On March 28, 2012, the U.S. Supreme Court held that a federal district court may impose a federal prison term that is consecutive to an anticipated future state court sentence. In February 2014, the Third Circuit ruled that a district court’s ability to impose such a sentence only applies at the time when the federal sentence is imposed.

Monroe Ace Setser was on probation for a drug charge when he was arrested in Texas on a new charge of possession with intent to deliver a controlled substance. After Setser was indicted on the new drug charge, the state moved to revoke his probation. A federal grand jury then indicted him on the federal offense of possession with intent to distribute 50 grams or more of methamphetamine, based on the same incident that had resulted in the new state drug charge.

This did not constitute double jeopardy based on the legal fiction that it is permissible to pursue state and federal charges for the same criminal conduct under the “dual sovereignty” doctrine.

Setser pleaded guilty to the federal charge and was sentenced to 151 months in prison. The federal judge made Setser’s sentence consecutive to the sentence he would receive in the probation revocation proceedings, but concurrent with the sentence he would receive for the new state drug charge.

Setser appealed. While his appeal was pending, the state sentenced him to five years in prison for the probation revocation and 10 years for the new drug charge, with both sentences to run concurrent. This made it impossible to implement the federal sentence as ordered by the district court.

Regardless, the Fifth Circuit Court of Appeals affirmed his federal sentence, holding that the district court had the authority to run a sentence consecutive to a future state sentence that had not yet been imposed, and that the sentence was reasonable even if “partially foiled” by the state court’s decision to make the state sentences concurrent. Setser filed a petition for writ of certiorari in the U.S. Supreme Court, which was granted.

The Supreme Court held that the traditional broad discretion that federal judges enjoy when imposing sentences includes the ability to make a sentence consecutive to an anticipated state sentence, and that such a determination is not left for the Bureau of Prisons to decide. However, in this case the sentence pronounced by the federal judge could not be carried out because the state court had made the probation revocation and new drug charge sentences concurrent.

In such a case, the Supreme Court held that the Bureau of Prisons “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.”

The judgment of the Fifth Circuit upholding Setser’s federal prison sentence was therefore affirmed. See: Setser v. United States, 132 S.Ct. 1463 (2012).

On February 12, 2014, the Third Circuit Court of Appeals applied the ruling in Setser to find that while a district court can decide whether to run a federal sentence concurrent or consecutive to a future state sentence that has not yet been imposed, it can do so only at the time of sentencing on the federal charges.

Defendant Michael Sharpe was sentenced to 144 months in federal prison in 2004; he expired his sentence in May 2013 and was remanded to Pennsylvania officials for a parole violation. He then filed a motion in the district court seeking reconsideration of his federal sentence, requesting that the court run it concurrent with his subsequently-imposed Pennsylvania state sentence.

The district court held it did not have jurisdiction to modify Sharpe’s sentence, which was affirmed on appeal. The Third Circuit found that Setser “holds merely that district courts have such authority” at the time the federal sentence is imposed when deciding whether federal sentences are to be made concurrent or consecutive to future state sentences.

The appellate court further noted that “even if the District Court had been authorized to modify Sharpe’s federal sentence, that is not really what he was asking the court to do. Sharpe’s federal sentence has expired and he is now serving a state-court sentence. Thus, Sharpe is really seeking to modify his state sentence on the ground that it should (or should have) run concurrently with his federal sentence. That is a matter for Pennsylvania authorities, not the federal courts.” See: United States v. Sharpe, 2014 U.S. App. LEXIS 2653 (3d Cir. 2014) (unpublished).

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