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United States v. Clark

United States District Court, M.D. Alabama, Eastern Division

January 28, 2019

UNITED STATES OF AMERICA
v.
BRANDON ELLIOTT CLARK

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.

         Can the court impose a sentence in this case that runs concurrent to a federal sentence previously imposed in another action? The answer is yes.

         I. BACKGROUND

         In March 2018, law enforcement officers searched Defendant Brandon Elliott Clark's home. The officers found cocaine, ecstasy, marijuana, a pistol, and $96, 318 in cash. At the time, Defendant was on supervised release for a prior drug offense, so the United States Probation Office petitioned the court to revoke Defendant's term of supervised release. (No. 12-cr-163-MHT, Doc. # 3.) The United States Attorney also charged Defendant with committing new crimes. (No. 18-cr-348-WKW, Doc. # 1.) As a result, Defendant faced two different proceedings: one for the revocation of supervised release, and this action for his alleged new crimes. Judge Myron H. Thompson was assigned to the revocation proceeding, but not to this action.

         In October 2018, Defendant pleaded guilty in his revocation proceeding. (No. 12-cr-163-MHT, Docs. # 30, 31.) Judge Thompson sentenced Defendant to thirty- seven months imprisonment “to be run concurrent with any sentence imposed in 3:18cr348-WKW.” (No. 12-cr-163-MHT, Doc. # 31, at 3.)

         In this action, Defendant and the United States entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). The United States agreed to a sentence of sixty-six months. (No. 18-cr-348-WKW, Doc. # 7, at 2.) The guideline range, however, is from ninety to ninety-seven months. (PSR ¶ 74.) In determining whether to accept the plea agreement and impose a sentence of sixty-six months, the court is considering whether it can run that sentence consecutive to the sentence that Judge Thompson imposed.

         II. DISCUSSION

         “Firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of sentencing judges.” Oregon v. Ice, 555 U.S. 160, 168-69 (2009) (quoting Arthur W. Campbell, Law of Sentencing § 9:22 (3d ed. 2004)). Congress echoed that principle when it enacted 18 U.S.C. § 3584. Section 3584 provides that when a defendant “is already subject to an undischarged term of imprisonment, ” a sentencing court may run the sentence it imposes “concurrently or consecutively” to the earlier sentence:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

18 U.S.C. § 3584(a) (2017). Under that provision, the last federal judge to sentence a defendant makes the concurrent-vs.-consecutive decision. To see why, it helps to consider what happens when a federal court imposes a sentence in anticipation of a state sentence.

         A.A federal sentence may run concurrent to an anticipated state sentence.

         The Eleventh Circuit has long held that a federal court can specify whether a federal sentence will run concurrent with - or consecutive to - a not-yet-imposed state sentence. See United States v. McDaniel, 338 F.3d 1287, 1288 (11th Cir. 2003) (per curiam); United States v. Ballard, 6 F.3d 1502, 1510 (11th Cir. 1993).

         The Supreme Court adopted the same rule in Setser v. United States, 566 U.S. 231, 245 (2012). Specifically, Setser held that § 3584(a) does not apply when there is an anticipated state sentence. That is because federal courts do not impose state sentences and because anticipated sentences are (by definition) not yet imposed. Id. at 235. So when there is an anticipated state sentence, § 3584(a) is silent. And when § 3584(a) is silent, a district court retains its traditional, common-law authority to make the concurrent-vs.-consecutive decision about the sentence it imposes. Id.

         B. The rule about anticipated state sentences does not apply to ...


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