FILED
NOT FOR PUBLICATION MAR 14 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10618
Plaintiff-Appellee, D.C. No. 4:13-cr-00139-JGZ
v.
MEMORANDUM*
YASIR MILLAN-SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Yasir Millan-Sanchez appeals from the district court’s judgment entered
upon remand, which does not specify whether the 60-month concurrent sentences
imposed therein shall run concurrently or consecutively to any additional time the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
State of Utah orders him to serve for his parole violation on an earlier state
conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Millan-Sanchez argues that the district court was required to make a
concurrent/consecutive determination under 18 U.S.C. § 3584(a). However, that
statute does not apply here because, at the time Millan-Sanchez’s federal sentence
was imposed, he was not already subject to an undischarged term of imprisonment;
rather, the state had yet to sentence him for his parole violation. See Setser v.
United States, 566 U.S. 231, 234-35 (2012) (section 3584(a) did not apply where
the state court had yet to impose a sentence on the probation violation when the
federal sentence was imposed). In any event, the statute does not help Millan-
Sanchez because it plainly contemplates that there will be situations where the
district court does not order its sentence to be concurrent or consecutive. See id. at
239-40 (section 3584(a) sets forth what will be assumed in certain situations when
the district court does not specify whether its sentence is concurrent or
consecutive). We also reject Millan-Sanchez’s suggestion that the district court’s
refusal to make the concurrent/consecutive determination was a violation of this
court’s mandate. As required by this court, the district court considered Setser, and
acknowledged its discretion to make the concurrent/consecutive determination.
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See id. at 244. Nothing in our order or otherwise required it to exercise its
discretion.
Millan-Sanchez also contends that the district court clearly erred in deferring
the concurrent/consecutive decision because it presumed that the decision would be
made by a Utah court when in fact the parole board will decide whether to credit
his federal sentence towards any subsequent time he is ordered to serve in Utah.
Any factual error by the district court does not merit reversal because it does not
undermine the court’s conclusion that Utah—by whatever sentencing procedure it
employs—is in a better position to decide whether or not Millan-Sanchez should
receive credit for his federal time when determining the penalty for his Utah parole
violation. Indeed, as a practical matter, any decision by the district court would not
be controlling in this case because, by virtue of the fact that Utah will sentence
Millan-Sanchez after his federal sentence terminates, it will ultimately determine
the overall sentence that Millan-Sanchez serves. See id. at 241 (if a defendant
serves his federal sentence first, “the State will decide whether to give him credit
against his state sentences without being bound by what the district court . . . said
on the matter”).
AFFIRMED.
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