Split Remains Over Whether Court May Order Federal Sentence to Run Consecutively to Not Yet Imposed State Sentence

United States v. Setser, No. 08-10835 (5th Cir. May 11, 2010) (Benavides, Stewart, Southwick)

May a district court order that the federal sentence it imposes run consecutively to an anticipated, but not yet imposed, state sentence? The answer is found in 18 U.S.C. § 3584(a). And that answer, per the Fifth Circuit's 1991 decision in United States v. Brown, is yes. Other circuits disagree. So does the Government. Yet Brown remains good law. But for how long? Here's what Setser has to say on the subject:

[T]here are only two ways in which Brown’s posture as binding precedent in this Court could change: 1) an intervening decision by the Supreme Court or 2) a superseding decision by this Court sitting en banc. The Supreme Court, to date, has issued no intervening decision. Further, this Court has recently declined the opportunity to reconsider Brown en banc.**

Footnote ** relates the backstory:

In United States v. Garcia-Espinoza, No. 08-10775, 2009 WL 1362199 at *1 (5th Cir. May 15, 2009) (unpublished), this Court rejected a defendant’s challenge to his consecutive sentence, holding that his “challenge is foreclosed by our prior precedent.” However, in light of the circuit split concerning a district court’s discretion to order a federal sentence to run consecutively to an undischarged state sentence, Judge Owen and Judge Dennis, in their joint concurrence, recommended that the Court revisit the Brown holding en banc. Id. at *2. Yet when Garcia-Espinoza filed a motion for rehearing en banc, “[n]o member of the panel nor judge in regular active service on the court . . . requested that the court be polled” on a rehearing en banc. As a result, the Court denied the defendant-appellant’s motion on April 13, 2009. Thus, given this Court’s recent refusal to reconsider Brown en banc, any future reversal of the Court’s decision in Brown is best left to the discretion of our Supreme Court.

Note that the Supreme Court recently denied two cert petitions presenting this issue.