Setser v. United States

PETITIONER:Monroe Ace Setser
RESPONDENT:United States
LOCATION: Courtroom of Hon. Samuel R. Cummings

DOCKET NO.: 10-7387
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 566 US (2012)
GRANTED: Jun 13, 2011
ARGUED: Nov 30, 2011
DECIDED: Mar 28, 2012

Evan A. Young – for amicus curiae in support of the judgment below (appointed by the Court)
Jason D. Hawkins – for the petitioner
William M. Jay – Assistant to the Solicitor General, Department of Justice, for the respondent in support of the petitioner

Facts of the case

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?

Media for Setser v. United States

Audio Transcription for Oral Argument – November 30, 2011 in Setser v. United States

Audio Transcription for Opinion Announcement – March 28, 2012 in Setser v. United States

John G. Roberts, Jr.:

And Justice Scalia has our opinion in case 10-7387, Setser versus United States.

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.

Antonin Scalia:

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.