throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2011
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`
`
` SETSER v. UNITED STATES
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE FIFTH CIRCUIT
` No. 10–7387. Argued November 30, 2011—Decided March 28, 2012
`
`
` When petitioner Setser was indicted in a Texas court on drug charges,
`the State also moved to revoke the probation term that he was then
`serving for another drug offense. At about the same time, Setser
`
` pleaded guilty to federal drug charges. The Federal District Court
`imposed a 151-month sentence to run consecutively to any state sen-
`tence imposed for the probation violation, but concurrently with any
`state sentence imposed on the new drug charge. While Setser’s fed-
`eral appeal was pending, the state court sentenced him to 5 years for
`
`the probation violation and 10 years for the drug charge, but ordered
`the sentences to be served concurrently. The Fifth Circuit affirmed
`the federal sentence, holding that the District Court had authority to
`order a sentence consecutive to an anticipated state sentence, and
`that Setser’s sentence was reasonable, even if the state court’s deci-
`sion made it unclear exactly how to administer it.
`Held:
`
`
`1. The District Court had discretion to order that Setser’s federal
`
`sentence run consecutively to his anticipated state sentence for the
`probation violation. Pp. 2–12.
`(a) Judges have traditionally had broad discretion in selecting
`whether the sentences they impose will run concurrently or consecu-
`tively 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. The statutory text and struc-
`ture do not foreclose a district court’s exercise of this discretion with
`respect to anticipated state sentences. The Sentencing Reform Act of
`1984 addresses the concurrent-vs.-consecutive decision, but not the
`situation here, since the District Court did not impose “multiple
`
`terms of imprisonment . . . at the same time,” and Setser was not “al-
`
`
`
`
`
`
`
`
`
`

`
`2
`
`
`
`SETSER v. UNITED STATES
`
`
`Syllabus
`
`ready subject to” the state sentences at issue, 18 U. S. C. §3584(a).
`This does not mean, as Setser and the Government claim, that the
`District Court lacked authority to act as it did and that the Bureau of
`Prisons is to make the concurrent-vs.-consecutive decision after the
`federal sentence has been imposed. Section 3621(b), from which the
`Bureau claims to derive this authority, says nothing about concur-
`rent or consecutive sentences. And it is more natural to read
`§3584(a) as leaving room for the exercise of judicial discretion in sit-
`uations not covered than it is to read §3621(b) as giving the Bureau
`
`
`what amounts to sentencing authority. Setser’s arguments to the
`contrary are unpersuasive. Pp. 2–8.
`
`
`(b) None of the other objections raised by Setser and the Gov-
`
`
`ernment requires a different result. Pp. 8–12.
`
`
`2. The state court’s subsequent decision to make the state sentenc-
`
`es run concurrently does not establish that the Federal District Court
`imposed an unreasonable sentence. The difficulty here arises not
`from the federal-court sentence—which is to run concurrently with
`one state sentence and consecutively with another—but from the
`state court’s decision. Deciding which of the District Court’s disposi-
`tions should prevail under these circumstances is a problem, but it
`does not show the District Court’s sentence to be unlawful. The rea-
`
`sonableness standard for reviewing federal sentences asks whether
`the district court abused its discretion, see Gall v. United States, 552
`
`U. S. 38, 46, but Setser identifies no flaw in the District Court’s deci-
`sionmaking process, nor anything available at the time of sentencing
`that the court failed to consider. Where late-onset facts make it diffi-
`
`cult, or even impossible, to implement the sentence, the Bureau of
`Prisons may determine, in the first instance, how long the District
`
`Court’s sentence authorizes it to continue Setser’s confinement, sub-
`ject to the potential for judicial review. Pp. 12–14.
`607 F. 3d 128, affirmed.
`SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
`
`
`C. J., and THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. BREYER,
`
`
`
`
` J., filed a dissenting opinion, in which KENNEDY and GINSBURG, JJ.,
`
`
`joined.
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
`
`
`_________________
`
` No. 10–7387
`_________________
` MONROE ACE SETSER, PETITIONER v. UNITED
`
`STATES
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE FIFTH CIRCUIT
`
`
`[March 28, 2012]
`
` JUSTICE SCALIA delivered the opinion of the Court.
`
`We consider whether a district court, in sentencing a de-
`fendant for a federal offense, has authority to order that
`the federal sentence be consecutive to an anticipated state
`
`sentence that has not yet been imposed.
`I
`
`When officers of the Lubbock Police Department ar-
`rested petitioner Monroe Setser for possessing metham-
`phetamine, he was already serving a 5-year term of proba-
`
`tion imposed by a Texas court for another drug offense.
`Setser was indicted in state court for possession with intent
`to deliver a controlled substance, and the State also moved
`to revoke his term of probation. As often happens in drug
`cases, the federal authorities also got involved. A federal
`grand jury indicted Setser for possessing with intent to
`distribute 50 grams or more of methamphetamine, 21
`U. S. C. §841(a)(1), (b)(1)(A)(viii), and he pleaded guilty.
`
`Before the federal sentencing hearing, a probation of-
`ficer calculated the applicable Guidelines range to be 121
`to 151 months’ imprisonment. Citing precedent from
`the United States Court of Appeals for the Fifth Circuit,
`
`
`
`
`
`
`
`

`
`2
`
`
`
`
`
`
`
`
` SETSER v. UNITED STATES
`
`Opinion of the Court
`United States v. Brown, 920 F. 2d 1212 (1991) (per curiam),
`he indicated that the District Court had discretion to make
`Setser’s sentence either concurrent with or consecutive to
`any sentence anticipated in the separate state-court pro-
`ceedings. Setser objected, arguing that the District Court
`lacked such authority. The court nevertheless made the
`sentence of 151 months that it imposed consecutive to any
`
`state sentence imposed for probation violation, but concur-
`rent with any state sentence imposed on the new drug
`charge. Setser appealed.
`While Setser’s appeal was pending, the state court
`
`sentenced him to a prison term of 5 years for probation
`violation and 10 years on the new drug charge. It ordered
`that these sentences be served concurrently. Setser then
`made before the Court of Appeals, in addition to the ar-
`gument that the District Court had no authority to order a
`consecutive sentence, the argument that his federal sen-
`tence was unreasonable because it was impossible to
`
` implement in light of the concurrent state sentences.
`The Court of Appeals for the Fifth Circuit affirmed. 607
`
`F. 3d 128 (2010). Following its earlier Brown decision, the
`court held that the District Court did have authority to
`order a consecutive sentence. 607 F. 3d, at 131–132. It
`also held that Setser’s sentence was reasonable, even if it
`
`was “‘partially foiled’” by the state court’s decision. Id., at
`132–133. We granted certiorari, 564 U. S. ___ (2011), and
`
`appointed an amicus curiae to brief and argue this case in
`support of the judgment below, 564 U. S. ___ (2011).
`
`II
`
`Before proceeding further, it is important to be clear
`
`about what is at issue. Setser does not contend that his
`federal sentence must run concurrently with both state
`
`sentences imposed after his federal sentencing hearing.
`He acknowledges that someone must answer “the consecu-
`tive versus concurrent question,” Brief for Petitioner 27,
`
`
`
`
`
`
`
`
`
`

`
`3
`
`
`
`
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`and decide how the state and federal sentences will fit
`
`together. The issue here is who will make that decision,
`
`which in turn determines when that decision is made.
`One possible answer, and the one the Fifth Circuit gave, is
`that the decision belongs to the Federal District Court at
`the federal sentencing hearing.
`
`The concurrent-vs.-consecutive decision has been ad-
`dressed by §212(a) of the Sentencing Reform Act of 1984,
`18 U. S. C. §3584, reproduced in full as Appendix A, infra.
`
`The first subsection of that provision, which says when
`concurrent and consecutive sentences may be imposed,
`and specifies which of those dispositions will be assumed
`in absence of indication by the sentencing judge, does not
`cover the situation here. It addresses only “multiple terms
`of imprisonment . . . imposed . . . at the same time” and “a
`
`term of imprisonment . . . imposed on a defendant who is
`
`already subject to an undischarged term of imprisonment.”
`§3584(a). Here the state sentence is not imposed at the
`same time as the federal sentence, and the defendant was
`not already subject to that state sentence.
`
`Setser, supported by the Government, argues that, be-
`cause §3584(a) does not cover this situation, the District
`Court lacked authority to act as it did; and that the
`concurrent-vs.-consecutive decision is therefore to be made
`by the Bureau of Prisons at any time after the federal sen-
`tence has been imposed. The Bureau of Prisons is said to
`derive this authority from 18 U. S. C. §3621(b) (2006 ed.
`
`and Supp. IV), reproduced in full as Appendix B, infra.
`
`On its face, this provision says nothing about concurrent
`or consecutive sentences, but the Government explains its
`
`position as follows: Section 3621(b) gives the Bureau the
`authority to order that a prisoner serve his federal sen-
`tence in any suitable prison facility “whether maintained
`by the Federal Government or otherwise.” The Bureau
`may therefore order that a prisoner serve his federal
`
`
`
`sentence in a state prison. Thus, when a person subject to
`
`
`
`
`
`

`
`
`SETSER v. UNITED STATES
`
`Opinion of the Court
`a federal sentence is serving a state sentence, the Bureau
`may designate the state prison as the place of impris-
`onment for the federal sentence—effectively making the
`two sentences concurrent—or decline to do so—effec-
`tively making them consecutive.1 Based on §§3584(a)
`and 3621(b), Setser and the Government argue that the
`concurrent-vs.-consecutive decision, under the circum-
`stances presented here, is committed exclusively to the
`Bureau of Prisons.
`
`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 con-
`cerns 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 Ore-
`gon 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 con-
`text here, where a federal judge anticipates a state sen-
`tence that has not yet been imposed. See Salley v. United
`States, 786 F. 2d 546, 547 (CA2 1986); Anderson v. United
`
`States, 405 F. 2d 492, 493 (CA10 1969) (per curiam); United
`
`
`States ex rel. Lester v. Parker, 404 F. 2d 40, 41–42 (CA3
`
`
`1968) (per curiam); United States v. Kanton, 362 F. 2d 178,
`179–180 (CA7 1966) (per curiam); but see United States v.
`
`
`
`
`
`4
`
`
`——————
`1The Bureau of Prisons sometimes makes this designation while the
`
` prisoner is in state custody and sometimes makes a nunc pro tunc
`
` designation once the prisoner enters federal custody.
`
`
`
`

`
`
`
`
`
`
`Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`Eastman, 758 F. 2d 1315, 1317 (CA9 1985)2. We find
`nothing in the Sentencing Reform Act, or in any other
`provision of law, to show that Congress foreclosed the
`exercise of district courts’ sentencing discretion in these
`circumstances.
`Setser’s main contention is that §3584(a) has this effect.
`
`But that provision cannot sustain the weight that Setser
`asks it to bear. In essence, he reads the first sentence in
`§3584(a) to say that “terms [of imprisonment] may run
`concurrently or consecutively” only “[i]f multiple terms of
`imprisonment are imposed . . . at the same time, or if a
`term of imprisonment is imposed on a defendant who is
`——————
` 2The dissent is incorrect to say, post, at 7–8 (opinion of BREYER, J.),
`
`
`
` that only the Second Circuit, in Salley held to that effect. So did the
`
`
` Seventh Circuit in Kanton and the Tenth Circuit in Anderson. The
`
`
` dissent says that Anderson addressed only the question “whether a
`
`
`federal sentence runs from the date of its imposition or from the date of
`entry into federal custody,” post, at 7–8. That is true enough (and it is
`
` true of Kanton as well); but answering that question in a manner that
`upheld the consecutive federal sentence (i.e., it runs from the date of
`
` entry into federal custody) necessarily upheld the sentencing court’s
`authority to impose the consecutive federal sentence. In fact, Ander-
`son confronted and specifically rejected the defendant’s argument that
`
`“ ‘[n]o court has the authority to impose a sentence consecutive to
`
`something that does not exist,’ ” 405 F. 2d, at 493. And, finally, so did
`
`the Third Circuit in Lester. The dissent says that Lester addressed only
`the question “whether a sentence was insufficiently certain for pur-
`
`poses of due process,” post, at 8. But that was the defendant’s princi-
`pal reason (as it appears also to be the dissent’s principal reason) for
`asserting that the sentencing court had no authority to impose a
`
`consecutive sentence. And the Third Circuit rejected not only that
`
`
`reason but “[o]ther arguments advanced by [the defendant] ” attacking
`
`the consecutive sentence, 404 F. 2d, at 42.
`The only contrary federal appellate decision rendered before the Sen-
`tencing Reform Act took effect relied upon 18 U. S. C. §4082 (1982 ed.)
`(the predecessor of §3621) and §3568 (1982 ed.) (repealed by 98 Stat.
`
`
`1987), which provided that a federal sentence “shall commence to run
`
`from the date on which such person is received” into federal custody.
`See United States v. Eastman, 758 F. 2d 1315, 1317 (CA9 1985).
`
`
`
`
`5
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`6
`
`
`
`SETSER v. UNITED STATES
`
`Opinion of the Court
`already subject to an undischarged term of imprisonment.”
`Since the District Court was not imposing the state sen-
`tence and since it was not already imposed, the sentence
`could not be ordered to run consecutively. But if the text
`
`is exclusive—if the addition of only is correct—the provi-
`sion forbids not only the imposition of consecutive sen-
`tences, but the imposition of concurrent ones as well. And
`yet, as Setser acknowledges, it must be one or the other;
`someone must decide the issue.
`
`Setser’s response is that, read in context, the sentence
`
`speaks only to district courts. Under the circumstances at
`issue here, he says, the federal and state sentences still
`might run either concurrently or consecutively, but just
`not at the discretion of the District Court. That is an odd
`parsing of the text, which makes no distinction between
`the district court and the Bureau of Prisons. The place-
`ment of §3584 does indeed suggest that it is directed at
`district courts—but that is likely because Congress con-
`templated that only district courts would have the author-
`ity to make the concurrent-vs.-consecutive decision, not
`
`because Congress meant to leave the Bureau unfettered.
`
`Indeed, the Bureau already follows the other directives in
`§3584(a). See Brief for United States 35. For example, if
`the district court imposes multiple terms of imprisonment
`
`at the same time, but fails to address the concurrent-vs.-
`consecutive issue, the terms “run concurrently,” §3584(a),
`
`and the Bureau is not free to use its “place of imprison-
`
` ment” authority to achieve a different result.3
`The Latin maxim on which Setser relies—expressio
`
`
`——————
`3The Government contends that the Bureau applies the default rules
`
`
` in §3584(a) “[a]s a matter of discretion” but is not “ ‘bound’ ” by that
`
`
` subsection. Reply Brief for United States 15, n. 5. We think it implau-
`
`
`sible that the effectiveness of those rules—of §3584(a)’s prescription, for
`
`example, that “[m]ultiple terms of imprisonment imposed at different
`times run consecutively unless the court orders that the terms are to
`
` run concurrently”—depends upon the “discretion” of the Bureau.
`
`
`
`
`
`
`
`

`
`
`
`7
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`unius est exclusio alterius—might have application here if
`the provision in question were a conferral of authority on
`district courts. Giving sentencing authority in only speci-
`fied circumstances could be said to imply that it is with-
`held in other circumstances. Section 3584, however, is
`framed not as a conferral of authority but as a limitation
`of authority that already exists (and a specification of
`what will be assumed when the exercise of that authority
`is ambiguous). It reads not “District courts shall have
`
`authority to impose multiple terms of imprisonment on a
`defendant at the same time, etc.” but rather “If multiple
`terms of imprisonment are imposed on a defendant at
`
`the same time, [etc.]”—quite clearly assuming that such au-
`thority already exists. The mere acknowledgment of the
`existence of certain pre-existing authority (and regulation
`of that authority) in no way implies a repeal of other pre-
`existing authority. And that is especially true when there
`is an obvious reason for selecting the instances of pre-
`existing authority that are addressed—to wit, that they
`are the examples of sentencing discretion most frequently
`encountered.
`Moreover, expressio unius est exclusio alterius is a
`double-edged sword. Setser thinks it suggests that, because
`§3584(a) recognizes judicial discretion in scenario A and
`scenario B, there is no such discretion in scenario C. But
`the same maxim shows much more convincingly why
`§3621(b) cannot be read to give the Bureau of Prisons
`exclusive authority to make the sort of decision committed
`to the district court in §3584(a). When §3584(a) specific-
`ally addresses decisions about concurrent and consecutive
`sentences, and makes no mention of the Bureau’s role in
`the process, the implication is that no such role exists.
`And that conclusion is reinforced by application of the
`same maxim (properly, in this instance) to §3621(b)—
`which is a conferral of authority on the Bureau of Prisons,
`but does not confer authority to choose between concur-
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` SETSER v. UNITED STATES
`
`Opinion of the Court
`rent and consecutive sentences. Put to the choice, we
`believe it is much more natural to read §3584(a) as not
`containing an implied “only,” leaving room for the exercise
`of judicial discretion in the situations not covered, than it
`is to read §3621(b) as giving the Bureau of Prisons what
`amounts to sentencing authority.
`
`III
`
`None of the other objections to this approach raised by
`
`Setser and the Government require a different result.
`Our decision today follows the interpretive rule they
`
`
`invoke, that we must “give effect . . . to every clause and
`
`
`word” of the Act. United States v. Menasche, 348 U. S.
`
`
`528, 538–539 (1955) (internal quotation marks omitted).
`
`The first sentence in §3584(a) addresses the most common
`situations in which the decision between concurrent and
`consecutive sentences must be made: where two sentences
`are imposed at the same time, and where a sentence is
`imposed subsequent to a prior sentence that has not yet
`been fully served. It says that the district court has dis-
`cretion whether to make the sentences concurrent or
`consecutive, except that it may not make consecutive a
`sentence for “an attempt” and a sentence for an “offense
`that was the sole objective of the attempt.” And the last
`two sentences of §3584(a) say what will be assumed in
`those two common situations if the court does not specify
`that the sentence is concurrent or consecutive. Giving
`those dispositions full effect does not demand that we
`regard them as eliminating sentencing discretion in other
`
`situations.
`
`Setser and the Government both suggest that, because
`§3584(b) directs courts to consider the sentencing factors
`in §3553(a) in making these decisions, and because some
`of those factors will be difficult to apply with respect to
`anticipated sentences, the Act cannot be read to allow
`judicial discretion in these circumstances. One cannot be
`
`
`
`
`
`
`
`
`
`
`
`8
`
`
`

`
`
`
`9
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`sure that the sentence imposed is “sufficient, but not
`greater than necessary,” §3553(a), the argument goes, if
`one does not know how long it will actually be. But the
`district judge faces the same uncertainty if the concurrent-
`
`vs.-consecutive decision is left for later resolution by the
`Bureau of Prisons; he does not know, for example, whether
`the 5-year sentence he imposes will be an actual five years
`or will be simply swallowed within another sentence. To
`be sure, the Bureau of Prisons, if it waits to decide the
`matter until after the state court has imposed its sentence,
`will know for sure what sentences it is dealing with. But
`the Bureau is not charged with applying §3553(a). The
`factors that guide the agency’s “place of imprisonment”
`decision do include “the nature and circumstances of the
`offense” and “the history and characteristics of the pris-
`oner,” §3621(b)(2), (b)(3) (2006 ed.)—factors that are, to be
`sure, relevant to sentencing but also relevant to selection
`of the place of confinement; but they also include factors
`that make little, if any, sense in the sentencing context,
`such as “the resources of the facility contemplated” and
`whether the state facility “meets minimum standards of
`health and habitability,” §3621(b), (b)(1). (These factors
`confirm our view that §3621 is not a sentencing provision
`but a place-of-confinement provision.) It is much more
`natural for a judge to apply the §3553(a) factors in making
`all concurrent-vs.-consecutive decisions, than it is for some
`such decisions to be made by a judge applying §3553(a)
`factors and others by the Bureau of Prisons applying
`§3621(b) factors.
`
`The final objection is that principles of federalism and
`good policy do not allow a district court to make the
`concurrent-vs.-consecutive decision when it does not have
`before it all of the information about the anticipated state
`sentence. As for principles of federalism, it seems to us
`they cut in precisely the opposite direction. In our Ameri-
`can system of dual sovereignty, each sovereign—whether
`
`
`
`
`
`
`
`

`
`10
`
`
`
`SETSER v. UNITED STATES
`
`Opinion of the Court
`the Federal Government or a State—is responsible for “the
`administration of [its own] criminal justice syste[m].” Ice,
`555 U. S., at 170. If a prisoner like Setser starts in state
`custody, serves his state sentence, and then moves to
`federal custody, it will always be the Federal Govern-
`ment—whether the district court or the Bureau of Pris-
`ons—that decides whether he will receive credit for the
`time served in state custody. And if he serves his federal
`sentence first, the State will decide whether to give him
`credit against his state sentences without being bound by
`what the district court or the Bureau said on the matter.
`Given this framework, it is always more respectful of the
`State’s sovereignty for the district court to make its deci-
`sion up front rather than for the Bureau of Prisons to
`make the decision after the state court has acted. That
`way, the state court has all of the information before it
`when it acts.4 The Government’s position does not pro-
`mote the States’ interest—just the interests of the Bureau
`of Prisons.
`
`As for good policy: The basic claim of Setser, the Gov-
`
`ernment, and the dissent is that when it comes to sentenc-
`ing, later is always better because the decisionmaker has
`more information. See, e.g., post, at 7 (“[A] sentencing
`
`judge typically needs detailed information when construct-
`ing a multiple-count or multiple-conviction Guideline
`sentence”). That is undoubtedly true, but when that
`desideratum is applied to the statutory structure before us
`——————
`4Setser notes that the text of §3584(a) does not distinguish between
`state and federal sentences. If a district court can enter a consecutive
`
` sentencing order in advance of an anticipated state sentence, he asks,
`what is to stop it from issuing such an order in advance of an antici-
`pated federal sentence? It could be argued that §3584(a) impliedly
`
` prohibits such an order because it gives that decision to the federal
`court that sentences the defendant when the other sentence is “already”
`imposed—and does not speak (of course) to what a state court must do
`when a sentence has already been imposed. It suffices to say, however,
`that this question is not before us.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`11
`
`
`Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`here it is overwhelmed by text, by our tradition of judicial
`
`sentencing,5 and by the accompanying desideratum that
`sentencing not be left to employees of the same Depart-
`ment of Justice that conducts the prosecution.6 Moreover,
`when the district court’s failure to “anticipat[e] develop-
`ments that take place after the first sentencing,” Brief
`for United States 29, produces unfairness to the defend-
`ant, the Act provides a mechanism for relief. Section
`
`3582(c)(1)(A) provides that a district court,
`“upon motion of the Director of the Bureau of Prisons,
`may reduce the term of imprisonment . . . after con-
`——————
`5To support its view that Congress authorized the Bureau to make
`
`
`
`
` concurrent-vs.-consecutive decisions, the dissent relies on the fact that
`the Executive long had what is effectively sentencing authority in its
`ability to grant or deny parole. That is a particularly curious power for
`the dissent to rely upon, inasmuch as most of the dissent discusses (in
`great detail) the Sentencing Reform Act, whose principal objective was
`
`
` to eliminate the Executive’s parole power. Curiouser still is the dissent’s
`invocation of the Guidelines system, which “tell[s] the sentencing judge
`how, through the use of partially concurrent and partially consecutive
`sentences, to build a total sentence that meets the Guidelines’ require-
`
`
`ments.” Post, at 4. These “instructions,” ibid., do not cover yet-to-be-
`
`imposed sentences, the dissent says, because “the sentencing judge
`
`
`normally does not yet know enough about the behavior that underlies
`(or will underlie)” such a sentence. Post, at 5. That explains, perhaps,
`
`why the Guidelines’ “instructions” to judges do not cover them. But
`
`why do not the Guidelines “instruct” the Bureau of Prisons how to
`conduct its concurrent/consecutive sentencing? If the reason is (as we
`
`suspect) that the Sentencing Commission does not have, or does not
`believe it has, authority to “instruct” the Bureau of Prisons, the dis-
`sent’s entire argument based upon what it calls “the purposes and the
`
`mechanics of the SRA’s sentencing system,” post, at 6, falls apart. Yet-
`to-be-imposed sentences are not within the system at all, and we are
`simply left with the question whether judges or the Bureau of Prisons
`is responsible for them. For the reasons we have given, we think it is
`judges.
`6Of course, a district court should exercise the power to impose antic-
` ipatory consecutive (or concurrent) sentences intelligently. In some
`
`
` situations, a district court may have inadequate information and may
`forbear, but in other situations, that will not be the case.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`12
`
`
`
`SETSER v. UNITED STATES
`
`Opinion of the Court
`sidering the factors set forth in section 3553(a) to the
`extent that they are applicable, if it finds that . . . ex-
`traordinary and compelling reasons warrant such a
`reduction [or that the defendant meets other criteria
`for relief].”
`
`IV
`
`Setser argues that, even if the District Court’s consecu-
`tive order was consistent with §3584(a), it made his sen-
`tence impossible to implement and therefore unreasonable
`under the Act, see United States v. Booker, 543 U. S. 220,
`261–262 (2005),7 in light of the State’s decision to make
`his sentences concurrent. We think not. There is nothing
`unreasonable—let alone inherently impossible—about the
`sentence itself. Setser is ordered to serve a 151-month
`term in federal custody, and that sentence should run
`concurrently with one state sentence and consecutively
`with another.
`
`The difficulty arises not from the sentence, but from the
`state court’s decision to make both state sentences concur-
`rent. 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.
`
`
`
`
`
`——————
`7We have never had occasion to decide whether reasonableness re-
`view under Booker applies to a court’s decision that a federal sentence
`should run concurrently with or consecutively to another sentence. The
`Courts of Appeals, however, generally seem to agree that such review
`
`
`applies. See, e.g., United States v. Padilla, 618 F. 3d 643, 647 (CA7
`
`
`2010) (per curiam); United States v. Matera, 489 F. 3d 115, 123–124
`(CA2 2007). For purpose of the present case we assume, without
`
`deciding, that it does.
`
`
`
`
`
`
`
`

`
`
`
`
`
`
`
` 13
`
` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`This is indeed a problem, but not, we think, one that
`shows the District Court’s sentence to be unlawful. The
`reasonableness standard we apply in reviewing federal
`sentences asks whether the district court abused its dis-
`cretion. See Gall v. United States, 552 U. S. 38, 46 (2007).
`
`Setser identifies no flaw in the District Court’s deci-
`
`sionmaking process, nor anything available at the time of
`sentencing that the District Court failed to consider. That
`
`a sentence is thwarted does not mean that it was unrea-
`sonable. If a district court ordered, as a term of super-
`vised release, that a defendant maintain a steady job, but
`a subsequent disability rendered gainful employment
`infeasible, we doubt that one would call the original sen-
`tence an abuse of discretion. 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.
`
`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 sen-
`tence

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