Case: 12-10367 Document: 00512169919 Page: 1 Date Filed: 03/11/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2013
No. 12-10367
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:11-CR-157-3
Before STEWART, Chief Judge, SMITH and WIENER, Circuit Judges.
PER CURIAM:*
Noel Garcia was sentenced to 168 months’ imprisonment after pleading
guilty to possession with intent to distribute 500 grams or more of a substance
containing cocaine and to conspiracy to do the same. The district court ordered
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-10367
that the sentence run consecutively to Garcia’s impending probation revocation
by a state court. Appealing his sentence, Garcia complains of the consecutivity.
We affirm.
I.
Garcia pleaded guilty with no plea agreement. Recognizing his exceptional
cooperation, the government recommended a below-guideline sentence. The
court imposed a 168-month sentence, significantly below the guideline range of
235S293 months, but directed that the sentence would be “consecutive to any
terms of imprisonment that might be imposed in connection with any of [Gar-
cia’s] pending probation revocations.” Garcia’s counsel objected to the sentence’s
running consecutively.
II.
Garcia claims that his sentence was unreasonable based on its running
consecutively to the as-yet-undetermined state prison term. We review an
objected-to sentence for reasonableness under an abuse-of-discretion standard,
with findings of fact reviewed for clear error and legal application reviewed de
novo. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Salazar, 542
F.3d 139, 144 (5th Cir. 2008).
III.
Garcia argues that it is impossible for the federal sentence to run consecu-
tively to a sentence that has not been imposed. A court may impose imprison-
ment of concurrent or consecutive terms; any decision will be measured for rea-
sonableness on appeal. See 18 U.S.C. § 3584. We addressed Garcia’s challenge
squarely in United States v. Setser, 607 F.3d 128 (5th Cir. 2010).
In Setser, we held that “the district court had the authority to—and there-
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No. 12-10367
fore did not abuse its discretion by—imposing a consecutive federal sentence to
a yet imposed state sentence.” Id. at 131–32. The Supreme Court affirmed. See
Setser v. United States, 132 S. Ct. 1463 (2012). The Court explained that there
“is nothing unreasonable—let alone inherently impossible—about the sen-
tence[’s]” being imposed consecutively to an undetermined state sentence. Id.
at 1472. Although the Court did not decide whether “reasonableness review
under [Booker v. United States, 543 U.S. 220 (2005),] applies to a court’s decision
that a federal sentence should run concurrently with or consecutively to another
sentence,” it noted that the courts of appeals “generally” apply this standard of
review, and the Court applied it. Id. at 1472 n.7. We therefore reiterate that
imposition of a sentence to run consecutively to an undetermined state sentence
is not, for that reason, unreasonable or an abuse of discretion.
Garcia attempts to distinguish these cases by noting that Setser was
already in state custody even though the state had not yet sentenced him. That
argument is unavailing. Custody played no part in either our or the Supreme
Court’s analysis of this question, and it changes nothing. “Consecutive” is distin-
guished from “concurrent”; it does not necessarily mean “before.” Garcia will be
able to serve any state-imposed term of imprisonment after his federal sentence.
Garcia also argues that our jurisprudence is inconsistent. He cites United
States v. Quintana-Gomez, 521 F.3d 495, 498 (5th Cir. 2008), in which we held
that a district court does not have “authority to order that its sentence run con-
secutively to an anticipated but not-yet-imposed” sentence to be imposed by
another federal court. There, however, we were careful to note that sentences
could be imposed to run consecutively to as-yet-undetermined state sentences
even if they could not run consecutively to unimposed federal sentences. Id.
at 497. Quintana-Gomez is inapplicable.
The judgment of sentence is AFFIRMED.
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