Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Supreme Court Rules Federal Judge May Make Sentence Consecutive to Future State Sentence

On March 28, 2012, the U.S. Supreme Court held that a federal judge may impose a sentence that is consecutive to an anticipated state sentence.

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

Setser pleaded guilty to the federal charge and was sentenced to 151 months imprisonment. 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 drug charge. Setser appealed. While his appeal was pending, the state sentenced him to 5 years imprisonment for the probation revocation and ten years for the new drug charge with both sentences to run concurrent.

The Fifth Circuit court of appeals affirmed the sentence, holding that the judge had authority to make a sentence consecutive to an anticipated state sentence and that the sentence was reasonable, if "partially foiled" by the state court's decision. Setser filed a petition for a writ of certiorari in the U.S. Supreme Court which was granted.

The Supreme Court held that the traditional broad discretion judges enjoy in pronouncing sentences includes the ability to make a sentence consecutive to an anticipated state sentence. 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 decided that the federal 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." Therefore, the judgment of the court of appeals was affirmed. See: Setser v. United States, U.S.S.Ct., No. 10-7387.


As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Setser v. United States