Cert Grant: May District Court Order Federal Sentence to Run Consecutively to Anticipated, But Yet-to-Be-Imposed State Sentence?

No longer will that question fester, with yesterday's cert grant in Setser. That's Setser v. United States, No. 10-7387, to be exact, a case out of our very own circuit.  The Court also granted cert on a second question concerning the proper interpretation of 18 U.S.C. § 3584(a): "Is it reasonable for a district court to provide inconsistent instructions about how a federal sentence should interact with state sentences?"

It's interesting that the Court has finally decided to resolve these issues, as it has denied cert many times before.  The denials have been particularly maddening because of the position the Government has been taking: it agrees that the Fifth Circuit is wrong, yet it has consistently opposed cert on various grounds that are, to put it charitably, unpersuasive.  Here's one example, from the Solicitor General's brief-in-opposition in this case:

Even if the question presented had some practical significance, in petitioner's case or others, there is reason to believe that the practice of anticipatory consecutive sentencing is becoming less common. Since this case arose, the government has taken steps to ensure that federal prosecutors act consistently with the interpretation of Section 3584(a) discussed above. On January 8, 2009, after the sentence was imposed in this case, the Executive Office for United States Attorneys informed all United States Attorneys' Offices that the Solicitor General, on behalf of the Department of Justice, had adopted that interpretation. In accompanying guidance, all federal prosecutors were directed to urge sentencing courts not to order that a sentence run consecutively to (or concurrently with) a yet-to-be-imposed sentence. Although some district courts have continued to impose such sentences even after the government expressed its position, the government will not defend such an order except where circuit precedent (or the plain-error standard of review) dictates otherwise.

As usual, you can find the cert-stage pleadings on SCOTUSblog's case page.  And don't forget to preserve the issue. Whether or not the SG is correct about the prevalence of consecutive-sentence orders, they're not exactly as rare as hen's teeth in our neck of the woods.

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.

Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence

United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)

If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to any other sentence, even though the sentence for the original offense—as required by the terms of the plea agreement—ran concurrently with an already-imposed state sentence? That question, and others concerning plain error and reasonableness review (including a circuit split!), are answered in Whitelaw.

The lengthy backstory:

Alan Whitelaw was convicted of theft of money in an amount exceeding $200,000 in state court and was sentenced to 60 years of imprisonment. Whitelaw subsequently pleaded guilty to federal bank fraud charges in the Southern District of Texas. While the same type of fraudulent conduct was the basis for both of Whitelaw’s convictions, the federal and state convictions involved different specific conduct, dates, and victims.

Although Whitelaw pleaded guilty to the federal charge without a written plea agreement, the Government made an oral agreement at rearraignment that it would recommend that Whitelaw’s sentence run concurrently with his state court sentence. The district court accepted the agreement as a plea agreement under FED. R. CRIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to withdraw his guilty plea if it did not order that his sentence run concurrently with his state court sentence. The district court sentenced Whitelaw to 46 months of imprisonment, the sentence to run concurrently with his state court sentence, and five years of supervised release.

For reasons not explained in the opinion, Whitelaw was released from state prison after serving just five years of his sentence. He then began serving his federal supervised release term.

A little over three years later, Whitelaw was arrested on a revocation violation warrant. The Government then filed two motions to revoke Whitelaw's supervised release, the latter of which alleged six violations, including "committing the felony offense of theft of copper wire valued in excess of $1,000 or possession of stolen copper wire valued in excess of $1,000," lying to his probation officer about it (both orally and with forged documents), and technical violations.

After a hearing, the court found all but one of the alleged violations (a failure to report) to be true. Whitelaw requested a sentence at the low end of the advisory 4- to 10-month Guidelines range. The court instead sentenced him to 36 months—the statutory maximum—"and ordered that sentence run consecutively to any other state or federal sentence."

Following the revocation of his supervised release, Whitelaw filed a pro se motion that included a claim that he should be allowed to withdraw his guilty plea because his sentence upon the revocation of supervised release was not ordered to run concurrently with any state court sentence he received. The district court struck the motion because Whitelaw was represented by counsel and, therefore, not entitled to make pro se filings. In the alternative, the district court denied the motion on its merits.

Which finally gets us to the issues on appeal . . .

Standard of Review
For at least the third time, the court declined to decide whether revocation sentences are reviewed for reasonableness or plain unreasonableness, because all the issues Whitelaw raised were subject to plain error review:

• "Whitelaw did not raise any of the specific claims of procedural error that he argues in this appeal when he was before the district court for sentencing[,]" so plain error review for those (failure to consider the policy statements in Chapter 7 of the Guidelines Manual, and an inadequate statement of reasons for the sentence).
• Whitelaw's motion challenging the consecutiveness order "was stricken by the district court because Whitelaw was represented by counsel. Accordingly, Whitelaw did not properly raise this claim of specific legal error below, and this court reviews it for plain error only."
• "Whitelaw also did not object to the substantive reasonableness of the sentence below. Whitelaw’s contest of the revocation charges and request for a sentence at the low end of the guidelines range are insufficient to preserve the substantive reasonableness of the sentence for review." See Peltier. (But don't forget that circuit split.)

No Error In Running Sentence Consecutive to Any Other Sentence, Notwithstanding Plea Agreement on Original Offense
Whitelaw challenged the consecutive order on his revocation sentence on two grounds, both of which the court rejected. First, he argued that the district court didn't indicate it realized that it could order the sentence to run concurrently with any other sentence. While the district court didn't specifically acknowledge it's discretion in the matter, the Government asked for the revocation sentence to run consecutively, and the district court express doubt that it could do that. "In the absence of evidence to the contrary, this court assumes that the district court knows the law and applies it correctly[,]" so no plain error.

Second, Whitelaw argued that the terms of his original plea agreement required any revocation sentence to run concurrently to any other sentence, as was the case with his original sentence. Not so, said the court. The rearraignment transcript wasn't in the record, but the PSR

describes the plea agreement as requiring that Whitelaw’s sentence run concurrently with the state court sentence Whitelaw was then serving. We see no indication that the plea agreement applied to any sentence other than for the crime upon which he was charged. The judgment of conviction provides only that Whitelaw’s sentence of imprisonment would run concurrently with the state court sentence that Whitelaw was then serving; it did not impose any restrictions upon possible sentences that could be imposed if Whitelaw’s later term of supervised release was revoked.

(emphasis added). Is that right? It may be the case that the plea agreement didn't purport to cover what would happen in the event of a revocation of supervised release (and given the lack of a written plea agreement or a rearraignment transcript, it's impossible to say the court's wrong about that). But to the extent that the court is suggesting that a revocation sentence is for a crime other than the one for which a defendant was originally convicted, the court applies a mistaken understanding of revocation. As the Supreme Court explained in Johnson v. United States, a post-revocation sanction is an additional punishment for the original offense, not a punishment for the violation of the terms of release. 529 U.S. 694, 699–701 (2000). Treating post-revocation sanctions as punishment for violations of conditions of supervised release would raise "serious constitutional questions," given that "the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Id. at 700. The court doesn't address Johnson here, but it's something to keep in mind if you find yourself with a case similar to Whitelaw.

Whitelaw Failed to Show that the District Court Failed to Consider the Guidelines' Revocation Policy Statements
Whitelaw argued on appeal that the district court failed to consider the Chapter 7 policy statements. But the court of appeals held that he failed to show that, because 1) the district court correctly calculated the advisory revocation range and referred to it before imposing sentence, 2) "[d]efense counsel referred to that range in its argument[,]" and 3) the Government also referred to that range in its motions to revoke, and "made arguments for an above range sentence related to the § 3553(a) factors[.]"

District Court Plainly Erred in Failing to State Reasons for the Sentence, but That Error Did Not Affect Whitelaw's Substantial Rights Because the Record Reveals the Reasons
Given that the district court imposed a sentence that was more than three times the high end of the advisory Guidelines range, Rita required some explanation. The district court gave no reasons. That was clear and obvious error. But did the error affect Whitelaw's substantial rights? And how does the court of appeals assess that?

As it turns out, up until now the Fifth Circuit "ha[d] not yet applied plain error review to a district court’s failure to state reasons for an above guideline sentence." (emphasis added). As you'll recall, Mondragon-Santiago reviewed such an error in the context of a within-Guidelines sentence. It held that that the defendant must "show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon-Santiago rejected the approach of "other circuits [that] have relaxed this requirement in the sentencing context[.]"

But given that Mondragon-Santiago involved a within-Guidelines sentence, Whitelaw had to decide whether that approach to the third plain-error prong also applies to review of above-Guidelines sentences. To that end, Whitelaw canvassed what appears to be a circuit split on the question:

In cases involving above guidelines sentences, the D.C. Circuit and the Second Circuit have relaxed the showing required by a defendant to demonstrate that the error affected the defendant’s substantial rights. These courts reason that the absence of a statement of reasons affects the appellate court’s ability to perform a meaningful review of the sentence. Both circuits also conclude that the failure to state reasons undermines “the public reputation of judicial proceedings” because the statement of reasons indicates to the public that the sentencing judge has thoughtfully discharged his responsibilities and demonstrates that the judgment is not arbitrary. [So has the Sixth Circuit.]

Other circuits have declined to follow that lead. The Tenth Circuit affirmed a below guidelines sentence in which the government argued procedural error for failure of the sentencing court to cite reasons for a downward departure. The Tenth Circuit refused to find that the error affected the government’s substantial rights because, applying traditional plain error analysis, the government could not explain how a more detailed reasoning process might have led the court to select a higher sentence. In other words, the government could not show that the error made a difference in the sentencing outcome. The court refused to presume prejudice.

(cites omitted). Ultimately, Whitelaw found it unnecessary to take sides on this question, because "our review of the record reveals the reasons for Whitelaw’s sentence, even if not explicitly stated by the district court." The revocation hearing was extensive. The district court heard evidence, and both parties presented sentencing arguments. "The government then urged the court to sentence Whitelaw to 36 months in prison (the statutory maximum) for the five reasons set forth in its motion to revoke and that the sentence be consecutive to any other sentence. The district court then granted the government’s motion and sentenced Whitelaw to the government’s recommended 36 month term of imprisonment." (By the way, a portion of the Government's motion is reproduced in the opinion, and is predictably purple.) The court then reaches this troubling conclusion:

We have no trouble concluding that by granting the government’s Motion to Revoke and sentencing Whitelaw to the term of imprisonment recommended and supported in that motion, the district court implicitly adopted the government’s rationale for that sentence as set forth in the motion. These reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting them is implicit in the district court’s findings that most of the revocation charges were true. By reviewing the record of the sentencing proceedings in this case, we are able to conduct a meaningful appellate review. Accordingly, the district court’s failure to state these reasons on the record has not prejudiced Whitelaw.

Will that give prosecutors an incentive to paper the case with overheated arguments for a stiff revocation sentence, in hopes that the district court won't state reasons of its own? Perhaps. If possible, you might consider trying to blunt the effect of such pleadings with your own written submission (which may or may not be possible, depending on whether the releasee challenges the alleged violations, and on whether the court will allow time for written arguments before deciding on a disposition). Of course, it's also a good reason to object to procedural errors at the hearing so you're not stuck with plain error review in the first place.

On Review for Substantive Reasonableness, Whitelaw's Sentence was not Plain Error
After all that, the court's resolution of Whitelaw's substantive reasonableness challenge was pretty brief. The court simply said that because the sentence did not exceed the statutory maximum, it wasn't plain error, citing other Fifth Circuit opinions that also so held. Is the court relying on a broader principle that a sentence within the statutory range can never be plain error? If so, that sounds questionable. Hopefully, the court is just saying that, as a descriptive matter, such sentences will have a very hard time satisfying all four plain error prongs. And given the poor track record of preserved substantive reasonableness challenges, that's probably true.

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.

Court May Not Order Sentence to Run Consecutively to Anticipated, But Not-Yet-Imposed, Federal Sentence

United States v. Quintana-Gomez, No. 07-10139 (5th Cir. Mar. 25, 2008) (Jolly, Barksdale, Benavides)

May a district court order that a sentence run consecutively to an anticipated, but not-yet-imposed, federal sentence? Nope.

Let's get a little more concrete. Quintana pleaded guilty to illegal reentry in the Northern District of Texas. At that time, he had a supervised release revocation petition pending in the Southern District. The Northern District judge sentenced Quintana to 57 months on the new case, and ordered the sentence to run consecutively to any sentence Quintana might receive on revocation. Later, the Southern District judge revoked Quintana's supervised release, sentenced him to six months' imprisonment, and ordered the sentence to run concurrently to the 57-month sentence for the new case.

Quintana appealed the Northern District judgment, arguing that when an unstoppable force meets an immovable object . . . wait, that's not right . . . (leafing through opinion) . . . ah, here it is: Quintana argued that the court lacked authority to order the sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence. He contended that under the plain language of 18 U.S.C. § 3584, a court may order a sentence to run consecutively only if 1) "multiple terms of imprisonment are imposed on a defendant at the same time," or 2) "a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment[.]"

The Government countered that the Fifth Circuit's decision in United States v. Brown foreclosed Quintana's argument. Relying on the doctrine of dual sovereignty, Brown held that § 3584 doesn't preclude a federal court from ordering its sentence to run consecutively to any not-yet-imposed state sentence. (As Quintana-Gomez mentions in a footnote, there's a long-standing circuit split on this issue.)

The court here rejected the Government's reliance on Brown, pointing out that the opinion did not discuss the dual-sovereignty concerns, or the actual text of § 3584(a), in great detail. In fact, the dual-sovereignty rationale of Brown distinguishes it from this case, which involves a battle of wills between two courts of the same sovereign. Also, "it should be noted that the Brown panel did not hold that the state court was so legally bound by the federal court’s order that the state court could not order its sentence to run concurrently with the federal sentence if it chose to do so."

Instead, the court agreed with Quintana's argument, finding the Fourth Circuit's decision in United States v. Smith persuasive on this question. Smith reasoned that "allow[ing] one federal court to order that its sentence run consecutively to or concurrently with an anticipated but not-yet-imposed federal sentence 'would place one federal court in the position of abrogating the sentencing authority of another[,]'" a result Congress likely did not intend. Additionally, a court making the consecutive-vs.-concurrent determination must consider the § 3553(a) factors, and "'[o]nly a court that sentences a defendant already subject to an undischarged term of imprisonment could properly consider whether a consecutive or concurrent sentence best serves the goals of § 3553(a), as only that court knows the circumstances attending the later sentence.'"

So Quintana wins, right? No. Well, maybe.

You see, Quintana did not object to the Northern District's order that the 57-month sentence run consecutively to any revocation sentence. So the court of appeals reviewed for plain error. And it concluded that even though there was error, it wasn't "plain" because the Fifth Circuit hadn't yet addressed this question and Brown "at least arguably indicated" otherwise. But then there's this intriguing footnote:

Because the Northern District Court was without authority to order that its sentence run consecutively, its order, in this limited respect, is without effect and may be disregarded by the Federal Bureau of Prisons in the light of this holding.

For discussion:

1) Anyone know how the BOP actually handles situations like this?

2) The court added, in addition to its statutory holding, that "as a general principle, one district court has no authority to instruct another district court how, for a different offense in a different case, it must confect its sentence." Might that (dicta?) be the more important part of this opinion?

(Helpful diagram courtesy of Wikipedia)