Case: 08-10835 Document: 00511107582 Page: 1 Date Filed: 05/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 11, 2010
No. 08-10835 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONROE ACE SETSER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Defendant-Appellant Monroe Ace Setser appeals the district court’s
imposition of a federal sentence that runs consecutively to an undischarged state
sentence. Because the imposition of a consecutive sentence is fully within the
district court’s authority, and because we conclude that the sentence is otherwise
reasonable and not illegal, we find no error in the district court’s sentencing of
defendant. Accordingly, we AFFIRM.
I. B ACKGROUND
Monroe Ace Setser pleaded guilty to possession with intent to distribute
50 grams or more of methamphetamine and aiding and abetting. At the time he
committed the instant offense, Setser was still serving a five-year term of
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probation in state court for a previous 2006 state offense. Additionally in 2007,
Setser had been charged in state court with possession with intent to deliver a
controlled substance—an offense that was directly related to the instant federal
offense of conviction.
Following Setser’s entry of a guilty plea, the federal district court
sentenced Setser to 151 months of imprisonment. At the time of sentencing, the
district court stated that the 151 months were to be served consecutively to any
sentence imposed as a result of his 2006 state offense and concurrently with any
sentence imposed pursuant to his 2007 state offense. Setser timely appealed his
sentence, 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
sentence consecutively to an undischarged state sentence.
Subsequent to the district court’s imposition of the federal sentence,
Setser’s probation in his 2006 state case was revoked by the state court, and he
was sentenced to five years of imprisonment. Additionally, Setser was convicted
of possession with intent to deliver a controlled substance in the 2007 state
charge, and as a result, he was sentenced to ten years of imprisonment. The
state court ordered that these two state sentences would run concurrently to one
another.
On April 12, 2010, the United States moved pursuant to Fed. R. App. P.
10(e)(2)(C) & (e)(3) to supplement the record with documents showing that the
Texas prison system released Setser and that he is now in the custody of the
federal Bureau of Prisons (“BOP”). Consequently, after serving only
two-and-a-half years in the state system on both of his 2006 and 2007 state
sentences, Setser is now in BOP custody. Setser’s Texas parole documents show
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that he was released from state custody on March 17, 2010. The BOP’s “Public
Information Inmate Data” sheet indicates that Setser’s federal sentence began
to run on March 17, 2010. The BOP did not award Setser any credit for the two-
and-a-half years he spent in state custody.
II. S TANDARD OF R EVIEW
“A sentence is ultimately reviewed for ‘unreasonableness.’” United States
v. Candia, 454 F.3d 468, 472 (5th Cir. 2006) (quoting United States v. Smith,
440 F.3d 704, 705 (5th Cir. 2006)). “Under Booker, it is the sentence itself,
including 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,
where the Defendant-Appellant is only challenging the imposition of a
consecutive sentence, and not the district court’s application or calculation of the
Guidelines themselves, “the appellate court should . . . consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007); see also Candia, 454 F.3d at 474
(“We have determined that unreasonableness is the standard of review
applicable to a consecutive sentence imposed both within a properly calculated
sentencing range and pursuant to the applicable guidelines for imposition of a
consecutive sentence.”). Accordingly, this Court reviews the reasonableness of
the district court’s imposition of a consecutive sentence for abuse of discretion.
III. A NALYSIS
On 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
undischarged state sentence in his 2006 state conviction. He acknowledges that
this argument is foreclosed by the Court’s decision in United States v. Brown,
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920 F.2d 1212, 1216 (5th Cir. 1991), abrogated on other grounds by Candia, 454
F.3d at 472-73, where this Court held that “[w]hether a sentence imposed should
run consecutively or concurrently [to an undischarged state sentence] 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).”
Setser offers several arguments as to why this Court should now revisit
its decision in Brown. First, Setser notes that the circuits are split on this issue,*
and he contends that Brown does not comport with the text of 18 U.S.C. § 3584
or 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 . . . .”).
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§ 3553(a) and U.S.S.G. § 5G1.3 run contrary to Brown, as do considerations of
comity.
Even if we were to find Setser’s arguments compelling, we are bound by
Brown’s precedent as “[i]t is a firm rule of this circuit that in the absence of an
intervening contrary or superseding decision by this court sitting en banc or by
the United States Supreme Court, a panel cannot overrule a prior panel’s
decision.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
Thus, there are only two ways in which Brown’s posture as binding precedent in
this 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
date, has issued no intervening decision. Further, this Court has recently
declined the opportunity to reconsider Brown en banc.** Because Brown is the
law of this Court, we conclude that the district court had the authority to–and
therefore did not abuse its discretion by—imposing a consecutive federal
sentence to a yet imposed state sentence.
Despite the district court’s authority to issue a consecutive sentence,
Setser argues that his consecutive sentence is unreasonable because he asserts
that 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.
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the state court’s decision to run his two state sentences concurrently. Setser
contends that either the consecutive or the concurrent sentence must be given
priority, and that it is not clear from the record what the district court fully
intended. Initially, Setser asserted that once he was transferred to federal
custody, the BOP would not be able to correctly calculate his sentence as a result
of this inherent ambiguity. Setser therefore requested that this Court declare
his consecutive sentence unreasonable and either reverse and remand for
re-sentencing, or strike the consecutive sentence and order that his 151 months
be served concurrently to both state sentences. Finding no error in the district
court’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
manner in which it is to be served, is internally self-contradictory, omits a term
required to be imposed by statute, is uncertain as to the substance of the statute
or is a sentence which the judgment of conviction did not authorize.’” United
States 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
‘reveal with fair certainty the intent of the court to exclude any serious
misapprehensions by those who must execute them.’” United States v. Garza,
448 F.3d 294, 302 (5th Cir. 2006) (quoting United States v. Daugherty, 269 U.S.
360, 363 (1926)). In the present case, however, there is nothing plainly self-
contradictory or uncertain about the sentence in and of itself. Quite to the
contrary, the federal sentence alone is quite clear. Any ambiguity in the district
court’s sentence was not introduced until after the state court ordered Setser’s
two state sentences to run concurrently.
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It is important to note that Setser’s “contention that the sentence is
‘impossible’ to fulfill stems not from an inherent flaw on the face of the court’s
sentencing papers, . . . but from the very practical problems that arise in
carrying out overlapping state and federal sentences in a dual sovereignty.”
United States v. Cibrian, 2010 WL 1141676, *5 (5th Cir., Mar. 14, 2010)
(unpublished). That is, in Cibrian, this Court noted that “[t]he irreconcilability
of [a defendant’s] federal and state sentences is a well-documented practicality
of our system of contemporaneous jurisdiction.” Id. at 7. As a result of this dual
system of jurisdiction, in some instances—as in here—it is “the federal sentence
[that may be] partially foiled, [and] in other cases, it is the state sentence that
suffers the intrusion.” Id. A subsequently issued state court sentence, therefore,
does not render an otherwise legal federal sentence illegal.
Furthermore, now that Setser is in the custody of the BOP, and the BOP
has determined that Setser is not entitled to any credit for the time he spent in
state custody, we are currently without the power or the authority to order the
BOP to calculate Setser’s sentence in any certain manner. Notably, “the United
States 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,]
credit awards are to be made by the Attorney General, through the Bureau of
Prisons, after sentencing.” United States v. Dowling, 962 F.2d 390, 393 (5th Cir.
1992) (citing United States v. Wilson, 503 U.S. 329 (1992)). In the event that a
prisoner feels he has been improperly refused credit for time he has served in
state custody, the prisoner must first “seek administrative review of the
computations of [his] credit, and, once [he has] exhausted [his] administrative
remedies, [the] prisone[r] may only then pursue judicial review of these
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computations.” Id. (citing Wilson, 503 U.S. at 335; 28 C.F.R. §§ 542.10-542.16
(1990)) (internal citations omitted); see also Lundy v. Osborn, 555 F.2d 534,
534-35 (5th Cir. 1977) (“[G]rievances of prisoners concerning prison
administration should be presented to the Bureau [of Prisons] through the
available administrative channels. Only after such remedies are exhausted will
the court entertain the application for relief in an appropriate case.”).***
Thus, although his appeal began as a challenge to the ambiguity regarding
how the BOP might interpret and carry out the district court’s sentence, the
BOP has subsequently interpreted and carried out the sentence. The BOP’s
interpretation 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
time he served in state custody, Setser must first pursue his administrative
remedies pursuant to 28 C.F.R. §§ 542.10-542.16 (2002).
IV. C ONCLUSION
For the aforementioned reasons, we conclude that the district court’s
imposition of a consecutive sentence was well within the district court’s
authority pursuant to 18 U.S.C. § 3584, and as a result, the district court’s
sentence was not illegal or unreasonable. Accordingly, we find that the district
court did not abuse its discretion, and we AFFIRM. All pending motions are
denied.
***
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