IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2008
No. 07-10139 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GREGORIO QUINTANA-GOMEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The question presented is whether the district court plainly erred by
ordering that its sentence run consecutively to a not-yet-imposed sentence
pending in another federal court. We hold that the district court erred but that
this error was not plain. AFFIRMED.
I.
Gregorio Quintana-Gomez (Quintana) pled guilty to illegal reentry after
deportation. The United States District Court for the Northern District of Texas
(Northern District Court) sentenced Quintana to fifty-seven months of
imprisonment. The Northern District Court further ordered that Quintana’s
fifty-seven-month sentence run consecutively to any federal sentence that might
No. 07-10139
be imposed for a violation of supervised release, pending in the United States
District Court for the Southern District of Texas (Southern District Court).
Subsequently, the Southern District Court revoked Quintana’s supervised
release and sentenced him to six months of imprisonment. However, the
Southern District Court ordered that Quintana’s six-month sentence run
concurrently with the fifty-seven-month sentence previously imposed by the
Northern District Court.
II.
Quintana contends that the Northern District Court did not have
authority to order that its sentence run consecutively to an anticipated but not-
yet-imposed federal sentence. Quintana argues that 18 U.S.C. § 3584 restricts
a district court’s authority in this regard, as the statute gives a court power to
order that its sentence will “run concurrently or consecutively” only when a
defendant is (1) sentenced to “multiple terms of imprisonment . . . at the same
time,” or (2) “already subject to an undischarged term of imprisonment.” 18
U.S.C. § 3584(a) (emphasis added).1 Quintana directs this court to persuasive
1
Section 3584 provides, in relevant part:
(a) Imposition of concurrent or consecutive terms.--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.
(b) Factors to be considered in imposing concurrent or consecutive
terms.--The court, in determining whether the terms imposed are
to be ordered to run concurrently or consecutively, shall consider,
as to each offense for which a term of imprisonment is being
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authority that supports his argument. See United States v. Smith, 472 F.3d 222
(4th Cir. 2006).
The Government argues that the issue presented is controlled by United
States v. Brown, 920 F.2d 1212 (5th Cir. 1991) (per curiam), abrogated on other
grounds, United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006).
III.
We review questions of statutory construction de novo. United States v.
Orellana, 405 F.3d 360, 365 (5th Cir. 2005). But our review here is for plain
error only, as Quintana did not raise this issue before the district court. FED. R.
CRIM. P. 52(b); United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). To
obtain relief, Quintana must show: (1) error; (2) that is plain (clear or obvious);
and (3) that affects his substantial rights. United States v. Olano, 507 U.S. 725,
732-34 (1993). If this showing is made, the decision to correct the forfeited error
is then within this court’s sound discretion, which will not be exercised unless
the error “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (alteration in original) (citation and quotation marks
omitted). We thus turn to apply the plain error analysis to decide this appeal,
first addressing whether, to be sure, error of any sort was committed by the
district court.
The Government argues that Brown forecloses Quintana’s argument. In
Brown, the defendant appealed the district court’s order that “prospectively
forbid its sentence from being served concurrently with any sentence that may
subsequently be handed down by a state court . . . .” Brown, 920 F.2d at 1216.
In addressing this issue, we noted that “[i]t is well-established that a defendant
may be prosecuted and sentenced by both federal and state governments if the
defendant’s criminal conduct violates the laws of each sovereign.” Id. We also
imposed, the factors set forth in section 3553(a).
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No. 07-10139
noted that § 3584(a) does not preclude a district court from considering
“subsequent sentences anticipated, but not yet imposed, in separate state court
proceedings” when determining “whether to impose concurrent or consecutive
sentences.” Id. at 1217 (emphasis added).2 We did not, however, discuss our
dual-sovereignty concerns in any greater detail, nor did we discuss the text of §
3584(a) in any greater detail. That the Brown reasoning was predicated largely
on principles of dual sovereignty, however, distinguishes the case from that
presented here. Further, it should be noted that the Brown panel did not hold
that the state court was so legally bound by the federal court’s order that the
state court could not order its sentence to run concurrently with the federal
sentence if it chose to do so. See id. (“The [district] court did not abuse its
discretion in determining that Brown’s crime warranted a sentence consecutive
to any sentence imposed in pending state proceedings.”).
Here, we are presented not with a potential conflict between two
sovereigns but with an actual conflict between two federal district courts. As
noted above, the Northern District Court first ordered that its fifty-seven-month
sentence run consecutively to any federal sentence that might be imposed in the
proceedings pending before the Southern District Court. The Southern District
2
Our holding in Brown has been criticized by a subsequent panel of this court. United
States v. Hernandez, 234 F.3d 252, 256 (5th Cir. 2000) (per curiam) (“Although the plain
language of § 3584 suggests that the district court is without discretion to order that a federal
term of imprisonment run concurrent with a yet-to-be-imposed state sentence, we have found
to the contrary.”).
The courts of appeals are divided on the question of whether a district court may
require its sentence to be served consecutively to an anticipated but not-yet-imposed state
sentence. See United States v. Smith, 472 F.3d 222, 225-27 (4th Cir. 2006) (lacks authority);
United States v. Quintero, 157 F.3d 1038, 1039-41 (6th Cir. 1998) (lacks authority); Romandine
v. United States, 206 F.3d 731, 737-39 (7th Cir. 2000) (noting in dicta that the district court
lacks authority); United States v. Mayotte, 249 F.3d 797, 798-99 (8th Cir. 2001) (has authority);
United States v. Clayton, 927 F.2d 491, 492-93 (9th Cir. 1991) (lacks authority); United States
v. Williams, 46 F.3d 57, 58-59 (10th Cir. 1995) (has authority); United States v. Ballard, 6 F.3d
1502, 1505-10 (11th Cir. 1993) (has authority).
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No. 07-10139
Court, however, then ordered that its six-month sentence run concurrently with
the term of imprisonment imposed by the Northern District Court. We have not
yet addressed § 3584(a) in a case, like this, where the anticipated but not-yet-
imposed sentence is a federal sentence.
The Government has provided no statutory or other authority that
indicates that the Northern District Court’s judgment bound the Southern
District Court. And as the Fourth Circuit noted in Smith, to allow one federal
court to order that its sentence run consecutively to or concurrently with an
anticipated but not-yet-imposed federal sentence “would place one federal court
in the position of abrogating the sentencing authority of another.” 472 F.3d at
227. The Smith court was particularly concerned that a federal district court,
if permitted to impose a sentence consecutive to an anticipated federal sentence,
would present the second district court judge “with the Hobson’s choice of either
ignoring his own judgment [that a concurrent sentence was appropriate] or
disobeying the order of another district court.” Id. We agree that “Congress
could not have intended this result when it enacted § 3584.” Id.
Moreover, when “determining whether the terms imposed are to be
ordered to run concurrently or consecutively,” a district court must consider “the
factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). Section 3553(a)
requires a court to consider, among other things, “the nature and circumstances
of the offense.” 18 U.S.C. § 3553(a). As the Fourth Circuit noted in Smith,
“[o]nly a court that sentences a defendant already subject to an undischarged
term of imprisonment could properly consider whether a consecutive or
concurrent sentence best serves the goals of § 3553(a), as only that court knows
the circumstances attending the later sentence.” Smith, 472 F.3d at 227.
We therefore hold that § 3854 does not provide a district court authority
to order that its sentence run consecutively to an anticipated but not-yet-
imposed federal sentence. Moreover, as a general principle, one district court
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has no authority to instruct another district court how, for a different offense in
a different case, it must confect its sentence. We therefore also hold that the
Northern District Court erred by ordering that Quintana’s sentence run
consecutively to the anticipated but not-yet-imposed federal sentence.
Having established that the district court erred, however, leaves the
question of whether the district court’s error was plain. It was not. As we have
noted above, this court has not previously addressed the question presented, and
our precedents at least arguably indicated, previous to this decision, that the
district court may well have the authority it attempted to exercise. We therefore
hold that the Northern District Court’s error was not plain.3
AFFIRMED.
3
Because the Northern District Court was without authority to order that its sentence
run consecutively, its order, in this limited respect, is without effect and may be disregarded
by the Federal Bureau of Prisons in the light of this holding.
6