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Sentencing Discretion of Federal Judges Upheld

(CN) - A federal judge properly made a concurrent-versus-consecutive sentencing decision though the state sentence had not yet been imposed, the Supreme Court ruled Wednesday.

Monroe Ace Setser was on probation for a 2006 state-level drug crime when Texas officers caught him with at least 50 grams of methamphetamine.

The new arrest resulted in federal charges of possession with intent to distribute and aiding and abetting, to which Setser pleaded guilty.

A federal judge in the Northern District of Texas ordered Setser to serve the 12.5-year sentence consecutive to any state sentence imposed for probation violation, but concur­rent with any state sentence imposed on the new drug charge.

Meanwhile, the state court sentenced him to 10 years for the new drug charges, with five years for the probation violation running concurrently.

Setser argued that the federal court did not have the power to impose a federal sentence consecutively to an undischarged state sentence, but the claims fell on deaf ears with the trial court and 5th Circuit.

A six-justice majority of the Supreme Court felt the same way.

"Before proceeding further, it is important to be clear about what is at issue," Justice Antonin Scalia wrote for the court. "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 consecu­tive versus concurrent question,' 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." (Emphasis in original.)

The majority agreed with the lower courts that federal judges are the "who," and federal sentencing hearings are the "when."

"The difficulty arises not from the sentence, but from the state court's decision to make both state sentences concur­rent," Scalia wrote. "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. This is indeed a problem, but not, we think, one that shows the District Court's sentence to be unlawful."

"Setser identifies no flaw in the District Court's deci­sionmaking process, nor anything available at the time of sentencing that the District Court failed to consider," he added. "That a sentence is thwarted does not mean that it was unrea­sonable. If a District Court ordered, as a term of super­vised release, that a defendant maintain a steady job, but a subsequent disability rendered gainful employment infeasible, we doubt that one would call the original sen­tence 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."

Three of Scalia's colleagues countered that "a federal sentencing judge does not have the power to order that a 'federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.'" (Emphasis in original.)

"In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing ­proceeding-yet-to-come to be able to construct a sentence that meets the guidelines' instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences," according to the dissent authored by Justice Stephen Breyer.

"Of course, the court is correct when it says that eventu­ally the sentences will run (either wholly in or in part) concurrently or consecutively. And someone must decide how they will run. But the court is not correct when it says that this someone should be the first federal sentencing judge. Rather, the executive and judicial branches have devised a system that can draw upon the intentions of that first federal judge, while apply­ing them in light of actual knowledge about what later happened. The Bureau of Prisons (BOP) in effect makes the consecutive/concurrent decision after considering, among other things, 'any statement by the court that imposed the sentence,' including statements 'concerning the purposes for which the sentence to imprisonment was determined to be warranted.'"

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