United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
court impose a sentence in this case that runs concurrent to
a federal sentence previously imposed in another action? The
answer is yes.
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.
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.)
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.
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.
federal sentence may run concurrent to an anticipated state
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).
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.
The rule about anticipated state sentences does not apply