SETSER v. UNITED STATES
On October 1, 2007, Lubbock police officers arrested Monroe Ace Setser after finding suspected narcotics during a traffic stop. At the time he was arrested, Setser was serving a five-year term of probation stemming from a previous state conviction. State authorities subsequently charged Setser with possession of a controlled substance with intent to deliver in the state court arising from the activities of October 1, 2007. They also filed a motion to revoke his probation in the 2006 state case. Before the state cases could be resolved, the federal government stepped in and charged Setser for his October 2007. Setser pleaded guilty to count one of the indictment and in exchange the government agreed to dismiss the remaining two counts. At sentencing, the federal district court sentenced Setser to 151 months of imprisonment and ordered the sentence to run consecutive to whatever sentence might be imposed in the pending state case, and concurrent to whatever sentence might be imposed in the 2007 state case. Neither case had been resolved in state court.
Did the district court err by directing that petitioner's federal sentence be served consecutively to a state sentence that had not yet been imposed?
Legal provision: Sentencing Reform Act
No. Justice Antonin Scalia delivered the opinion of the Court, affirming the lower court’s decision. The Court determined that the federal judge had discretion to order a federal sentence to run consecutively or concurrently with an anticipated state sentence. The Court found nothing in the Sentencing Reform Act which foreclosed the federal judge’s authority to make such a decision and noted that judges have traditionally had broad authority to determine whether sentences should run concurrently or consecutively.
Justice Stephen G. Breyer wrote a dissenting opinion, which Justice Ruth Bader Ginsburg and Justice Anthony M. Kennedy joined. Breyer argued that a federal judge does not have the power to order that a federal sentence run consecutively or concurrently with a state sentence that has yet to be imposed. Breyer noted that nothing in the Sentencing Reform Act explicitly granted federal judges that power. Furthermore, after discussing the history and purpose of the Sentencing Reform Act, Breyer concluded that the Court’s decision was contrary to the purpose of the Sentencing Reform Act.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MONROE ACE SETSER, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 28, 2012]
Justice Scalia delivered the opinion of the Court.
We consider whether a 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.I
When officers of the Lubbock Police Department arrested petitioner Monroe Setser for possessing methamphetamine, he was already serving a 5-year term of probation imposed by a Texas court for another drug offense. Setser was indicted in state court for possession with intent to deliver a controlled substance, and the State also moved to revoke his term of probation. As often happens in drug cases, the federal authorities also got involved. A federal grand jury indicted Setser for possessing with intent to distribute 50 grams or more of methamphetamine, 21 U. S. C. §841(a)(1), (b)(1)(A)(viii), and he pleaded guilty.
Before the federal sentencing hearing, a probation officer calculated the applicable Guidelines range to be 121 to 151 months’ imprisonment. Citing precedent from the United States Court of Appeals for the Fifth Circuit, United States v. Brown, 920 F. 2d 1212 (1991) (per curiam), he indicated that the District Court had discretion to make Setser’s sentence either concurrent with or consecutive to any sentence anticipated in the separate state-court proceedings. Setser objected, arguing that the District Court lacked such authority. The court nevertheless made the sentence of 151 months that it imposed consecutive to any state sentence imposed for probation violation, but concurrent with any state sentence imposed on the new drug charge. Setser appealed.
While Setser’s appeal was pending, the state court sentenced him to a prison term of 5 years for probation violation and 10 years on the new drug charge. It ordered that these sentences be served concurrently. Setser then made before the Court of Appeals, in addition to the argument that the District Court had no authority to order a consecutive sentence, the argument that his federal sentence was unreasonable because it was impossible to implement in light of the concurrent state sentences.
The Court of Appeals for the Fifth Circuit affirmed. 607 F. 3d 128 (2010). Following its earlier Brown decision, the court held that the District Court did have authority to order a consecutive sentence. 607 F. 3d, at 131–132. It also held that Setser’s sentence was reasonable, even if it was “ ‘partially foiled’ ” by the state court’s decision. Id., at 132–133. We granted certiorari, 564 U. S. ___ (2011), and appointed an amicus curiae to brief and argue this case in support of the judgment below, 564 U. S. ___ (2011).II
Before proceeding further, it is important to be clear about what is at issue. Setser does not contend that his federal sentence must run concurrently with both state sentences imposed after his federal sentencing hearing. He acknowledges that someone must answer “the consecutive versus concurrent question,” Brief for Petitioner 27, and decide how the state and federal sentences will fit together. The issue here is who will make that decision, which in turn determines when that decision is made. One possible answer, and the one the Fifth Circuit gave, is that the decision belongs to the Federal District Court at the federal sentencing hearing.
The concurrent-vs.-consecutive decision has been addressed by §212(a) of the Sentencing Reform Act of 1984, 18 U. S. C. §3584, reproduced in full as Appendix A, infra. The first subsection of that provision, which says when concurrent and consecutive sentences may be imposed, and specifies which of those dispositions will be assumed in absence of indication by the sentencing judge, does not cover the situation here. It addresses only “multiple terms of imprisonment . . . imposed . . . at the same time” and “a term of imprisonment . . . imposed on a defendant who is already subject to an undischarged term of imprisonment.” §3584(a). Here the state sentence is not imposed at the same time as the federal sentence, and the defendant was not already subject to that state sentence.
Setser, supported by the Government, argues that, because §3584(a) does not cover this situation, the District Court lacked authority to act as it did; and that the concurrent-vs.-consecutive decision is therefore to be made by the Bureau of Prisons at any time after the federal sentence has been imposed. The Bureau of Prisons is said to derive this authority from 18 U. S. C. §3621(b) (2006 ed. and Supp. IV), reproduced in full as Appendix B, infra.
On its face, this provision says nothing about concurrent or consecutive sentences, but the Government explains its position as follows: Section 3621(b) gives the Bureau the authority to order that a prisoner serve his federal sentence in any suitable prison facility “whether maintained by the Federal Government or otherwise.” The Bureau may therefore order that a prisoner serve his federal sentence in a state prison. Thus, when a person subject to a federal sentence is serving a state sentence, the Bureau may designate the state prison as the place of imprisonment for the federal sentence—effectively making the two sentences concurrent—or decline to do so—effectively making them consecutive. 1 Based on §§3584(a) and 3621(b), Setser and the Government argue that the concurrent-vs.-consecutive decision, under the circumstances presented here, is committed exclusively to the Bureau of Prisons.
It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes . . . were enacted,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989) , and the same approach is appropriate here, where the issue concerns a matter of discretion traditionally committed to the Judiciary. Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings. See Oregon v. Ice, 555 U. S. 160 –169 (2009). And a large majority of the federal appellate courts addressing the question have recognized a similar authority in the context here, where a federal judge anticipates a state sentence that has not yet been imposed. See Salley v. United States, 786 F. 2d 546, 547 (CA2 1986); Anderson v. United States, 405 F. 2d 492, 493 (CA10 1969) (per curiam); United States ex rel. Lester v. Parker, 404 F. 2d 40, 41–42 (CA3 1968) (per curiam); United States v. Kanton, 362 F. 2d 178, 179–180 (CA7 1966) (per curiam); but see United States v. Eastman, 758 F. 2d 1315, 1317 (CA9 1985) 2 . We find nothing in the Sentencing Reform Act, or in any other provision of law, to show that Congress foreclosed the exercise of district courts’ sentencing discretion in these circumstances.
Setser’s main contention is that §3584(a) has this effect. But that provision cannot sustain the weight that Setser asks it to bear. In essence, he reads the first sentence in §3584(a) to say that “terms [of imprisonment] may run concurrently or consecutively” only “[i]f multiple terms of imprisonment are imposed . . . 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.” Since the District Court was not imposing the state sentence and since it was not already imposed, the sentence could not be ordered to run consecutively. But if the text is exclusive—if the addition of only is correct—the provision forbids not only the imposition of consecutive sentences, but the imposition of concurrent ones as well. And yet, as Setser acknowledges, it must be one or the other; someone must decide the issue.
Setser’s response is that, read in context, the sentence speaks only to district courts. Under the circumstances at issue here, he says, the federal and state sentences still might run either concurrently or consecutively, but just not at the discretion of the District Court. That is an odd parsing of the text, which makes no distinction between the district court and the Bureau of Prisons. The placement of §3584 does indeed suggest that it is directed at district courts—but that is likely because Congress contemplated that only district courts would have the authority to make the concurrent-vs.-consecutive decision, not because Congress meant to leave the Bureau unfettered. Indeed, the Bureau already follows the other directives in §3584(a). See Brief for United States 35. For example, if the district court imposes multiple terms of imprisonment at the same time, but fails to address the concurrent-vs.-consecutive issue, the terms “run concurrently,” §3584(a), and the Bureau is not free to use its “place of imprisonment” authority to achieve a different result. 3
The Latin maxim on which Setser relies—expressio unius est exclusio alterius—might have application here if the provision in question were a conferral of authority on district courts. Giving sentencing authority in only specified circumstances could be said to imply that it is withheld in other circumstances. Section 3584, however, is framed not as a conferral of authority but as a limitation of authority that already exists (and a specification of what will be assumed when the exercise of that authority is ambiguous). It reads not “District courts shall have authority to impose multiple terms of imprisonment on a defendant at the same time, etc.” but rather “If multiple terms of imprisonment are imposed on a defendant at the same time, [etc.]”—quite clearly assuming that such authority already exists. The mere acknowledgment of the existence of certain pre-existing authority (and regulation of that authority) in no way implies a repeal of other pre-existing authority. And that is especially true when there is an obvious reason for selecting the instances of pre-existing authority that are addressed—to wit, that they are the examples of sentencing discretion most frequently encountered.
Moreover, expressio unius est exclusio alterius is a double-edged sword. Setser thinks it suggests that, because §3584(a) recognizes judicial discretion in scenario A and scenario B, there is no such discretion in scenario C. But the same maxim shows much more convincingly why §3621(b) cannot be read to give the Bureau of Prisons exclusive authority to make the sort of decision committed to the district court in §3584(a). When §3584(a) specifically addresses decisions about concurrent and consecutive sentences, and makes no mention of the Bureau’s role in the process, the implication is that no such role exists. And that conclusion is reinforced by application of the same maxim (properly, in this instance) to §3621(b)—which is a conferral of authority on the Bureau of Prisons, but does not confer authority to choose between concurrent and consecutive sentences. Put to the choice, we believe it is much more natural to read §3584(a) as not containing an implied “only,” leaving room for the exercise of judicial discretion in the situations not covered, than it is to read §3621(b) as giving the Bureau of Prisons what amounts to sentencing authority.III
None of the other objections to this approach raised by Setser and the Government require a different result.
Our decision today follows the interpretive rule they invoke, that we must “give effect . . . to every clause and word” of the Act. United States v. Menasche, 348 U. S. 528 –539 (1955) (internal quotation marks omitted). The first sentence in §3584(a) addresses the most common situations in which the decision between concurrent and consecutive sentences must be made: where two sentences are imposed at the same time, and where a sentence is imposed subsequent to a prior sentence that has not yet been fully served. It says that the district court has discretion whether to make the sentences concurrent or consecutive, except that it may not make consecutive a sentence for “an attempt” and a sentence for an “offense that was the sole objective of the attempt.” And the last two sentences of §3584(a) say what will be assumed in those two common situations if the court does not specify that the sentence is concurrent or consecutive. Giving those dispositions full effect does not demand that we regard them as eliminating sentencing discretion in other situations.
Setser and the Government both suggest that, because §3584(b) directs courts to consider the sentencing factors in §3553(a) in making these decisions, and because some of those factors will be difficult to apply with respect to anticipated sentences, the Act cannot be read to allow judicial discretion in these circumstances. One cannot be sure that the sentence imposed is “sufficient, but not greater than necessary,” §3553(a), the argument goes, if one does not know how long it will actually be. But the district judge faces the same uncertainty if the concurrent-vs.-consecutive decision is left for later resolution by the Bureau of Prisons; he does not know, for example, whether the 5-year sentence he imposes will be an actual five years or will be simply swallowed within another sentence. To be sure, the Bureau of Prisons, if it waits to decide the matter until after the state court has imposed its sentence, will know for sure what sentences it is dealing with. But the Bureau is not charged with applying §3553(a). The factors that guide the agency’s “place of imprisonment” decision do include “the nature and circumstances of the offense” and “the history and characteristics of the prisoner,” §3621(b)(2), (b)(3) (2006 ed.)—factors that are, to be sure, relevant to sentencing but also relevant to selection of the place of confinement; but they also include factors that make little, if any, sense in the sentencing context, such as “the resources of the facility contemplated” and whether the state facility “meets minimum standards of health and habitability,” §3621(b), (b)(1). (These factors confirm our view that §3621 is not a sentencing provision but a place-of-confinement provision.) It is much more natural for a judge to apply the §3553(a) factors in making all concurrent-vs.-consecutive decisions, than it is for some such decisions to be made by a judge applying §3553(a) factors and others by the Bureau of Prisons applying §3621(b) factors.
The final objection is that principles of federalism and good policy do not allow a district court to make the concurrent-vs.-consecutive decision when it does not have before it all of the information about the anticipated state sentence. As for principles of federalism, it seems to us they cut in precisely the opposite direction. In our American system of dual sovereignty, each sovereign—whether the Federal Government or a State—is responsible for “the administration of [its own] criminal justice syste[m].” Ice, 555 U. S., at 170. If a prisoner like Setser starts in state custody, serves his state sentence, and then moves to federal custody, it will always be the Federal Government—whether the district court or the Bureau of Prisons—that decides whether he will receive credit for the time served in state custody. And if he 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 or the Bureau said on the matter. Given this framework, it is always more respectful of the State’s sovereignty for the district court to make its decision up front rather than for the Bureau of Prisons to make the decision after the state court has acted. That way, the state court has all of the information before it when it acts. 4 The Government’s position does not promote the States’ interest—just the interests of the Bureau of Prisons.
As for good policy: The basic claim of Setser, the Government, and the dissent is that when it comes to sentencing, later is always better because the decisionmaker has more information. See, e.g., post, at 7 (“[A] sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence”). That is undoubtedly true, but when that desideratum is applied to the statutory structure before us here it is overwhelmed by text, by our tradition of judicial sentencing, 5 and by the accompanying desideratum that sentencing not be left to employees of the same Department of Justice that conducts the prosecution. 6 Moreover, when the district court’s failure to “anticipat[e] developments that take place after the first sentencing,” Brief for United States 29, produces unfairness to the defendant, the Act provides a mechanism for relief. Section 3582(c)(1)(A) provides that a district court,
“upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction [or that the defendant meets other criteria for relief].”IV
Setser argues that, even if the District Court’s consecutive order was consistent with §3584(a), it made his sentence impossible to implement and therefore unreasonable under the Act, see United States v. Booker, 543 U. S. 220 –262 (2005), 7 in light of the State’s decision to make his sentences concurrent. We think not. There is nothing unreasonable—let alone inherently impossible—about the sentence itself. Setser is ordered to serve a 151-month term in federal custody, and that sentence should run concurrently with one state sentence and consecutively with another.
The difficulty arises not from the sentence, but from the state court’s decision to make both state sentences concurrent. Which of the District Court’s dispositions should prevail: that his federal sentence run consecutively to the state sentence on the parole revocation charge, or that his federal sentence run concurrently with the state sentence on the new drug charge? If the federal sentence is added to the state sentence it will not be concurrent with the new drug charge, and if it is merged in the state sentence it will not be consecutive to the parole revocation charge. This is indeed a problem, but not, we think, one that shows the District Court’s sentence to be unlawful. The reasonableness standard we apply in reviewing federal sentences asks whether the district court abused its discretion. See Gall v. United States, 552 U. S. 38, 46 (2007) . Setser identifies no flaw in the District Court’s decisionmaking process, nor anything available at the time of sentencing that the District Court failed to consider. That a sentence is thwarted does not mean that it was unreasonable. If a district court ordered, as a term of supervised release, that a defendant maintain a steady job, but a subsequent disability rendered gainful employment infeasible, we doubt that one would call the original sentence an abuse of discretion. There will often be late-onset facts that materially alter a prisoner’s position and that make it difficult, or even impossible, to implement his sentence.
This is where the Bureau of Prisons comes in—which ultimately has to determine how long the District Court’s sentence authorizes it to continue Setser’s confinement. Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment that the federal sentence run concurrently with the state sentence for the new drug charges. If the Bureau initially declines to do so, he may raise his claim through the Bureau’s Administrative Remedy Program. See 28 CFR §542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus. See 28 U. S. C. §2241. We express no view on whether those proceedings would be successful.* * *
Because it was within the District Court’s discretion to order that Setser’s sentence run consecutively to his anticipated state sentence in the probation revocation proceeding; and because the state court’s subsequent decision to make that sentence concurrent with its other sentence does not establish that the District Court abused its discretion by imposing an unreasonable sentence; we affirm the judgment of the Court of Appeals.
It is so ordered.APPENDIXES A
18 U. S. C. §3584
“Multiple sentences of imprisonment
“(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 imposed, the factors set forth in section 3553(a).
“(c) Treatment of Multiple Sentence as an Aggregate.—Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.”
18 U. S. C. §3621(b) (2006 ed. and Supp. IV)
“Place of imprisonment.—The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering—
“(1) the resources of the facility contemplated;
“(2) the nature and circumstances of the offense;
“(3) the history and characteristics of the prisoner;
“(4) any statement by the court that imposed the sentence—
“(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
“(B) recommending a type of penal or correctional facility as appropriate; and
“(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
“In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment of that person.”
1 The Bureau of Prisons sometimes makes this designation while the prisoner is in state custody and sometimes makes a nunc pro tunc designation once the prisoner enters federal custody.
2 The dissent is incorrect to say, post, at 7–8 (opinion of Breyer, J.), that only the Second Circuit, in Salley held to that effect. So did the Seventh Circuit in Kanton and the Tenth Circuit in Anderson. The dissent says that Anderson addressed only the question “whether a federal sentence runs from the date of its imposition or from the date of entry into federal custody,” post, at 7–8. That is true enough (and it is true of Kanton as well); but answering that question in a manner that upheld the consecutive federal sentence (i.e., it runs from the date of entry into federal custody) necessarily upheld the sentencing court’s authority to impose the consecutive federal sentence. In fact, Ander-son confronted and specifically rejected the defendant’s argument that “ ‘[n]o court has the authority to impose a sentence consecutive to something that does not exist,’ ” 405 F. 2d, at 493. And, finally, so did the Third Circuit in Lester. The dissent says that Lester addressed only the question “whether a sentence was insufficiently certain for pur-poses of due process,” post, at 8. But that was the defendant’s princi-pal reason (as it appears also to be the dissent’s principal reason) for asserting that the sentencing court had no authority to impose a consecutive sentence. And the Third Circuit rejected not only that reason but “[o]ther arguments advanced by [the defendant] ” attacking the consecutive sentence, 404 F. 2d, at 42. The only contrary federal appellate decision rendered before the Sentencing Reform Act took effect relied upon 18 U. S. C. §4082 (1982 ed.) (the predecessor of §3621) and §3568 (1982 ed.) (repealed by 98Stat. 1987), which provided that a federal sentence “shall commence to run from the date on which such person is received” into federal custody. See United States v. Eastman, 758 F. 2d 1315, 1317 (CA9 1985).
3 The Government contends that the Bureau applies the default rules in §3584(a) “[a]s a matter of discretion” but is not “ ‘bound’ ” by that subsection. Reply Brief for United States 15, n. 5. We think it implausible that the effectiveness of those rules—of §3584(a)’s prescription, for example, that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently”—depends upon the “discretion” of the Bureau.
4 Setser notes that the text of §3584(a) does not distinguish between state and federal sentences. If a district court can enter a consecutive sentencing order in advance of an anticipated state sentence, he asks, what is to stop it from issuing such an order in advance of an antici-pated federal sentence? It could be argued that §3584(a) impliedly prohibits such an order because it gives that decision to the federal court that sentences the defendant when the other sentence is “already” imposed—and does not speak (of course) to what a state court must do when a sentence has already been imposed. It suffices to say, however, that this question is not before us.
5 To support its view that Congress authorized the Bureau to make concurrent-vs.-consecutive decisions, the dissent relies on the fact that the Executive long had what is effectively sentencing authority in its ability to grant or deny parole. That is a particularly curious power for the dissent to rely upon, inasmuch as most of the dissent discusses (in great detail) the Sentencing Reform Act, whose principal objective was to eliminate the Executive’s parole power. Curiouser still is the dissent’s invocation of the Guidelines system, which “tell[s] the sentencing judge how, through the use of partially concurrent and partially consecutive sentences, to build a total sentence that meets the Guidelines’ requirements.” Post, at 4. These “instructions,” ibid., do not cover yet-to-be-imposed sentences, the dissent says, because “the sentencing judge normally does not yet know enough about the behavior that underlies (or will underlie)” such a sentence. Post, at 5. That explains, perhaps, why the Guidelines’ “instructions” to judges do not cover them. But why do not the Guidelines “instruct” the Bureau of Prisons how to conduct its concurrent/consecutive sentencing? If the reason is (as we suspect) that the Sentencing Commission does not have, or does not believe it has, authority to “instruct” the Bureau of Prisons, the dissent’s entire argument based upon what it calls “the purposes and the mechanics of the SRA’s sentencing system,” post, at 6, falls apart. Yet-to-be-imposed sentences are not within the system at all, and we are simply left with the question whether judges or the Bureau of Prisonsis responsible for them. For the reasons we have given, we think it is judges.
6 Of course, a district court should exercise the power to impose anticipatory consecutive (or concurrent) sentences intelligently. In some situations, a district court may have inadequate information and may forbear, but in other situations, that will not be the case.
7 We have never had occasion to decide whether reasonableness review under Booker applies to a court’s decision that a federal sentence should run concurrently with or consecutively to another sentence. The Courts of Appeals, however, generally seem to agree that such review applies. See, e.g., United States v. Padilla, 618 F. 3d 643, 647 (CA7 2010) (per curiam); United States v. Matera, 489 F. 3d 115, 123–124 (CA2 2007). For purpose of the present case we assume, without deciding, that it does.
SUPREME COURT OF THE UNITED STATES
MONROE ACE SETSER, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 28, 2012]
Justice Breyer, with whom Justice Kennedy and Justice Ginsburg join, dissenting.
The Sentencing Reform Act of 1984 seeks to reform federal sentencing practices by creating a federal Sentencing Commission instructed to develop and to promulgate federal Sentencing Guidelines. The provision of the Act here at issue concerns “multiple sentences.” See 18 U. S. C. §3584. It brings into focus a difficult Guidelines-related problem: How should a federal judge sentence an offender where the offender has been convicted of having violated several different statutes? The convictions may have taken place all at the same time. Or, some convictions might have taken place at an earlier time, the offender may already have been sentenced to prison, and indeed the offender may still be serving that sentence. The federal judge must decide the extent to which a sentence attached to one conviction should be served concurrently or consecutively with sentences attached to other convictions.
An understanding of the nature of this general problem and the Sentencing Commission’s statutorily foreseen solutions will help the reader understand why, in my view, the better legal answer to the question before us is that a federal sentencing judge does not have the power to order that a “federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 1.I
The Sentencing Reform Act (SRA) has two overall objectives. See Barber v. Thomas, 560 U. S. __, __ (2010) (slip op., at 7); see also United States Sentencing Commission, Guidelines Manual §1A3, p. 1.2 (Nov. 1987) (USSG) (addressing statutory objectives). First, it seeks greater honesty in sentencing. Instead of a parole commission and a judge trying to second-guess each other about the time an offender will actually serve in prison, the SRA tries to create a sentencing system that will require the offender actually to serve most of the sentence the judge imposes. See Mistretta v. United States, 488 U. S. 361, 367 (1989) (“[The SRA] makes all sentences basically determinate”). Second, the Act seeks greater fairness in sentencing through the creation of Guidelines that will increase the likelihood that two offenders who engage in roughly similar criminal behavior will receive roughly similar sen-tences. See Barber, supra, at ___ (slip op., at 7) (noting that Congress sought to achieve, in part, “increased sentencing uniformity”).
To implement these reforms, the SRA instructs the Commission to write Guidelines that inevitably move in the direction of increased “real offense” sentencing. See USSG §1A2, p. 1.1. (describing how statute, e.g., by insisting upon categories of offense behavior and offender characteristics, leads to this result). In principle, real offense sentencing would impose the same sentence upon different offenders who engage in the same real conduct irrespective of the statutes under which they are charged. Real offense sentencing, for example, would mean that two individuals, both of whom rob a bank and injure a teller, would receive the same sentence even if the Government charges one of them under a bank robbery statute and the other under an assault statute. See, e.g., USSG App. A (listing federal statutory offenses, while keying them to specific individual Guidelines that determine sentence based upon likely actual behavior). In the event, the Guidelines move the sentencing system in this direction while simultaneously recognizing that other factors require considerable modification of the real offense principle. See USSG §1A4(a) (“real offense vs. charge offense sentencing”).
Nonetheless the “real offense” goal influenced the Act’s, and the Commission’s, objectives in respect to the sentencing of an offender with multiple convictions. Insofar as several convictions arise out of the same course of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were all part of a single crime and sentence accordingly. But, insofar as the crimes underlying the convictions arise out of different courses of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were not part of a single crime and should see that the ultimate sentence reflects that fact.
To achieve these objectives is easier said than done. For one thing, it requires a definition of what counts as the same course of behavior. The Guidelines set forth that definition in §1B1.3, p. 1.17 (“Relevant Conduct”). For another thing, statutes and Guidelines that set forth related instructions must take into account the fact that sentencing-related circumstances can prove highly complex. To take a fairly simple example, suppose that a defendant is convicted of both robbery and impersonating a federal official, that he has engaged in a single course of behavior, but that neither the robbery nor the impersonation Guidelines take account of the other. Instructions about concurrent/consecutive sentences must give the judge an idea about what to do in such a case. They must also take account of the fact that a maximum penalty contained in a statute will trump a greater penalty contained in a Guideline. And they must tell the judge (faced with multiple convictions) what to do where that is so.
Reflecting these, and other, complexities, the Guidelines contain complex instructions about how to sentence where the offender is convicted of “Multiple Counts,” see USSG §3D, or has previously been convicted of a crime for which he is “subject to an Un-discharged Term of Imprisonment,” see §5G1.3. The Guidelines also tell the sentencing judge how, through the use of partially concurrent and partially consecutive sentences, to build a total sentence that meets the Guidelines’ requirements. See §§5G1.2(d), 5G1.3.
With this background it becomes easier to understand the statutory provisions before us. They reflect the fact that Congress expected sentencing judges, when faced with a defendant convicted of multiple crimes, to construct a sentence that would, at least to a degree, reflect the defendant’s real underlying behavior. Where two convictions reflect in whole or in part the same behavior, the overall sentences should reflect that fact, say by running concurrently.
Accordingly, the statute says that “[m]ultiple 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.” 18 U. S. C. §3584(a). And that statement reflects the fact that often (but not always) multiple convictions after a single trial will reflect a sin-gle course of behavior (different aspects of which violate different criminal statutes). The statute also says that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Ibid. This statement reflects the fact that several convictions imposed after different trials are more likely to reflect unrelated behaviors. In the first instance that the statute addresses, concurrent sentences are more likely to be appropriate; in the second, consecutive sentences are more likely to be appropriate. But that is not always so. Thus the statutory provisions assure sentencing judges that they retain the power to reach a different conclusion.
At this point, I would ask the question that this case poses. Why does the statute say nothing about a sentencing judge imposing a sentence that might run consecu-tively with a sentence that a (typically different) judge has not yet imposed? The answer is this: Because the sentencing judge normally does not yet know enough about the behavior that underlies (or will underlie) a sentence that has not yet been imposed. Normally the sentencing judge does not know, for example, (a) what that sentence will be, (b) whether the behavior underlying that later sentence constitutes part of the same course of behavior that underlies the present sentence or, instead, is totally separate from the behavior underlying the present sentence, or (c) is partly the same and partly different. Even if the judge has an idea about what will happen, he does not know precisely what will happen; and precision in this matter is important.
In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing-proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences.
Of course, the Court is correct when it says that eventually the sentences will run (either wholly in or in part) concurrently or consecutively. And someone must decide how they will run. Ante, at 2–3. But the Court is not correct when it says that this someone should be the first federal sentencing judge. Rather, the Executive and Judicial Branches have devised a system that can draw upon the intentions of that first federal judge, while applying them in light of actual knowledge about what later happened. The Bureau of Prisons (BOP) in effect makes the consecutive/concurrent decision after considering, among other things, “any statement by the court that imposed the sentence,” including statements “concerning the purposes for which the sentence to imprisonment was determined to be warranted.” 18 U. S. C. §3621(b)(4)(A). And its program statement provides that it will review the “intent of the federal sentencing court” when deciding whether in effect to make an earlier federal, and later state, sentence concurrent or consecutive. Dept. of Justice, BOP, Program Statement 5160.05: Designation of State Institution for Service of Federal Sentence 4 (Jan. 16, 2003). The Bureau exercises this authority by designating (or refusing to designate) the state prison where an offender is or will be incarcerated pursuant to his state sentence as the place where he will serve his federal sentence. 18 U. S. C. §3621(b).
This exercise of authority by the Executive Branch is not constitutionally surprising. After all, “federal sentencing” has “never . . . been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.” Mistretta, 488 U. S., at 364. And, until fairly recently the federal BOP decided (via parole) the far more global question of just how long (within broad limits) each imprisoned offender would serve. See id., at 367. Thus, the present Bureau involvement represents a further practical accommodation to a fact about the world, namely that the initial sentencing judge typically lacks important sentencing-related information about a second sentence that has not yet been imposed.II
Given the purposes and the mechanics of the SRA’s sentencing system, just described, the better reading of the “multiple sentences” provision is a reading that denies a sentencing judge the authority to “order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 1. For one thing, nothing in the statute explicitly grants the judge that authority. The text refers to other circumstances, those that involve earlier or contemporaneous (multiple-count) convictions, while it does not refer to later imposed sentences.
For another, exercise of any such authority would more likely hinder than advance the basic objectives of the SRA. As I have explained, supra, at 2–5, a sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second conviction rests upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well.
Further, I can find no significant tradition (pre-Guideline or post-Guideline) of federal judges imposing a sentence that runs consecutively with a sentence not yet imposed. The Court refers to four Courts of Appeals cases for the proposition that “traditionally” a judge possessed this authority. Ante, at 4. The opinions in three of the cases are each about a page long and do not discuss the matter here at issue. (They assume, without significant discussion, the existence of the relevant sentencing authority.) See Anderson v. United States, 405 F. 2d 492, 493 (CA10 1969) (per curiam) (addressing the question whether a federal sentence runs from the date of its imposition or from the date of entry into federal custody); United States v. Kanton, 362 F. 2d 178, 179–180 (CA7 1966) (per curiam) (same); United States ex rel. Lester v. Parker, 404 F. 2d 40, 41 (CA3 1968) (per curiam) (addressing the question whether a sentence was insufficiently certain for purposes of due process). The fourth case, Salley v. United States, 786 F. 2d 546, 548 (CA2 1986), discusses the issue directly and takes the Court’s position. But, like the other three cases, it was decided before the Guidelines took effect (i.e., when the reasons for denying the authority were less strong). And, one judge on the panel disagreed in a separate opinion, and in my view has the better of the argument. See id., at 548–550 (Newman, J., concurring in result); see also United States v. Eastman, 758 F. 2d 1315, 1317 (CA9 1985) (holding that a judge lacks the here-relevant sentencing power). In any event, these instances are too few to constitute a “tradition.”
In fact the Senate Committee Report accompanying the SRA provides strong evidence that there was no such tradition. S. Rep. No. 98–225 (1983). That Report thoroughly surveyed prior law. It says that the SRA is a “comprehensive statement of the Federal law of sentencing,” that it “describes in detail the kinds of sentences that may be imposed,” and that §3584 “provides the rules for determining the length of a term of imprisonment for a person convicted of more than one offense.” Id., at 50, 125–126. It further states that “[e]xisting law permits the imposition of either concurrent or consecutive sentences,” which practice it then describes as limited to two scenarios: “[t]erms of imprisonment imposed at the same time,” and those “imposed on a person already serving a prison term.” Id., at 126. It says the same when describing how §3584 is supposed to work. In neither place does it refer to a practice of, or any authority for, imposing a prison term that runs consecutively with a future term not yet imposed.
In addition, a grant of such authority risks at least occasional incoherence. For example, the statute, after setting forth the court’s authority to impose a sentence of imprisonment that runs either concurrently or consecutively with other terms imposed in the same or in earlier proceedings, creates an exception that says: “except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt.” 18 U. S. C. §3584(a). Now suppose the Court were right, and a sentencing judge had the authority to run a present term consecutively with a not-yet-imposed future term. Would it not be important to apply this same “attempt” exception in such instances as well? Indeed, the exception is phrased in categorical terms, and the legis-lative history in no way indicates that the exception ap-plies only occasionally. See S. Rep. No. 98–225, at 126 (“[C]onsecutive terms of imprisonment may not, contrary to current law, be imposed for [attempt] and for an offense that was the sole objective of the attempt” (emphasis added)). Yet it is difficult, if not impossible, to read the statute’s language as broadening the exception beyond the statutorily listed scenarios.
Or, consider, for example, an offender tried for arguably related crimes in two different federal courts at two different times. The Court’s reading would not only allow the second judge to order concurrent service with the first sentence if warranted, as the statute explicitly permits, but it would also allow the first judge to make an analogous but anticipatory order based upon the sentence he expected the second judge would impose. But where complex forms of criminal behavior are at issue, these different judges may reach different conclusions. The result may well be conflict and confusion.
Finally, as I said above, supra, at 5–6, a more practical solution to potential problems presented by a future sentencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal and state sentences and is well situated to take into account both the intent of the first sentencing judge and the specific facts developed in the second sentencing. The relevant statute provides that “[t]he Bureau may designate any available penal or correctional facility . . . , whether maintained by the Federal Government or otherwise . . . .” 18 U. S. C. §3621(b). And in reliance on this authority, the Bureau has concluded that it has the power to “designat[e] . . . a state institution for concurrent service of a federal sentence.” Program Statement 5160.05, at 1. The Program Statement further provides that exercise of this power will be guided by, in part, “the intent of the federal sentencing court” in addition to “any other pertinent information regarding the inmate.” Id., at 4.
The Court’s only criticism of this system is that it is less “natural” to read the statute “as giving the Bureau of Prisons what amounts to sentencing authority.” Ante, at 8. But what is unnatural about giving the Bureau that authority? The sentencing process has long involved cooperation among the three branches of Government. Mistretta, 488 U. S., at 364. And until the Guidelines the BOP itself decided, within broad limits, precisely how much prison time every typical offender would serve. Even today, it still decides that question within certain limits. 18 U. S. C. §3624 (2006 ed. and Supp. IV) (delegating to the BOP authority to calculate “good time credit,” which in effect reduces a prisoner’s term of incarceration); see also Barber, 560 U. S., at __ (slip op., at 1). Although Congress limited the Bureau’s authority in this respect, there is nothing unnatural about leaving the Bureau with a small portion of that authority—particularly where doing so helps significantly to alleviate a small, but important, technical problem in the application of the SRA’s sentencing system.* * *
Because the Court does not ask why the “multiple sentencing” provision leaves out the authority at issue—concerning the not-yet-imposed sentence—it reaches what I believe is the wrong result. Consequently, with respect, I dissent.
ORAL ARGUMENT OF JASON D. HAWKINS ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first this morning in Case 10-7387, Setser v. United States.
Mr. Hawkins: Mr. Chief Justice, and may it please the Court:
This case concerns whether, in passing the Sentencing Reform Act of 1984, Congress granted to the Federal district court the authority to order its Federal sentence to run consecutively to a -- a sentence which has yet to be imposed and may never come to fruition.
The text of 3584, its structure and its history all point to the conclusion that the court lacks this power.
We believe the question should start and end with the statute's text.
When a defendant receives multiple terms of imprisonment, they must bear one of three relationships to each other.
Either one is imposed before the other, the other is imposed before the one, or they are imposed at the same time.
Justice Sonia Sotomayor: Counsel, in the third sentence of this provision, on its face, does Mr. Setser fit into it?
Mr. Hawkins: --No, Your Honor.
He does not.
Justice Sonia Sotomayor: "Multiple terms of imprisonment imposed at different times run consecutively. "
What is unclear about those words?
Mr. Hawkins: Your Honor, that term can only--
Justice Sonia Sotomayor: The words are not unclear.
We have to do the statutory interpretation that you want?
Mr. Hawkins: --Your -- Your Honor, the words can only be read in the context of the first -- of the first sentence.
We believe that the third sentence only applies where the Court had the authority to actually order this but remained silent.
Justice Sonia Sotomayor: Some fairly respected jurists below, Judge Easterbrook and Judge Fletcher, two different circuits, have read it as taking care of all those situations that the other two sentences don't cover.
Why is that an irrational reading?
Mr. Hawkins: Your Honor, I -- I think it has to be read -- the third sentence has to be read in its place within the statute, and I think that the third sentence refers exclusively to circumstances where the defendant was already serving another term of imprisonment at the time of the Federal sentencing.
I think we know this because of the parallel structure of 3584(a).
Justice Sonia Sotomayor: But that assumes the answer, is what I'm saying to you.
If you give each sentence its plain meaning, why is -- why is Mr. Setser not within the plain meaning of the third?
He -- he had multiple terms of imprisonment, imposed at different times.
Mr. Hawkins: --Yes, but those terms of imprisonment weren't -- there was no term of imprisonment imposed at the time of his Federal sentencing.
He was not serving an undischarged term of imprisonment.
And we believe that the natural flow of the statute, the default rule only comes in place if the court had the power to sentence under the first sentence.
Justice Anthony Kennedy: You would say that at the time of sentencing, there were no multiple terms of imprisonment.
Is that your point?
Mr. Hawkins: That is correct, Your Honor.
At the time of the Federal sentencing, Mr. -- Mr. Setser was not subject to an undischarged term of imprisonment.
Justice Ruth Bader Ginsburg: What difference does it make for him?
He served his State time.
He came over to serve his Federal sentence.
He didn't get credit for the 2-1/2 years he spent in -- in State.
But what is the consequence?
How much -- what is the difference to the defendant in this case?
Mr. Hawkins: Your Honor, we -- we believe that the order, what the order did was bind the court.
I'm sorry, the -- the order bound the Bureau of Prisons.
And so what it does -- what happens is, Mr. Setser is not able to petition the Bureau of Prisons to allow that sentence to begin running from the time of the Federal sentencing.
So the difference, Your Honor, is 1 year, 6 months, and 23 days that we believe that he is entitled to credit for.
Justice Antonin Scalia: And this is--
Justice Ruth Bader Ginsburg: Entitled to credit or you could seek it?
I mean, what would it -- he has the State time and he -- 2-1/2 years, and then he has his Federal sentence.
Why would you be entitled to any credit?
Mr. Hawkins: Because -- because, Your Honor, the court ordered that the -- the Federal sentence to run concurrently to that 10-year sentence that he received in State court.
And so we believe he is entitled to credit for that -- for that sentence.
Justice Samuel Alito: In situations like this, somebody is going to have to make the decision whether the Federal sentence and the subsequently imposed State sentence run concurrently or consecutively.
And now you're arguing that that should be done by the Bureau of Prisons.
Do you think in general that is better for defendants than a rule that would allow the sentencing judge in Federal court to make that determination?
Mr. Hawkins: Your Honor, in our estimation the question is not the who, but the when.
And at the time, at the Federal sentencing, the Federal judge did not have the complete information to make the proper judgment in this case.
He had no idea what that State term of imprisonment was going to be.
So in our estimation, it is better that -- that the Bureau of Prisons has all the information to make this decision.
It will actually know what the State term of imprisonment is.
I'm not here to advocate that the system that the Bureau of Prisons uses -- uses is perfect--
Justice Samuel Alito: Why would the -- why would the exact length of the sentence imposed by the State court be relevant to the determination made by the sentencing judge?
I thought the sentencing judge's reasoning was that the -- the undischarged term of imprisonment that was going to be imposed on the offense for which probation had previously been granted and there had been a violation of the probation, that that had nothing to do with his subsequent Federal drug charges, and therefore the Federal drug charges should run consecutively to that, but should be concurrent to any sentence imposed by the State court on the State drug charges.
What -- you know, what's wrong with that reasoning, and what additional insight relevant to that reasoning would be obtained by waiting until after the sentence was imposed?
Mr. Hawkins: --Well, Your Honor, at the time that the Federal judge passed this sentence, he had no idea what was going to happen in either case.
But more importantly, with regard to the term of probation, the Federal judge had no idea whether that term was going to be revoked, whether it would be modified, or whether he would receive any sentence of -- of imprisonment at all.
And in making the judgment on whether those terms should run concurrently or consecutively, Your Honor, 3584(b) directs the Court to look at the factors of 3553(a) in making that determination.
And it would be impossible to make that determination under 3553(a) whether the sentence is adequate to deter, whether that sentence protects the public, without knowing what that State term of--
Justice Samuel Alito: Well, that's interesting.
Mr. Hawkins: --imprisonment actually is.
Justice Samuel Alito: Do you think that the Bureau of Prisons is bound by those factors when they make the decision later?
Mr. Hawkins: Your Honor, the -- the Bureau of -- of Prisons is bound by the factors of 3621(b), and several of those factors match up with the factors in 3553(a).
It has to look at the nature and circumstance of the crime, the characteristics of the defendant.
It has to look to the United States Sentencing Guidelines, and it also has to take in the view of what the Federal judge believes should have happened.
Justice Antonin Scalia: --Where is--
Mr. Hawkins: And to the extent--
Chief Justice John G. Roberts: Where is all that that you just read, that they're bound by all these things?
Where do I find that?
3621(b), is it cited in any of your briefs?
Or pardon me.
Is 3621(b) set forth in any of the materials?
I have it in front of me, but I -- is it in the government's brief or--
Mr. Hawkins: --Your Honor, I believe it is in -- in the Solicitor General's -- in the appendix to the Solicitor General's brief, Your Honor.
Chief Justice John G. Roberts: --Well, I'm looking at -- I guess I got this off -- somebody got this off-line for me.
I am looking at the program statement of the Bureau of Prisons.
And it says what the regional directors are supposed to look at is the intent of the Federal sentencing court or the goals of the criminal justice system.
So you've got some guy deciding whether the goals of the criminal justice system require this person to serve an extra 10 years or not?
Mr. Hawkins: Well, Your Honor, I think that what the -- the law requires is that the Bureau of Prisons has to look at these factors under 3621(b), and those program statements are trying to define what those exact factors are.
Chief Justice John G. Roberts: I mean, doesn't it seem strange to you that a Federal bureaucrat sitting, a regional director -- I guess there are about a half dozen of them -- sits somewhere and decides whether a defendant -- say there's a 10-year Federal sentence, 10-year State sentence, and that person says, well, I think he ought to serve another 10 years or I think he's done.
Mr. Hawkins: Well, Your Honor, to -- to be clear, I mean, Mr. Setser is going to have to serve a 151-month term of imprisonment no matter what.
But the bureaucrat that -- that you are talking about, the bureaucrat will be -- only be making that determination after having the complete information which the Federal judge--
Chief Justice John G. Roberts: Well, I know, but -- but it's a big deal to be sentenced to, in my hypothetical, another 10 years in prison.
I don't care how much information the bureaucrat has.
Mr. Hawkins: --Well, Your Honor, but still, that -- that person has the -- has the information before it, and it's also subject to judicial review under 2241.
I -- I would point out that there is a process where the Petitioner can -- or the prisoner can ask for this--
Justice Sonia Sotomayor: But judicial review of what?
Not of the -- not of whether that was the desire of the State court or not.
Judicial review as to whether they abused their discretion?
Mr. Hawkins: --Yes, Your Honor.
And I believe that's -- that's the same discretion that the Court has when its deciding a sentence on direct appeal.
Justice Sonia Sotomayor: So you are going to make a bureaucrat equal to a judge in making the most important decision that a defendant faces: How much time he should spend in jail.
So a bureaucrat rather than a judge decides whether he's going to tack on a year and a half, 5 or 10, or whether he's going to let the defendant serve it concurrently?
Mr. Hawkins: Your Honor, again, it -- it's not the who for us, but the when.
Justice Sonia Sotomayor: It's not -- it's not a who or when, because the State court judge's recommendation is not binding on BOP.
It has said repeatedly, hasn't it?
Mr. Hawkins: Your Honor, I'm aware of no--
Justice Sonia Sotomayor: Just answer that question.
Hasn't BOP said that a State court recommendation is not binding on it?
Mr. Hawkins: --That -- that is correct, Your Honor.
But I -- I would point to the fact that -- what that -- I mean--
Justice Sonia Sotomayor: So it can't be just who -- it can't be just when.
It's who's going to make the decision.
Mr. Hawkins: --Well, yes, Your Honor.
But the bureaucrat at least has all the information before it.
And if we go to--
Justice Antonin Scalia: --Well, isn't it true that the bureaucrat used to make that decision not too long ago?
Mr. Hawkins: --Yes, Your Honor.
Justice Antonin Scalia: When we had the parole system.
Before we had the sentencing guidelines, it was up to the Bureau of Prisons whether to give parole or not, right?
Mr. Hawkins: Yes, Your Honor.
Justice Antonin Scalia: Some bureaucrat in the Bureau of Prisons, I guess.
Mr. Hawkins: Yes, Your Honor, along with good time credits--
Justice Antonin Scalia: It's not unthinkable.
Mr. Hawkins: --No, Your Honor, prior to the passage of the SRA, the--
Justice Sonia Sotomayor: But wasn't the SRA passed and this provision passed in part to take that decision away from the bureaucrat?
Mr. Hawkins: --Well, it was a -- it was passed to take the decision away from the bureaucrat, that the courts could not order a Federal sentence to run concurrently with an undischarged State term of imprisonment.
That gave that power back to the court.
Justice Sonia Sotomayor: Well, let's answer Justice Scalia's point.
Wasn't the SRA passed in part because of the dissatisfaction with the fact that the parole board used to make this decision, and they wanted to put it back in the hands of judges?
Mr. Hawkins: That's part of the reason, Your Honor.
But in passage of 3621 it also highlighted the fact that it was not seeking to take away the bureaucratic authority that the Bureau of Prisons has for designation.
And back to the--
Justice Sonia Sotomayor: I don't know why it takes away from them on that score.
They can choose whatever facility they want within the constraints imposed by a judge in terms of the length of the sentence.
Mr. Hawkins: --Well, I mean -- I guess, yes, Your Honor, that is part of it, but that only comes into play when the first sentence does not apply and when the court does not have the requisite information.
In our estimation it is better for the latter sentencing entity, that with the most sentencing information, to be able to make this -- this ultimate determination in -- in looking at the Federal court's views, versus allowing a Federal judge who's prognosticating about what the sentence might be and issue a binding order.
And if there are no further questions, I will reserve the remainder of my rebuttal time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF WILLIAM M. JAY, ON BEHALF OF THE RESPONDENT, IN SUPPORT OF THE PETITIONER
Mr. Jay: Mr. Chief Justice, and may it please the Court:
Federal district courts do decide how long a defendant should be in prison for his Federal crime, but for many years, both before and after the Sentencing Reform Act, the Attorney General through the Bureau of Prisons has decided where the sentence will be served and when it shall commence.
Justice Antonin Scalia: I'm not clear on what the -- what the government's view of whatever you want to call it, inherent judicial sentencing power is.
You -- you -- before section 3584 was passed, there -- there was the power on the part of the Federal courts to decide whether sentences should run concurrently or sequentially, right?
Mr. Jay: Not with a State sentence, Your Honor.
Before section 3584(a) was passed, a Federal district court had no authority to specify that its Federal sentence should run concurrently with a State sentence that the defendant was already serving.
Justice Antonin Scalia: How do you know?
Mr. Jay: Well, that's--
Justice Antonin Scalia: I mean, it did not -- what authority it did have did not come from a statute, right?
Mr. Jay: --Well, if it had had such authority, Justice Scalia, it would have overridden the Attorney General's authority.
That's why we know it didn't have it.
Justice Antonin Scalia: Where is the Attorney General's authority prescribed?
Mr. Jay: --The Attorney General's authority--
Justice Antonin Scalia: His authority to say where the sentence will be served?
Mr. Jay: --Precisely, Justice Scalia.
Justice Antonin Scalia: Oh, that -- that seems to be quite--
Mr. Jay: If you look up--
Justice Antonin Scalia: --quite fanciful.
Justice Stephen G. Breyer: --really interesting, because I did go back and look at the '79 Senate report on the S. 1, which was the whole reform, from beginning to end, and my reading of that section suggests to me that they thought past practice was exactly what they wrote in this statute.
Now in the -- at least that's how I read it.
Maybe I didn't read it carefully enough.
But I thought they were thinking that the Federal judge does have the power to sentence concurrently or consecutively with a term that a Federal court or a State court has imposed in the past, but -- but you can't do this monkey business that they're -- I agree with you on that.
There was nothing about trying to make something concurrent or consecutive with a -- a State term that hasn't yet been imposed.
You couldn't do it; you can't do it; it just gets into a -- at least not with a consecutive.
Mr. Jay: --Let me see if I can answer both Justice Scalia and Justice Breyer.
There are cases that we cite at page 16 of our reply brief.
Those same cases, Justice Breyer, you may want to look at the Senate report on -- on what actually became section 3584, page 126 -- sorry, page 127 and note 314, which says that it changes the law.
It recognized that the law -- specifically citing a Ninth Circuit decision, which we also cite in our brief, because the Attorney General has the power to designate any facility, Federal or State, and that's -- that is carried forward today in section 3621(b).
Because the Attorney General has the authority to designate any such facility, a Federal court before the passage of section 3584(a) had no authority to order that the Federal sentence commence right away and that the defendant be allowed to serve it while also serving--
Justice Ruth Bader Ginsburg: He could recommend it.
He could recommend it, could he not?
Mr. Jay: --Absolutely, Justice Ginsburg.
He could recommend it, just as he can today.
Chief Justice John G. Roberts: You said Federal or State.
Where does it say that in 3621?
Mr. Jay: Section 3621(b), Your Honor.
If you look at subsection (b)--
Chief Justice John G. Roberts: Yes.
Mr. Jay: --the second sentence,
"the Bureau may designate any available penal or correctional facility. "
--skip forward a little bit --
"whether maintained by the Federal Government or otherwise-- "
Justice Anthony Kennedy: In other words, what the statute does is it's phrased in terms of place, but it really has consequences as to time.
Einstein would have loved it: You can't define space without time.
But -- but -- I take it that it can also be retroactive.
If you have a prisoner who has served -- has been sentenced in the Federal system, then goes to the State and is serving in a State facility, he then comes back to the BOP, the BOP can retroactively say we designate the place of imprisonment for the last 3 years as that State prison where you have been serving and we credit you with time served; is that the way it works?
Mr. Jay: --That is how it works.
Justice Antonin Scalia: Nunc pro tunc, right?
Justice Anthony Kennedy: That -- that's an amazing interpretation.
Justice Antonin Scalia: You get that out of this -- this lean language here?
Justice Anthony Kennedy: I understand that's your interpretation of the statute, but I -- I understand that -- that's the way it's being done.
Mr. Jay: That is the way it's being done, Justice Kennedy.
Indeed, every time the bureau designates a Federal prison or a State prison, it's after the person comes into Federal custody, except in cases where the person voluntarily surrenders.
Chief Justice John G. Roberts: Or -- or what if it's a situation where he goes into one of these prisons that are run by a private entity, right, whether the Federal Government or otherwise, right?
And so maybe the Federal Government -- I don't know how often it might do it -- they -- you use facilities that are privately run, right?
Mr. Jay: Privately run, State facilities, Federal facilities.
Chief Justice John G. Roberts: Okay.
So why isn't that what they meant when they said
"whether maintained by the Federal Government or otherwise? "
I think if they want -- wanted to say State or Federal, that's what they would have said.
Mr. Jay: Mr. Chief Justice, Federal inmates since the passage of the first Federal crime in 1790 have served their time in State prisons.
There were no Federal penitentiaries for more than 100 years.
The attorney -- service of a Federal sentence in State prison was the norm, even after the construction of -- of Federal penitentiaries.
Justice Samuel Alito: It seems to me that the question of how long someone should spend in prison, which is what's involved in determining whether -- deciding whether a sentence is going to be served consecutively or concurrently, is very different from determining where the sentence is going to be -- where a sentence is going to be served.
Isn't this a very strange reading of -- of 3621, to say that that grants the BOP the authority to make this concurrent/consecutive determination?
Mr. Jay: I don't think so at all, Justice Alito.
Let me give two reasons why.
The first is that before section 3584 was enacted, this -- the predecessor of this statute, which was section 4082, was the reason that Federal courts recognized that they didn't have the power to prescribe concurrent treatment of a Federal sentence with a previously existing State sentence.
That's one point.
The second point is, as Mr. Hawkins mentioned, the quantum of Federal punishment, the punishment for the Federal offense, that's up to the Federal district judge to prescribe; but where -- where that time will be served, and whether the time has to commence before, after or during the defendant's service of another sentence, that's a where and when question.
And where and when questions have always been up to the Attorney General.
Justice Elena Kagan: Mr. Jay?
Mr. Jay: Yes.
Justice Elena Kagan: Can I -- can I take you back to 3584?
So 3584 talks about these two situations, simultaneously imposed terms and undischarged terms, and let's assume that all three sentences talk about only those two situations.
The premise of your argument is that in talking about those two situations Congress rejected judicial authority when it came to a third situation.
And I guess I want to find out from you why that is.
I mean, I want to stipulate, I guess, that nobody had this third situation in mind.
The third situation is a very uncommon situation, and so just assume with me that Congress simply just wasn't thinking about this third situation.
That's an assumption of the question.
What should we do, then?
Why would we treat this as exclusive?
Mr. Jay: Well, I will -- I will assume with you, Justice Kagan, although you know that I disagree, that the -- that this is conscious.
But two points: first, there was no inherent authority beforehand, so Congress couldn't have been carrying forward existing practice, because, as I've said, there was no inherent authority for district courts to make this decision before.
Justice Elena Kagan: Well, let's just say Congress just didn't know.
It was not on Congress's radar screen.
Why would we treat this as exclusive as to this third situation?
Mr. Jay: You would do it this way because -- because the limitations are so clear and because, as Mr. Hawkins said, there is a universe with sort of three possible relationships.
Either the Federal term comes before the State term, after the State term, or two Federal sentences can come at the same time.
So Congress prescribed very carefully that if one of those or if the second of those is met, then the terms may run concurrently or consecutively.
But by allowing the third, the only other possibility--
Justice Elena Kagan: Well, now you are back with my assumption.
You are suggesting that Congress musthave had this third situation in mind.
And I'm saying no; the third situation is peculiar, and Congress didn't have it in mind.
Mr. Jay: --Well, its peculiarity, Justice Hagan, doesn't take away from the fact that if you let this situation in then the limitations have no meaning.
Justice Stephen G. Breyer: You are talking linguistically that I thought one Congress probably did have it in mind.
I agree with you about that.
But leave that out.
How do you do it?
You are a Federal judge.
The point of the Federal guideline is to create a sentence with qualifications that reflects the real conduct in the world that the defendant engaged in.
All right, so we work that out.
That's now 3 years.
Now, our problem is that the State judge may eat up some of that 3 years or may make the sentence concurrent when it should be consecutive, because the conduct's different.
So I the Federal judge say: You are convicted of a drug crime; you get 3 years.
I know there is a question here about whether there is a separate gun crime.
Now, I want these 3 years to run consecutive with the State conviction for a separate behavior.
Now, that's what I want.
Now, are it's in the past, the State sentence, I can do it.
But where it hasn't been happening yet, how do I do it?
I say I want it consecutive, but the State court judge who later will have control of the case can say: I put my extra 2 years and make it concurrent with the State sentence.
"You see? "
"It's a problem. "
"It's a practical problem. "
"Now, maybe I'm wrong in what I've just said, which is why I said it, because I'm prepared to have you tell me I'm wrong, there is no practical problem. "
"But I want to hear it. "
Mr. Jay: It's not a practical problem, Justice Breyer, for a couple of reasons.
Justice Stephen G. Breyer: All right.
That's why I asked.
Mr. Jay: Number one -- number one, the judge doesn't know -- you asked us to assume there has been a conviction in the State, maybe just not--
Justice Stephen G. Breyer: No--
Mr. Jay: --Maybe just not--
Justice Stephen G. Breyer: --There has not been a conviction.
Mr. Jay: --That just highlights my point.
There hasn't been a conviction yet, let alone a sentence.
There may never be a conviction, and -- but if the judge wants to guard against that eventuality, the judge can make a recommendation.
And there are two salutary things about making a recommendation--
Justice Stephen G. Breyer: How does the judge stop the State court judge later from making his conviction for a separate form of behavior run concurrently with the Federal sentence?
How does he stop that?
What power does he have over State court.
Mr. Jay: --I don't think I or either of my friends who are going to argue today are suggesting that the Federal judge has power to order the State court not to do something.
Justice Stephen G. Breyer: Correct.
Then how can he stop it?
Mr. Jay: Well, the way that sovereigns work out who gets to punish, if they both want to punish--
Justice Stephen G. Breyer: You may have missed my point.
My point is because he can't stop it is why you're right in this case.
Mr. Jay: --I am delighted to hear that you think we are right, Justice Breyer.
But I want to -- I do want to give you an answer to your question about why this is not a practical problem.
The Federal judge can give -- can make a recommendation that says: If he's convicted and if he's sentenced to a particular term in the State court, I recommend that the Bureau of Prisons not let him serve them -- concurrently.
Chief Justice John G. Roberts: So that -- so that 20 years later after the defendant has served his mandatory minimum sentence, your friend in the Bureau of Prisons regional office is supposed to go look back and see what the judge said 20 years ago?
Mr. Jay: Judges make recommendations all the time, Mr. Chief Justice.
Chief Justice John G. Roberts: I don't think that is responsive to the point I just made, that they make recommendations all the time.
I'm talking about the effectiveness of the recommendation 20 years later.
Mr. Jay: --As the Court is aware, the Administrative Office's standard form for the judgment in a criminal case allows the judge to make recommendations to the Bureau of Prisons.
So this will be in the judgment, the very judgment that the Bureau of Prisons will be looking at, whether it's a week later or 20 years later.
And if the--
Justice Ruth Bader Ginsburg: Mr. Jay, what does the "or" mean.
Maybe the judge -- it was 20 years ago and maybe the judge said nothing.
It's -- what was the intent of the sentencing court or the goals of the criminal justice system.
Mr. Jay: --Your Honor is reading from the Bureau of Prisons policy statement.
Justice Ruth Bader Ginsburg: Uh-huh.
Mr. Jay: If you go on in that policy statement, it alludes to other considerations that the Bureau looks at.
And what that maps onto is the factors in section 3621(b).
And I can represent to the Court that when -- when the -- when an inmate asks for concurrent treatment in this fashion, the Bureau's central facility for designation and sentence computation goes through those factors in an individualized way and makes -- makes a decision.
That then is reviewable.
Justice Sonia Sotomayor: Mr. Jay--
Justice Ruth Bader Ginsburg: Do they take -- do they take account of the -- the defendant's behavior in the State facility?
Is that a factor?
Mr. Jay: In Federal or State custody, Justice Ginsburg, it may be a factor, yes.
Justice Ruth Bader Ginsburg: Which is something that the judge couldn't know.
Mr. Jay: That's certainly correct.
And on the flip side is if the defendant has behaved in an exemplary way, then either the judge -- the judge may indeed change his recommendation.
We have cited a case in our brief where a judge--
Justice Antonin Scalia: I thought we tried to get rid of all of that when we abolished the parole system.
I thought we tried to take away from the bureaucrats the decision to let somebody out earlier because he's been a good boy and hold him longer because he hasn't.
Mr. Jay: --Mr. Setser has been sentenced to 151 months for his Federal crime.
Nothing the Attorney General does is going to shorten that in a way not authorized by statute.
It doesn't make the sentence an indeterminant one.
It's about where he is going to serve it.
Justice Sonia Sotomayor: --Mr. Jay, there is some force to your, to Petitioner's argument that federalism should be respected, that Federal courts -- the State judges and their individual wishes should be respected and followed by BOP actually.
The system you're proposing actually takes away from both Federal judges control over the sentencing decision.
If Federal judges recommend a consecutive sentence, then the State judge can take that into account in setting how much time they think is warranted for their crime in addition or different from, and the judge if he wants it to run concurrently the way Justice Breyer said, he could just give a zero.
He knows what the Federal judge wants.
Chief Justice John G. Roberts: You may answer briefly.
Justice Sonia Sotomayor: The bottom line--
Mr. Jay: Thank you, Mr. Chief Justice.
The -- the State judge can still know what the Federal judge recommends.
If it's not -- it just And in won't be binding under our view of the statute.
any event, having the second decisionmaker make the decision armed with all the information is still preferable to having a premature determination locked in in a judgment.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Jay: Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Mr. Young.
ORAL ARGUMENT OF EVAN A. YOUNG, ON BEHALF OF AMICUS CURIAE, IN SUPPORT OF THE JUDGMENT BELOW
Mr. Young: Mr. Chief Justice and may it please the Court:
As this Court stated nearly a century ago in Ex parte United States, under our constitutional system the right to impose the punishment provided by law is judicial.
Congress does not transfer such core authority from one branch to another without clearly and expressly saying so.
Neither section 3584 nor any other provision of the Sentencing Reform Act even remotely approaches the clarity that Congress would use if it intended to restrict judicial sentencing in cases like Setser's.
Justice Antonin Scalia: The government says that the Federal courts never had that power anyway, so that nothing is being restricted.
And they contest the cases that you have cited as demonstrating the existence of that power in the situation involved here to -- to determine whether a future -- a sentence to be imposed in the future by State courts will be concurrent or consecutive with the Federal one.
Mr. Young: Against -- that is wrong, because against a number of cases that we cite -- and I would commend them to the Court -- in which Federal judges previous to the Sentencing Reform Act anticipatorily sentenced.
The government and Mr. Setser have provided zero cases.
Justice Stephen G. Breyer: But nobody found that out in 1980, in 1980 or '79.
If you look through the Senate Report on that, they don't refer to any of those cases.
They write it as if it was just as Justice Scalia and the government said.
And honestly, my question really is the same one -- maybe I didn't put it clearly, but I think you understood it -- that the reason they want the Federal judge to be able to shape his sentence in light of other sentences that either the Federal courts or the State courts have given in the past is because you can do it so that a single behavior gets a single sentence and a different behavior is going to be sentenced consecutively, presumptively.
But you just can't do that where the State court hasn't yet acted, because -- at least you can't do it in the consecutive case, because the State court judge sees what you did and he may decide: I don't want it to be conservative.
So here I am; I'm writing my sentence to be served concurrently with the Federal court sentence.
Now, you can have every agency you want in the Federal Government.
But there's no way to get around that.
You can't force that State judge to do something different and you can't muck around with your Federal sentence in a way that will make it consecutive to a State court sentence that says it's going to run concurrent.
So there is a practical problem and that's why it's left out.
It's quite -- I mean, when I finished reading it I thought this is very logical.
Can you tell me what the answer to that is?
Mr. Young: I think the answer is that it turns much more on the order of imprisonment than the order of sentencing, because the Federal court in Mr. Setser's case, for instance, is imposing no obligation whatsoever on the State.
Justice Stephen G. Breyer: I don't deny that there are many instances where you could get it to work, particularly where you are going concurrent.
I do deny that there is -- it's all smooth sailing.
There are a lot of cases you can't get it to work.
I don't want to repeat myself again.
I've given you the example, I gave him the example, and I want to know how you would overcome that could be quite common situation where the State judge hasn't done it yet, so there's no way to require the Federal court sentence to be served consecutively, if the State judge decides it shouldn't be.
Mr. Young: --Well, let's take this very case, for instance.
Mr. Setser was sentenced in Federal court first and the Federal court said: I see that there is coming a State probation revocation.
I want this Federal sentence, which will be served last, to have no credit for whatever happens in State court.
Justice Stephen G. Breyer: He can do that.
Mr. Young: And that's all he did do.
Justice Stephen G. Breyer: Oh, I know.
I don't deny there can be some.
I say there is a concern that if he were to say in a different case, I want the gun thing which is going to State court to be consecutive, that you can't control that.
Because the State court judge could say: I want my gun sentence, State, to run concurrently with Federal.
Mr. Young: What the State judge could not do is to say: I want this State sentence, which is going to be served first, to run concurrent to the later-served Federal sentence because that would require the Federal sovereign to let someone go.
Justice Stephen G. Breyer: Oh, well, now we are getting awfully complicated.
Mr. Young: Actually--
Justice Sonia Sotomayor: Mr. Young -- it becomes easier than that.
The State court can't force the Federal Bureau of Prisons to take the prisoner back, correct?
Mr. Young: --Can't force the Federal Bureau of Prisons to do anything.
Justice Sonia Sotomayor: Exactly.
And so all it can do is sentence the defendant to whatever time it's going to sentence the defendant.
The defendant serves that time.
Then the Federal sovereign takes over and does whatever the Federal judge said.
Mr. Young: Precisely.
Justice Sonia Sotomayor: Runs it consecutively or concurrently.
Whatever the Federal judge said controls in every situation.
Mr. Young: The Bureau of Prisons can effectuate that order very easily once that's happened.
Justice Elena Kagan: Mr. Young, the government says that there are three situations in which this consecutive-concurrent problem comes up.
This statute deals with two of them.
And the government wants to -- argues that in dealing with two of them it impliedly stated a rule on the third.
What's the best argument -- what's your best argument against that?
Mr. Young: I think the best argument is that the statute plainly does not withdraw any authority.
It doesn't describe it at all.
What the statute does -- in--
Justice Elena Kagan: I think that that's not right.
It seems to me that the first sentence of this statute grants authority to the courts in these two situations.
And the second and third say what happens when that authority isn't exercised.
The question I'm struggling with -- and it's the same question I put to Mr. Jay -- is why we should think that the grant of authority over situation A and situation B is a denial of authority over situation C.
So what's your best argument?
Mr. Young: --Well, my best argument, assuming the premise that it's a grant, which I think is not the best way to read it, but if it's a grant of authority, still the correct answer is it says nothing at all about the anticipatory context.
And Congress must speak clearly if it will withdraw power from the courts.
Justice Ruth Bader Ginsburg: Well, it does to this extent.
If the two -- it's the second sentence that hasn't yet been imposed, but there is an indictment in another Federal court.
If there's two consecutive prosecutions, the first judge can't say, I want my sentence to run consecutive to the one that may or may not be imposed by another Federal judge.
That would not be possible, right?
Mr. Young: I think it would not be possible.
Justice Ruth Bader Ginsburg: So why should -- if the order is one way for successive Federal prosecutions, why should it be different when the second prosecution, instead of being Federal, is State?
Mr. Young: For several reasons, one of which is -- I think it ties into Justice Breyer's question.
If the Federal judge sentences first and imprisons first, it could not impose a consecutive or concurrent term as to the later-served State sentence either.
The first imposed Federal sentence will presumably be served first in the same Bureau of Prisons.
And so there is nothing for it yet to be consecutive or concurrent to.
A second answer is that all Federal sentences are served under the jailer of the same sovereign, the Federal, whereas in the anticipatory context we have two different systems.
And so the first sentencing federal judge is the only judge that can compel the jailer of the Federal sovereign to either credit or not to credit.
Whereas in the Federal -- Federal system, under the statute, the second judge is explicitly given the power to alter the default rule.
So in all Federal cases either a default rule or a judge will determine whether or not a credit should be given to the defendant.
Justice Ruth Bader Ginsburg: But it would be the second judge.
Mr. Young: The second Federal judge can do it but a second State judge cannot, because this statute can neither empower the State judge--
Justice Ruth Bader Ginsburg: The State judge can decide what's going to happen with the second sentence.
Mr. Young: --If the second sentence is served second.
But as in this case and many others, the second sentence is served first.
And consequently the second sentencing judge, the State judge in Mr. Setser's case, has no power to determine whether or not that sentence, which will be served first, will be consecutive or concurrent.
Now, I know there is a lot of firsts and seconds going on here, but the point is--
Justice Ruth Bader Ginsburg: But what do you do with the -- the argument about the judge who anticipates a second sentence may be wrong.
He doesn't know what that will be.
And when I asked, how does the bureau make these judgments, does it take into account the conduct of the prisoner in the State facility?
That's something that the judge who sentences first can't possibly know.
Mr. Young: --It's true.
But the same prisoner -- if the State sentence had happened 10 minutes before the Federal sentence, the Federal judge would have plenary authority to impose a consecutive sentence, even though it would be served last.
And all of that conduct that will happen in the State system would be irrelevant.
The sentence happens at the time of sentencing.
Now, there is a statutory provision that does describe exactly how the Bureau of Prisons should interact with the courts in the context of a sentence that needs to be changed and that's section 3582(c).
And in that statute the judge will remain the decider, because the Bureau of Prisons goes as a petitioner and says to the court: There are compelling and extraordinary reasons to modify this sentence.
And then the court, always in the position of the decider and using the section 3553(a) factors, will decide whether or not the Bureau of Prisons' petition should be granted.
But never in any statute is the Bureau of Prisons given the authority to use the sentencing factors under section 3553.
And in fact the sentencing factors that the government contends would allow it to make a sentencing determination under 3621, page 2a of the government's merits brief, starts off with the very preliminary requirement, and I will read from the second sentence of 3621(b)b:
"The bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the bureau. "
Which means that if this is the power that the Bureau of Prisons has to make a sentence concurrent, a State prisoner in a true hellhole would not be able to get a concurrent sentence.
The person most in need of that judicial mercy would be precluded by statute if we subject this statute to anything like the textual rigor that the government wants to subject 3584 to.
Plainly what 3621(b) does is articulate a set of principles that allows the Bureau of Prisons to decide to which prisons defendants should go, not how long they must stay there.
That is an element of punishment, which is quintessential judicial.
This Court said in Ex parte United States -- it's been quoted and cited by courts across this country for 100 years, and in fact in that case it was said to be so historically established that it hardly merited comment, and now--
Justice Stephen G. Breyer: Well, I'd be a little worried in this case at deciding whether section, what is that section, the place of imprisonment, section 3621(b) whether that does or does not give the power to the Bureau of Prisons, the power that they've assumed for many, many years.
Do we have to decide that question here?
I didn't realize I was deciding that.
I thought I was just deciding whether -- whether the judge, the sentencing judge, has the power to impose say a consecutive sentence, say my sentence will run consecutively to a State court sentence that has not yet been imposed.
I thought that was all I had to decide.
Mr. Young: --That is all you have to decide.
But in so deciding you are confronting the argument that the government makes which is: No, no; Congress has exclusively vested this sentencing function in us.
Justice Stephen G. Breyer: I don't think you have to.
I mean, maybe we do have to get to that.
Justice Antonin Scalia: Well, somebody has to make that call.
Mr. Young: Should it be the judge or the jailer?
Justice Antonin Scalia: If you say -- it's either the judge or the jailer.
There's nobody who else is going to make it.
Mr. Young: That's precisely the point.
And the argument--
Justice Antonin Scalia: So if you say the judge can't, it's going to be the Bureau of Prisons.
Mr. Young: --Precisely.
And to say that Congress has never given it to the Bureau of Prisons necessarily means that it is the judge.
Justice Stephen G. Breyer: Well, let me ask you this then: Is it -- is it -- if we want the judge to be able to say this particular prisoner will serve his Federal sentence after the State gun sentence is served or alternatively with the State gun sentence, the 3621 says that -- that the judge can, if that sentence, State sentence has not yet been imposed, we don't know what it is, we don't know if it will be imposed, we don't know what they are going to say, we don't know whether they are going to sentence him to be -- count his time, time served in the Federal judge.
I mean, I don't know what they are going to say in Federal prison.
But he can write down what he wants as far as any statement by the court that imposed the sentence, a statement concerning the purposes for which the sentence of imprisonment has been imposed.
He would say: I'm trying to get a single behavior punished once for 4 years and then that separate behavior I would like punished by 2 years more.
So you write it down and the Bureau of Prisons follows it.
And if they don't follow it, they could get reversed by a district court, abuse of discretion.
Now, will that solve the problem?
Mr. Young: It doesn't, Your Honor, because what that factor allows the Bureau of Prisons to do is to decide, based upon the judgment here, is this someone who needs to be in the super-max or is it someone that can be in a much more minimum security type prison?
None of this has anything to do with the determination of how long someone should spend in prison, 10 years, 20 years.
The government says: It's all the same; you will serve your Federal prison term.
It doesn't seem that from the perspective of an identically situated person who will spend 20 years rather than 10 years of his life in prison.
Justice Antonin Scalia: Am -- am I correct, Mr. Young, that if -- if the Federal sentencing judge is erroneous in his prediction of what the State court later sentencing will do, that his order, based upon that erroneous prediction, can be altered upon appeal by the Bureau of Prisons?
Mr. Young: That's correct.
And the only situation in which a prisoner would be harmed is if the Federal judge says, I want it to be consecutive, and then the Bureau of Prisons comes in later, 20 years later after he is done with the State term, let's say, and says: Boy, we would have made this concurrent, and here are all reasons why.
Congress has provided a means to do that, section 3582(c).
Go to the Federal court as the petitioner, not the decider.
Congress did not unilaterally give the Bureau of Prisons the power it is now claiming.
And so, for that reason--
Chief Justice John G. Roberts: I am interested in pursuing the point Justice Breyer raised.
I am troubled by the idea that someone in the Bureau of Prisons makes this determination, but I -- I wonder how that -- how that helps you.
You said it's either the jailer or the judge, and therefore, you do have to decide it.
But maybe it's either the first judge or the second judge.
Mr. Young: --In -- in--
Chief Justice John G. Roberts: Why isn't -- doesn't it make sense to say that the Federal court doesn't -- whoever is second can always tailor their sentence to what they want.
Whoever is first just has to give the sentence that he or she thinks is appropriate.
Mr. Young: --Because in the dual sovereignty context that second sentencing judge cannot compel the Federal sovereign to either reduce--
Chief Justice John G. Roberts: Doesn't compel -- no, doesn't compel the Federal sovereign.
He would say: Look, I want to give 10 years.
Mr. Young: --Right.
Chief Justice John G. Roberts: I see you have already got, you know, a -- a 15-year sentence under the Federal, but I don't want it to be 25 years; so I'm going to, in fact, just give you a 5-year sentence.
Do understand what I'm making?
Mr. Young: Yes.
Chief Justice John G. Roberts: Whoever the second judge is can figure out exactly how long he thinks the sentence should run, and give the sentence accordingly.
Mr. Young: That cannot be the case if it's a State court and the State court does not know, with respect to a later-served Federal sentence, whether or not the time will be credited.
So in other words, in your example--
Justice Anthony Kennedy: Well, but I suppose in the Chief's example a super cautious State court judge would say: I see you've got a 15-year sentence here, I don't know if it's going to be concurrent or consecutive; so I will sentence you to nothing at all.
I mean, I suppose -- which shows that there -- if -- if you follow your rule, you may be infringing on the Federal balance, but then you would say the BOP can do the same thing.
Mr. Young: --In the case in which the -- the State judge says, I want it to be zero, then we know that the State relinquishes its custody.
And whatever happens later in Federal prison, a pardon, let's say, or a reversal, that's -- that's gone and done.
The State no longer has claim on him.
They have sentenced him to zero.
If the State judge knows, however, that the Federal court has sentenced someone to 5 years and it will be conservative because it's served last to whatever the State judge imposes, the State judge now is in a position, and only in that situation, is in a position to say, okay, if I give you 2 years, you will spend 7, because I know that the Federal sentence will be consecutive.
On the other hand, if the curtain is only pulled up by the Bureau of Prisons at the end and the State judge says I want you to have 10 years, I will sentence you to 5, and the Bureau of Prisons pulls up the curtain, it's concurrent.
Then only 5 years has been sentenced.
Justice Anthony Kennedy: Well, you're saying that your position is really more consistent with the Federal balance because it allows the State to know what it's deal with?
Mr. Young: Precisely.
The only way to really respect the second sentencing State judge is to provide clarity, rather than to force that State judge to guess the sentence in the dark about what will actually happen to this defendant later on when he eventually, after State confinement, is transported to the Federal prisons.
This case is only about that situation in which the first sentence is imposed by the Federal court, but before the Federal sentence is enforced, all of the State -- that's why the Federal book ends, I describe it.
We start with the Federal sentence, and we end with the imposition, the service of the Federal service.
And in between those two things, the State sentencing and imprisonment occurs.
And, so, the State judge cannot make his sentence be concurrent or consecutive to the Federal sentence, because the Federal sentence hasn't been imposed yet.
Consequently, hasn't been served yet.
Consequently, providing that State judge with knowledge about what will happen is the only way to give that State judge the respect the State judge needs and requires to be able to implement State goals in a meaningful way.
Otherwise, it's a guess.
As you heard, the Bureau of Prisons does not follow, as a matter of course, a second sentencing State judge's preference that it be concurrent or consecutive.
That is something that the Bureau of Prisons, as responsive to the Federal courts, Federal sovereign, will decide based upon what happens in the Federal court.
Justice Samuel Alito: This is perhaps something that I should have asked the Solicitor General, but do you have any idea how often this situation comes up?
Mr. Young: I don't have specific numbers.
It's difficult to find them, but I think it's increasing.
And the reason for that is the explosion of Federal criminal law.
There is still far more State and local law enforcement officers in this country.
And the doctrine why these -- why these sentences can be imposed first and served last is because of the primary custody rule.
Because a local or State law enforcement officer will most likely arrest someone whose act will violate the laws of both sovereigns, that person will be in State custody.
We now have so many more offenses under the Federal Criminal Code than we did even back when Congress passed the Sentencing Reform Act, which goes, perhaps, to Justice Kagan's point, Congress may not really have been thinking about this at all.
Justice Sonia Sotomayor: So is there evidence one way or the other on that question, whether this situation was in any meaningful sense before the Congress?
Mr. Young: Everything is silent.
I think it was not.
As to the question about whether courts could impose concurrent consecutive sentences, what the report says, footnotes 310, 314, 318, pages 126, 127, and 129 of the sentencing report, there were some courts that thought that a prior statute stopped them from imposing only concurrent sentences in the dual sovereignty context.
Congress made very clear -- in fact, it cited by name United States v. Segal, one of the cases the government cites for this proposition as being incorrect.
We want to make it clear Congress says in a report, you can impose concurrent sentences, but all along conservative sentences were imposed anticipatorily.
And, so, this is sort of like, you know, the rule that if someone cannot have M&M's at all, being held to mean that you cannot have candy after dinner, if you had Snickers after dinner every night.
Once you remove the obstacle to having M&M's, then presumably you can have them after dinner as well.
There was no rule that you couldn't have any candy after dinner.
There was no rule that Federal courts could not sentence anticipatorily.
There was simply a statutory bar that some courts thought stopped them from imposing concurrent sentences in the dual sovereignty context.
Justice Samuel Alito: In order for you to prevail, I think we -- is it correct, we would have to determine that there was this authority inherent in the judiciary prior to the enactment of this statute?
Mr. Young: I don't think that that is necessarily true.
I think it makes it much easier.
And there can be no question that concurrent and consecutive sentencing is inherently and quintessentially judicial.
This court in Oregon v. Ice only two terms ago regarded it that way.
Justice Samuel Alito: Yes, with respect to Federal sentences, certainly that is true.
But with respect to Federal and State sentences it may be, as you suggested it, this just did not come up very often until the enactment probably of the Federal drug laws and -- and a few other statutes that created offenses where you have -- where the same conduct would constitute a violation of both Federal and State law, and so you have this situation coming up with greater frequency.
Mr. Young: That's true with greater frequency.
It did happen.
And the courts recognize this, and without any concern, sentence anticipatorily.
Justice Elena Kagan: But -- but if one had -- you know, what I take as the view of Justice Alito's question is that there was no -- no practice supporting courts sentencing in this way.
It -- it just wasn't done.
Mostly, it wasn't on anybody's radar screen that this was a significant issue.
What would we do then, if we thought Congress didn't speak to it, but we also didn't see a past practice inconsistent with what the government is suggesting?
Mr. Young: In that case, if the choice is between the judge and the jailer, I think the choice is clear.
If Congress did not specifically say that something as quintessentially judicial as deciding how long someone would spend in prison must be decided by the executive branch.
Questionable whether it could.
But unless it explicitly said
"this is how we want it to happen. "
there could be no doubt that imposing extra punishment or withdrawing punishment is so judicial in nature that even if Congress didn't think about it or specifically address the problem, the tie certainly has to go--
Justice Stephen G. Breyer: No, it isn't a tie.
I mean, there is one thing on each side.
On your side is the fact that the sentencing judge, Federal, is trying to figure out his own sentence and he does -- either he does want or he doesn't want that particular individual to serve additional time, should a State court judge later decide on some related or unrelated matter, all right?
And if that were all that was at issue, and the choice is between his saying just doing it, writing it in the sentence, or he's writing down his reasons what he'd like to have happen in letting the Bureau implement that as best they can under the section we are talking about.
That's on the one side.
And that says let the judge do it, don't give the implementation.
On the other side is to let the judge do it risks complex interference with the second to sentence, who is the State court judge.
It may be you're right, that there's some way of working it out, but it sounds complicated to me, particularly in -- in the consecutive case.
So we have federalism principles on one hand, versus the judge, versus the bureaucracy on the other.
And so it isn't so easy.
That's -- that's why I think this is not such an easy case.
Mr. Young: --Well, let me address what the anticipatory sentencing, the Federal judge, how he could possibly interfere with the State.
I don't think that he can if the State is sentencing second and imprisoning first.
Justice Stephen G. Breyer: No, no.
It's the State court judge that wants to sentence a person to an unrelated offense--
Mr. Young: Right.
Justice Stephen G. Breyer: --but he wants -- he decides he wants it to run consecutive -- concurrently with the Federal -- ongoing Federal sentence.
There is no way to stop it.
Mr. Young: Well, the question is -- that's the key point.
If it's an ongoing Federal sentence, I certainly agree.
But the point here is--
Justice Stephen G. Breyer: Well--
Mr. Young: --his Federal sentence hasn't begun.
Setser doesn't begin--
Justice Stephen G. Breyer: --All right.
Then you -- but you can't break this thing down.
Either they have the power in the Federal district court under this particular provision, with all its presumptions, to run this mechanism, the one that's in the statute, in respect to State court sentences that have not yet been imposed or they do not have that power.
We can't break it down and say sometimes you have it, and sometimes you don't.
Mr. Young: --If the State court sentence has not been imposed and will run second, a Federal court can say consecutive or concurrent, but it wouldn't have any meaning.
Just as the State court, if it had tried to bar the Federal Bureau of Prisons from keeping someone would have no meaning.
There's nothing for it to be consecutive or concurrent to, if it's the first sentence being served.
So in -- in that regard, I think the key point is, a Federal court cannot say, I'm the first judge to sentence and my sentence will immediately begin.
I want it to be consecutive to another State -- future State sentence.
It wouldn't mean anything, because the State would get that prisoner after he satisfied his Federal term, and the State can do what it wants.
Let him go, keep him longer.
That's the dual sovereignty principle.
Chief Justice John G. Roberts: He can't -- he can't -- if, for example, they are dealing with a mandatory minimum.
If the State court judge has to sentence the person to 10 years, then your explanation falls apart.
Mr. Young: If State law has a particular requirement as Federal law in some cases -- 924(c) does -- then that's the way dual sovereignty works as well.
But there is never a situation in which a State judge is worse off by having the knowledge of what the Federal court will sentence -- has sentenced and how that sentence will be imposed.
Again, if there is a problem with it, the Bureau of Prisons has a way to solve it, and it's through section 3582(c).
It's not through a unilateral determination, 20 years later perhaps, seeking the advice of a judge.
Maybe the advice of the judge is provided at the time of sentencing.
And if it can do that, there's no reason why it couldn't be an order that can be enforced rather than a piece of advice that is given at the time of sentencing.
Judges decide how much punishment someone should receive.
In Federal court, Federal judges decide how long someone should spend in the Federal Bureau of Prisons.
State courts can't do it, but they can adjust sentences within the strictures of State law to account for what they know is coming if Federal courts are able to provide that advice.
If they cannot decide that issue and advise the State court judge of what will happen, then there are situations that will occur when the Bureau of Prisons administers these sentences -- and there is no question about that either.
But the point is, there is never a situation in which a judge, able and willing -- able to follow the section 3553(a) factors and willing to impose that sentence, is doing something that will be worse for the defendant or worse for the States than if he does not do it.
You contrast the two situations that two equally situated people would be in.
On the one hand, sentencing in open court by an Article III judge subject to the 3553(a) factors with direct review in the courts for reasonableness.
On the other hand, sentencing by an administrator without any of those salutary procedural protections, without direct review in the courts, and based on factors that determine to which prison someone should go, not how long they must stay there for purposes of punishment.
And for that reason alone, if for none other, the Court should affirm the judgment because it allows district judges, subject to their wise exercise and sound exercise of discretion, to make these sentences to clarify things upfront for everyone: the defendant, the State courts and the Bureau of Prisons.
20 years, this country has had half of the circuits following this practice, and there is not one case cited on the other side showing that any mal-administration of justice has resulted, any lack of clarity, any problems with respect to how these sentences are enforced.
And that's because it does the opposite.
Allowing judges who are able, in cases like Setser's, no matter how much time the State gives for probation revocation, no Federal credit should be given to it.
He knows enough.
He knows everything he needs to know to make that sentence.
He made it.
It's effectuated by the Bureau of Prisons.
The government has not said once that it cannot enforce that sentence.
And to the extent that Setser wishes to challenge how the Bureau of Prisons credits the State order, the mechanism to do that is to exhaust his administration -- administrative remedies in the BOP, and then seek judicial review to determine whether that calculation was done rationally and fairly.
This appeal is not the place for that.
This appeal is to determine whether district courts never have such authority.
I thank the Court.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Hawkins, you have 2 minutes remaining.
REBUTTAL ARGUMENT OF JASON D. HAWKINS ON BEHALF OF THE PETITIONER
Mr. Hawkins: Thank you.
Justice Breyer, if I can go back to your hypothetical, I think that the way that the Federal judge can get this accomplished is simply by waiting.
After -- after the conviction, Your Honor, they can send the State prisoner back down to State court, allow for that State sentence to be imposed, and then he can come back into Federal custody.
And in that situation, that is when the Court has the authority to issue this binding order.
That is the -- because it has all of the information.
And -- and I would also--
Justice Sonia Sotomayor: That's preferable, to clog the judicial system with untold number of Federal convictions that have not been reduced to judgment?
That's preferable to giving judges, or recognizing their power to state their views up front?
Mr. Hawkins: --Your Honor, the judge can state the views -- her views up front in a recommendation.
It cannot do so if it doesn't know all the facts.
Justice Sonia Sotomayor: Could you tell me what facts would affect the sentence here?
The judge here very clearly believed that some of the State charges overlapped and some didn't.
And so it ran some consecutive to one set of State charges and concurrent to the other.
What are the facts with respect to the defendant that the Federal court needed to know?
Mr. Hawkins: --Your Honor, I think in looking at 3584, it may well seem reasonable for the Federal court to have done this, but the -- the fact is, is that Congress drew a bright line, and it has to be subject to this undischarged term of imprisonment.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: And Justice Scalia has our opinion in case 10-7387, Setser versus United States.
Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
When officers of the Lubbock Texas Police Department arrested Monroe Setser, the petitioner here, on a drug offense, he was already serving a five-year term of probation imposed by a Texas court for a previous drug offense.
He was indicted in state court on the new drug charges and the State also moved to revoke his probationary term.
About the same time, Setser pleaded guilty to federal drug charges arising out of the same acts.
The Federal District Court sentenced him first.
It imposed a 151-month sentence and ordered that it should run consecutively to any state sentence imposed for the probation violation which had nothing to do with the acts that the federal sentence was being imposed for, but would be served concurrently with any state sentence imposed on a new drug charge which did overlap the -- the federal one.
While Setser's federal appeal was pending, the state court sentenced him to five years for the probation violation and 10 years for the new drug charge but ordered that both of those sentences would be served concurrently.
Before the Fifth Circuit, Setser made the same two arguments that he made -- makes before us here.
First, he argues that the District Court had no authority to order that his federal sentence should run consecutively to a state sentence that had not yet been imposed.
The Sentencing Reform Act, he claimed, deprived District Courts of that authority.
Second, he claimed that his sentence was unreasonable and therefore unlawful because you cannot serve a -- its really quite impossible, you cannot serve a federal sentence both consecutively to one state sentence and concurrently to another state sentence when both of those sentences are being served concurrently.
Just think about that.
The Fifth Circuit rejected both arguments and affirmed the judgment of the District Court.
Setser petitioned for certiorari and the United States supported his petition, agreeing with his argument that the District Court had no such anticipatory sentencing authority.
Since both parties rejected the Fifth Circuit's view, we appointed an amicus curiae to defend the judgment below and in an opinion filed today with the clerk, we affirm the judgment of the Fifth Circuit.
It is particularly important in this case to be clear about what's at issue.
Setser acknowledges that his federal sentence may run either consecutively to or concurrently with his state sentence.
That is, he has no legal right to get credit for his time served in state prison and he acknowledges that someone in the federal government must decide whether he will get that credit, so the question here is who will decide.
The Fifth Circuit held that the judge may decide.
Judges have traditionally had broad discretion in selecting whether the sentences they impose will run concurrently or consecutively or -- and that -- not only concurrently or consecutively the sentences imposed in federal court, but also concurrently or consecutively the sentences that have already been imposed in state proceedings.
And of the lower courts who addressed this issue before the passing of the Sentencing Reform Act, most held that the Court’s discretion included the authority to -- in order that a federal sentence should -- should be serve consecutively to an anticipated state sentence.
Setser and the Government assert, however, that the Sentencing Reform Act denies District Courts this authority and that the decision belongs instead to the Bureau of Prisons in the executive branch which is what the government argues.
We side with the judges.
The portion of the Sentencing Reform Act on which Setser relies, Section 3584 of Title 18 does not take away judge's inherent sentencing discretion.
It says, if multiple terms of imprisonment are imposed on a defendant at the same time, that's not what happened here, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, again that's not this case, the terms may run concurrently or consecutively.
Setser and the Government invoke the Latin maxim as expressio unius est exclusio alterius to express one thing is to exclude the other which is Latin for what we call in English, a negative inference.
So they say, because the Act contemplates judicial discretion in case A and case B, judges do not have discretion in case C, but the negative inference is just that, an inference and in this case, it is in our view overcome by a much stronger inference based on the same Latin maxim.
Setser and the Government say that the Bureau of Prisons derives the authority to determine whether his federal sentence will be served consecutively or concurrently, derives that authority from another portion of the Sentencing Reform Act, Section 3621(b), but that provision says absolutely nothing about sentencing authority.
It reads, the Bureau of Prisons shall designate the place of the prisoner's imprisonment.
The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise.
It then goes -- goes on to list the factors the Bureau must consider in making its -- its designation, including “the resources of the facility contemplated”.
If Congress meant to give the Bureau the same sentencing authority in case C, that it acknowledge judges to have in cases A and B, you would expect Section 3621(b) to say something, anything about consecutive or concurrent sentences, but it doesn't, so as we say, expressio unius est exclusio alterius.
It is true [Laughter] it is true that the Bureau of Prisons making this determination after the prisoner has already served his state sentence would have more information before it that would be useful in making this consecutive versus concurrent determination, but in this case, the interest in fully informed decision making is overcome by the text of the Act, by our tradition of judicial sentencing and by the countervailing interest that sentencing should not be left to the employees of the same Department of Justice that conducts the prosecution.
Finally, we also reject the independent argument that even if the District Court had authority to make its sentence concurrent or consecutive to a yet to be imposed state sentence, the sentenced imposed here was unreasonable and hence an abuse of discretion because it cannot possibly be consecutive to one state sentence and concurrent with the other.
That difficulty, however, arises not from the federal court sentence but from the later event of the state court's decision and the fact that a sentence turns out to be impracticable because of later events does not render it unreasonable when imposed.
If for example, the Court imposes a sentence of supervised release, conditioned upon gainful employment, the sentence is not retroactively rendered unreasonable when the defendant incurs a disability that makes gainful employment impossible.
Deciding how to sort things out in such a situation, and the situation here is really a fluke, maybe difficult, but it does not show that the District Court sentence was unlawful at the time it was imposed.
Setser identifies no flaw in the District Court's decision making process nor anything available at the time of sentencing that the Court failed to consider.
The judgment of the Court of Appeals is affirmed.
Justice Breyer has filed a dissenting opinion in which Justices Kennedy and Ginsburg join.