[JURIST] The US Supreme Court [official website] ruled 6-3 [opinion, PDF] Wednesday in Setser v. United States [SCOTUSblog backgrounder] on whether a federal district court, in sentencing a defendant for a federal offense, has authority to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed. Petitioner Setser was indicted in a Texas court on drug charges, and the state moved to revoke the probation term that he was then serving for another drug offense. At about the same time Setser pleaded guilty to federal drug charges, and the federal district court imposed a 151-month sentence to run consecutively to any state sentence imposed for the probation violation, but concurrently with any state sentence imposed on the new drug charge. The Sentencing Reform Act of 1984 (SRA) [18 USC § 3584] addresses only “multiple terms of imprisonment … imposed … at the same time” whereas Setser’s state sentence was not imposed at the same time as the federal sentence, which both parties argued means that the federal Bureau of Prisons should have decided the issue. In an opinion by Justice Antonin Scalia, the court held:

The Sentencing Reform Act of 1984 addresses the concurrent-vs.-consecutive decision, but not the situation here. … This does not mean, as Setser and the Government claim, that the District Court lacked authority to act as it did. … [I]t is more natural to read §3584(a) as leaving room for the exercise of judicial discretion in situations not covered than it is to read §3621(b) as giving the Bureau [of Prisons] what amounts to sentencing authority.

The judgment reversed a decision by the US Court of Appeals for the Fifth Circuit, which had held [opinion, PDF] that the district court had authority to order a sentence consecutive to an anticipated state sentence, and that Setser’s sentence was reasonable, even if the state court’s decision made it unclear exactly how to administer it. Justice Stephen Breyer filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg and Anthony Kennedy.

The court heard arguments [JURIST report] in the case in December. Interestingly, the government had conceded the issue and argued on behalf of petitioner that the federal judge exceeded his authority by making the consecutive/concurrent decision in the absence of a state sentence. Rather, that decision would lie with the federal Bureau of Prisons, which would consider several factors including a recommendation from the sentencing judge. Appointed counsel arguing in support of the Fifth Circuit opinion argued that § 3584, which instructs when sentences ought or ought not be consecutive or concurrent, did not address the situation at bar, and therefore the federal judiciary retained its inherent power to sentence, including discretion to make the sentence run concurrently or not.