Tuesday, June 14, 2011

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. ยง 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.

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