NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1150n.06
No. 10-2692 FILED
Nov 07, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) MICHIGAN
RICHARD ALAN ZORN, )
)
Defendant-Appellant. )
Before: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.*
KETHLEDGE, Circuit Judge. This case is before us a second time. Richard Zorn pled guilty
to receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At the time of his
federal sentencing hearing, Zorn was in state custody for state offenses for which he had not yet been
sentenced. Zorn argued during his federal sentencing hearing that his sentence should be reduced
for the time he had already spent in state custody. The district court rejected his argument, stating
that the court lacked authority to make Zorn’s federal sentence run “concurrently with a state
sentence that has not been imposed.” On appeal, we agreed and affirmed Zorn’s sentence. See
United States v. Zorn, 461 F. App’x. 493, 496 (6th Cir. 2012).
*
The Honorable Amul Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 10-2692
United States v. Zorn
Soon thereafter, the Supreme Court held that a district court does have discretion to make a
federal sentence either concurrent with or consecutive to any sentence yet to be imposed in state-
court proceedings. See Setser v. United States, 132 S. Ct. 1463, 1468 (2012). Zorn then petitioned
for a writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and
remanded the case for further consideration in light of Setser. See Zorn v. United States, __ S. Ct.
__, 2012 WL 1804685 (Oct. 1, 2012).
Accordingly, we vacate the district court’s judgment and remand the case with instructions
for the court to exercise its discretion whether Zorn’s federal sentence should run consecutive to, or
concurrent with, his state-court sentence. The Supreme Court’s decision in Setser does not affect
our analysis with respect to the other issues in Zorn’s appeal; and we hereby reinstate our decision
with respect to those other issues.
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