(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SETSER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 10–7387. Argued November 30, 2011—Decided March 28, 2012
When petitioner Setser was indicted in a Texas court on drug charges,
the State also moved to revoke the probation term that he was then
serving for another drug offense. At about the same time, Setser
pleaded guilty to federal drug charges. The Federal District Court
imposed a 151-month sentence to run consecutively to any state sentence imposed for the probation violation, but concurrently with any
state sentence imposed on the new drug charge. While Setser’s federal appeal was pending, the state court sentenced him to 5 years for
the probation violation and 10 years for the drug charge, but ordered
the sentences to be served concurrently. The Fifth Circuit affirmed
the federal sentence, holding that the District Court had authority to
order a sentence consecutive to an anticipated state sentence, and
that Setser’s sentence was reasonable, even if the state court’s decision made it unclear exactly how to administer it.
Held:
1. The District Court had discretion to order that Setser’s federal
sentence run consecutively to his anticipated state sentence for the
probation violation. Pp. 2–12.
(a) Judges have traditionally had broad discretion in selecting
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. The statutory text and structure do not foreclose a district court’s exercise of this discretion with
respect to anticipated state sentences. The Sentencing Reform Act of
1984 addresses the concurrent-vs.-consecutive decision, but not the
situation here, since the District Court did not impose “multiple
terms of imprisonment . . . at the same time,” and Setser was not “al-
2 SETSER v. UNITED STATES
Syllabus
ready subject to” the state sentences at issue, 18 U. S. C. §3584(a).
This does not mean, as Setser and the Government claim, that the
District Court lacked authority to act as it did and that the Bureau of
Prisons is to make the concurrent-vs.-consecutive decision after the
federal sentence has been imposed. Section 3621(b), from which the
Bureau claims to derive this authority, says nothing about concurrent or consecutive sentences. And it is more natural to read
§3584(a) as leaving room for the exercise of judicial discretion in situations not covered than it is to read §3621(b) as giving the Bureau
what amounts to sentencing authority. Setser’s arguments to the
contrary are unpersuasive. Pp. 2–8.
(b) None of the other objections raised by Setser and the Government requires a different result. Pp. 8–12.
2. The state court’s subsequent decision to make the state sentences run concurrently does not establish that the Federal District Court
imposed an unreasonable sentence. The difficulty here arises not
from the federal-court sentence—which is to run concurrently with
one state sentence and consecutively with another—but from the
state court’s decision. Deciding which of the District Court’s dispositions should prevail under these circumstances is a problem, but it
does not show the District Court’s sentence to be unlawful. The reasonableness standard for reviewing federal sentences asks whether
the district court abused its discretion, see Gall v. United States, 552
U. S. 38, 46, but Setser identifies no flaw in the District Court’s decisionmaking process, nor anything available at the time of sentencing
that the court failed to consider. Where late-onset facts make it difficult, or even impossible, to implement the sentence, the Bureau of
Prisons may determine, in the first instance, how long the District
Court’s sentence authorizes it to continue Setser’s confinement, subject to the potential for judicial review. Pp. 12–14.
607 F. 3d 128, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. BREYER,
J., filed a dissenting opinion, in which KENNEDY and GINSBURG, JJ.,
joined.
_________________
_________________
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
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
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 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 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,
2 SETSER v. UNITED STATES
Opinion of the Court
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,
Cite as: 566 U. S. ____ (2012) 3
Opinion of the Court
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 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
4 SETSER v. UNITED STATES
Opinion of the Court
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, 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.
——————
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.
Cite as: 566 U. S. ____ (2012) 5
Opinion of the Court
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
——————
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, Anderson 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 purposes 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 98 Stat.
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).
6 SETSER v. UNITED STATES
Opinion of the Court
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
——————
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. Cite as: 566 U. S. ____ (2012) 7
Opinion of the Court
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 preexisting authority. And that is especially true when there
is an obvious reason for selecting the instances of preexisting 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 concur-
8 SETSER v. UNITED STATES
Opinion of the Court
rent 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 Cite as: 566 U. S. ____ (2012) 9
Opinion of the Court
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 concurrentvs.-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
10 SETSER v. UNITED STATES
Opinion of the Court
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
——————
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 anticipated 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.
Cite as: 566 U. S. ____ (2012) 11
Opinion of the Court
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 con-
——————
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-beimposed 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. Yetto-be-imposed sentences are not within the system at all, and we are
simply left with the question whether judges or the Bureau of Prisons
is 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.
12 SETSER v. UNITED STATES
Opinion of the Court
sidering 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.
——————
7We 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.
Cite as: 566 U. S. ____ (2012) 13
Opinion of the Court
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
14 SETSER v. UNITED STATES
Opinion of the Court
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. Opinion of the Court
Cite as: 566 U. S. ____ (2012) 15
Appendix A to opinion of the Court
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.”
Opinion of the Court
16 SETSER v. UNITED STATES
Appendix B to opinion of the Court
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 Opinion of the Court
Cite as: 566 U. S. ____ (2012) 17
Appendix B to opinion of the Court
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.” _________________
_________________
Cite as: 566 U. S. ____ (2012) 1
BREYER, J., dissenting
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 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 Guidelinesrelated 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
2 SETSER v. UNITED STATES
BREYER, J., dissenting
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 sentences. 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 Cite as: 566 U. S. ____ (2012) 3
BREYER, J., dissenting
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
4 SETSER v. UNITED STATES
BREYER, J., dissenting
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 single 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 statu-
Cite as: 566 U. S. ____ (2012) 5
BREYER, J., dissenting
tory 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 consecutively 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 sentencingproceeding-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
6 SETSER v. UNITED STATES
BREYER, J., dissenting
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 Cite as: 566 U. S. ____ (2012) 7
BREYER, J., dissenting
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 (preGuideline 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 impo-
8 SETSER v. UNITED STATES
BREYER, J., dissenting
sition 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 hererelevant 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 Cite as: 566 U. S. ____ (2012) 9
BREYER, J., dissenting
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 legislative history in no way indicates that the exception applies 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
10 SETSER v. UNITED STATES
BREYER, J., dissenting
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.
Cite as: 566 U. S. ____ (2012) 11
BREYER, J., dissenting
* * *
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.
