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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–7387
_________________
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 de- fendant 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
ar- rested 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 pro-
ceedings. 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, be- cause §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 sen- tence 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 impris- onment for the federal
sentence—effectively making the two sentences
concurrent—or decline to do so—effec- tively 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, 168–169 (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 au- thority
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)
specific- ally 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, 538–539 (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
pris- oner,” §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, 261–262 (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.”
B
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.”