present case because the defendant has now served his state sentence and cannot receive credit toward his federal sentence, thus making this matter moot. I disagree. The Bureau of Prisons (BOP) has the authority to implement a concurrent sentence by retroactively designating the state prison in which the defendant served his state sentence as the place for service of his federal sentence as well. Thus, if we were to vacate and remand for resentencing and the district court imposed a concurrent sentence, the BOP could still implement that sentence notwithstanding the fact that the defendant has already served the entirety of his state sentence in a state prison.

Intriguing. Make sure you preserve the issue. (Wouldn't hurt to keep that anti-mootness argument handy, too.) You could also ask the district judge not to do this in the first place, citing the Government's position as support.