USA v. Setser

Filing 511107582

Case: 08-10835

Document: 00511107582

Page: 1

Date Filed: 05/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
May 11, 2010 N o . 08-10835 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e , v. M O N R O E ACE SETSER, Defendant-Appellant.

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges. F O R T U N A T O P. BENAVIDES, Circuit Judge: D e fe n d a n t -A p p e lla n t Monroe Ace Setser appeals the district court's im p o s i t io n of a federal sentence that runs consecutively to an undischarged state s e n te n c e . Because the imposition of a consecutive sentence is fully within the d i s tr ic t court's authority, and because we conclude that the sentence is otherwise r e a s o n a b le and not illegal, we find no error in the district court's sentencing of d e fe n d a n t. Accordingly, we AFFIRM. I. B AC KG R OU N D

M o n r o e Ace Setser pleaded guilty to possession with intent to distribute 5 0 grams or more of methamphetamine and aiding and abetting. At the time he c o m m it t e d the instant offense, Setser was still serving a five-year term of

Case: 08-10835

Document: 00511107582

Page: 2

Date Filed: 05/11/2010

No. 08-10835 p r o b a tio n in state court for a previous 2006 state offense. Additionally in 2007, S e t s e r had been charged in state court with possession with intent to deliver a c o n tr o lle d substance--an offense that was directly related to the instant federal o ffe n s e of conviction. Following Setser's entry of a guilty plea, the federal district court s e n te n c e d Setser to 151 months of imprisonment. At the time of sentencing, the d is t r ic t court stated that the 151 months were to be served consecutively to any s e n te n c e imposed as a result of his 2006 state offense and concurrently with any s e n te n c e imposed pursuant to his 2007 state offense. Setser timely appealed his s e n te n c e , arguing that the district court's sentence was illegal since 18 U.S.C. § 3584 does not grant the district court the authority to impose a federal s e n te n c e consecutively to an undischarged state sentence. Subsequent to the district court's imposition of the federal sentence, S e t s e r 's probation in his 2006 state case was revoked by the state court, and he w a s sentenced to five years of imprisonment. Additionally, Setser was convicted o f possession with intent to deliver a controlled substance in the 2007 state c h a r g e , and as a result, he was sentenced to ten years of imprisonment. The s t a te court ordered that these two state sentences would run concurrently to one a n o th e r . On April 12, 2010, the United States moved pursuant to Fed. R. App. P. 1 0 (e )(2 )(C ) & (e)(3) to supplement the record with documents showing that the T e x a s prison system released Setser and that he is now in the custody of the fe d e r a l Bureau of Prisons ("BOP"). Consequently, after serving only

t w o - a n d - a - h a lf years in the state system on both of his 2006 and 2007 state s e n t e n c e s , Setser is now in BOP custody. Setser's Texas parole documents show

2

Case: 08-10835

Document: 00511107582

Page: 3

Date Filed: 05/11/2010

No. 08-10835 th a t he was released from state custody on March 17, 2010. The BOP's "Public I n f o r m a tio n Inmate Data" sheet indicates that Setser's federal sentence began t o run on March 17, 2010. The BOP did not award Setser any credit for the twoa n d -a -h a lf years he spent in state custody. II. S TANDARD OF REVIEW

" A sentence is ultimately reviewed for `unreasonableness.'" United States v . Candia, 454 F.3d 468, 472 (5th Cir. 2006) (quoting United States v. Smith, 4 4 0 F.3d 704, 705 (5th Cir. 2006)). "Under Booker, it is the sentence itself, in c lu d in g its consecutive nature, that is ultimately reviewed for reasonableness." Id. at 472-73 (quoting United States v. Booker, 543 U.S. 220, 261 (2005)). Here, w h e re the Defendant-Appellant is only challenging the imposition of a c o n s e c u tiv e sentence, and not the district court's application or calculation of the G u id e lin e s themselves, "the appellate court should . . . consider the substantive r e a s o n a b le n e s s of the sentence imposed under an abuse-of-discretion standard." G a l l v. United States, 552 U.S. 38, 51 (2007); see also Candia, 454 F.3d at 474 (" W e have determined that unreasonableness is the standard of review a p p l ic a b le to a consecutive sentence imposed both within a properly calculated se n te n cin g range and pursuant to the applicable guidelines for imposition of a c o n s e c u t iv e sentence."). Accordingly, this Court reviews the reasonableness of t h e district court's imposition of a consecutive sentence for abuse of discretion. I I I. A N AL YSIS O n appeal, Setser contends that the district court erred by relying on 18 U .S .C . § 3584 as authority to order his sentence to run consecutively to his u n d is ch a r g e d state sentence in his 2006 state conviction. He acknowledges that t h is argument is foreclosed by the Court's decision in United States v. Brown,

3

Case: 08-10835

Document: 00511107582

Page: 4

Date Filed: 05/11/2010

No. 08-10835 9 2 0 F.2d 1212, 1216 (5th Cir. 1991), abrogated on other grounds by Candia, 454 F .3 d at 472-73, where this Court held that "[w]hether a sentence imposed should r u n consecutively or concurrently [to an undischarged state sentence] is c o m m it t e d to the sound discretion of the district court, subject to consideration o f the factors set forth in 18 U.S.C. § 3553(a)." S e ts e r offers several arguments as to why this Court should now revisit it s decision in Brown. First, Setser notes that the circuits are split on this issue,* a n d he contends that Brown does not comport with the text of 18 U.S.C. § 3584 o r its legislative history. Finally, Setser contends that the sentencing factors in

The Eleventh, Eighth, Tenth, and Fifth Circuits have held that § 3584 authorizes district courts to order a federal sentence to run consecutively to an undischarged state sentence. See United States v. Ballard, 6 F.3d 1502, 1507 (11th Cir. 1993) ("[A] district court [has] the authority to impose a federal sentence consecutive to an unrelated, unimposed state sentence on pending charges."); United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001) ("[T]he authority to impose such a federal sentence to be served consecutively to a yet-to-be-imposed state sentence falls within the broad discretion granted to the court."); United States v. Williams, 46 F.3d 57, 59 (10th Cir. 1995) (holding that "no language in section 3584(a) prohibit[s] a district court from ordering that a federal sentence be served consecutively to a state sentence that has not yet been imposed."); United States v. Brown, 920 F.2d 39 1212, 1216 (5th Cir. 1991) (holding that "whether a sentence imposed should run consecutively or concurrently is committed to the sound discretion of the district court, subject to consideration of the factors set forth in 18 U.S.C. § 3553(a)."). In contrast, the Second, Fourth, Seventh, Sixth, and Ninth Circuits have held that a federal district court does not have such discretion or authority. Cf. United States v. Donoso, 521 F.3d 144, 147 (2d Cir. 2008) (determining "that under 18 U.S.C. § 3584(a), the district court was not authorized to direct that the federal sentence run consecutively to [an undischarged] state sentence."); United States v. Smith, 472 F.3d 222, 225 (4th Cir. 2006) ("The plain language of this statute does not grant a district court authority to order that its sentence run consecutively to a future sentence."); Romandine v. United States, 206 F.3d 731, 737 (7th Cir. 2000) ("Neither § 3584(a) nor any other statute of which we are aware authorizes a federal judge to declare that his sentence must run consecutively to some sentence that may be imposed in the future."); United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998) ("We hold that 18 U.S.C. § 3584(a) does not authorize district courts to order a sentence to be served consecutively to a not-yet-imposed state sentence."); United States v. Clayton, 927 F.2d 491, 492-93 (9th Cir. 1991) (holding "[t]hat a federal court may not direct a federal sentence to be served consecutive to a state sentence not yet imposed . . . .").

*

4

Case: 08-10835

Document: 00511107582

Page: 5

Date Filed: 05/11/2010

No. 08-10835 § 3553(a) and U.S.S.G. § 5G1.3 run contrary to Brown, as do considerations of c o m ity . Even if we were to find Setser's arguments compelling, we are bound by B ro w n 's precedent as "[i]t is a firm rule of this circuit that in the absence of an in t e r v e n in g contrary or superseding decision by this court sitting en banc or by t h e United States Supreme Court, a panel cannot overrule a prior panel's d e c is io n . " Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). T h u s , there are only two ways in which Brown's posture as binding precedent in t h is Court could change: 1) an intervening decision by the Supreme Court or 2) a superseding decision by this Court sitting en banc. The Supreme Court, to d a te , has issued no intervening decision. Further, this Court has recently

d e c lin e d the opportunity to reconsider Brown en banc.* * Because Brown is the la w of this Court, we conclude that the district court had the authority to­and t h e r e fo r e did not abuse its discretion by--imposing a consecutive federal s e n te n c e to a yet imposed state sentence. Despite the district court's authority to issue a consecutive sentence, S e t s e r argues that his consecutive sentence is unreasonable because he asserts t h a t his federal sentence is now logically impossible to carry out--as a result of

In United States v. Garcia-Espinoza, No. 08-10775, 2009 WL 1362199 at *1 (5th Cir. May 15, 2009) (unpublished), this Court rejected a defendant's challenge to his consecutive sentence, holding that his "challenge is foreclosed by our prior precedent." However, in light of the circuit split concerning a district court's discretion to order a federal sentence to run consecutively to an undischarged state sentence, Judge Owen and Judge Dennis, in their joint concurrence, recommended that the Court revisit the Brown holding en banc. Id. at *2. Yet when Garcia-Espinoza filed a motion for rehearing en banc, "[n]o member of the panel nor judge in regular active service on the court . . . requested that the court be polled" on a rehearing en banc. As a result, the Court denied the defendant-appellant's motion on April 13, 2009. Thus, given this Court's recent refusal to reconsider Brown en banc, any future reversal of the Court's decision in Brown is best left to the discretion of our Supreme Court.

**

5

Case: 08-10835

Document: 00511107582

Page: 6

Date Filed: 05/11/2010

No. 08-10835 t h e state court's decision to run his two state sentences concurrently. Setser c o n t e n d s that either the consecutive or the concurrent sentence must be given p r i o r i t y , and that it is not clear from the record what the district court fully in t e n d e d . Initially, Setser asserted that once he was transferred to federal c u s to d y , the BOP would not be able to correctly calculate his sentence as a result o f this inherent ambiguity. Setser therefore requested that this Court declare h is consecutive sentence unreasonable and either reverse and remand for r e -s e n te n c in g , or strike the consecutive sentence and order that his 151 months b e served concurrently to both state sentences. Finding no error in the district c o u r t 's sentence, we decline to reverse or remand for re-sentencing. A sentence may be illegal if it is "`ambiguous with respect to the time and m a n n e r in which it is to be served, is internally self-contradictory, omits a term r e q u ir e d to be imposed by statute, is uncertain as to the substance of the statute o r is a sentence which the judgment of conviction did not authorize.'" United S ta tes v. Dougherty, 106 F.3d 1514, 1525 (10th Cir. 1997) (quoting United States v . Wainwright, 938 F.2d 1096, 1098 (10th Cir. 1991)). "Criminal sentences must `r e v e a l with fair certainty the intent of the court to exclude any serious m is a p p r e h e n s i o n s by those who must execute them.'" United States v. Garza, 4 4 8 F.3d 294, 302 (5th Cir. 2006) (quoting United States v. Daugherty, 269 U.S. 3 6 0 , 363 (1926)). In the present case, however, there is nothing plainly selfc o n tr a d ic t o r y or uncertain about the sentence in and of itself. Quite to the c o n t r a r y , the federal sentence alone is quite clear. Any ambiguity in the district c o u r t 's sentence was not introduced until after the state court ordered Setser's t w o state sentences to run concurrently.

6

Case: 08-10835

Document: 00511107582

Page: 7

Date Filed: 05/11/2010

No. 08-10835 I t is important to note that Setser's "contention that the sentence is `im p o s s i b l e ' to fulfill stems not from an inherent flaw on the face of the court's s e n te n c in g papers, . . . but from the very practical problems that arise in c a r r y in g out overlapping state and federal sentences in a dual sovereignty." U n ite d States v. Cibrian, 2010 WL 1141676, *5 (5th Cir., Mar. 14, 2010) (u n p u b lis h e d ). That is, in Cibrian, this Court noted that "[t]he irreconcilability o f [a defendant's] federal and state sentences is a well-documented practicality o f our system of contemporaneous jurisdiction." Id. at 7. As a result of this dual s y s te m of jurisdiction, in some instances--as in here--it is "the federal sentence [t h a t may be] partially foiled, [and] in other cases, it is the state sentence that s u f fe r s the intrusion." Id. A subsequently issued state court sentence, therefore, d o e s not render an otherwise legal federal sentence illegal. Furthermore, now that Setser is in the custody of the BOP, and the BOP h a s determined that Setser is not entitled to any credit for the time he spent in s t a te custody, we are currently without the power or the authority to order the B O P to calculate Setser's sentence in any certain manner. Notably, "the United S t a t e s Supreme Court [has] held that § 3585(b) does not authorize a . . . court to compute credit for time spent in official detention at sentencing, but [rather,] c r e d i t awards are to be made by the Attorney General, through the Bureau of P r is o n s , after sentencing." United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1 9 9 2 ) (citing United States v. Wilson, 503 U.S. 329 (1992)). In the event that a p r is o n e r feels he has been improperly refused credit for time he has served in s t a te custody, the prisoner must first "seek administrative review of the c o m p u t a t io n s of [his] credit, and, once [he has] exhausted [his] administrative r e m e d i e s , [the] prisone[r] may only then pursue judicial review of these

7

Case: 08-10835

Document: 00511107582

Page: 8

Date Filed: 05/11/2010

No. 08-10835 c o m p u t a t io n s ." Id. (citing Wilson, 503 U.S. at 335; 28 C.F.R. §§ 542.10-542.16 (1 9 9 0 )) (internal citations omitted); see also Lundy v. Osborn, 555 F.2d 534, 5 3 4 -3 5 (5th Cir. 1977) ("[G]rievances of prisoners concerning prison

a d m i n i s tr a tio n should be presented to the Bureau [of Prisons] through the a v a ila b le administrative channels. Only after such remedies are exhausted will th e court entertain the application for relief in an appropriate case.").*** T h u s, although his appeal began as a challenge to the ambiguity regarding h o w the BOP might interpret and carry out the district court's sentence, the B O P has subsequently interpreted and carried out the sentence. The BOP's i n t e r p r e t a t io n of Setser's sentence, however, is not properly before this Court. At this juncture, should Setser wish to contest the BOP's denial of credit for the t im e he served in state custody, Setser must first pursue his administrative r e m e d ie s pursuant to 28 C.F.R. §§ 542.10-542.16 (2002). IV. C O N C L U S IO N

F o r the aforementioned reasons, we conclude that the district court's im p o s it io n of a consecutive sentence was well within the district court's a u t h o r it y pursuant to 18 U.S.C. § 3584, and as a result, the district court's s e n t e n c e was not illegal or unreasonable. Accordingly, we find that the district c o u r t did not abuse its discretion, and we AFFIRM. All pending motions are d e n ie d .

This Court has previously dismissed a prisoner's appeal of the BOP's interpretation and calculation of his sentence if the prisoner has failed to exhaust his administrative remedies. That is, once a prisoner has exhausted his administrative remedies, he may "fil[e] a pro se petition for habeas relief under 28 U.S.C. § 2241, challenging the BOP's computation of his sentence . . . ." Dominguez v. Williamson, 251 F.3d 156, at *2 (5th Cir. 2001). However, "this court has determined that a § 2241 petitioner must first exhaust his administrative remedies through the Bureau of Prisons." Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993).

***

8