The Lawletter Vol 36 No 12
The Supreme Court resolved a sentencing issue on which the lower courts had, to a degree, been split when it recently held that a district court has the discretion and authority under 18 U.S.C. § 3584(a) to select whether the sentence it imposes will run concurrently with or consecutively to an anticipated state sentence that has not yet been imposed. Setser v. United States, 132 S. Ct. 1463 (2011). Although § 3584 does not expressly cover such a situation, the Setser Court applied rules of statutory construction to support its interpretation of the statute. The Court recognized that there may be times that the federal sentence will conflict with the state sentence, where, say, the federal sentence is ordered to run concurrently with the state sentence and the state sentence is ordered to run consecutively to the federal sentence. In such cases, where the prisoner serves the state sentence first, the Court observed that 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 the [prisoner's] confinement." Id. at 1473. As the Court explained, the prisoner
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.
Id.The Court, however, expressed no view on whether those proceedings would be successful. The Court noted that the Bureau of Prisons has the authority to designate the state prison as the place of service of the prisoner's federal sentence and that it 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. Id. at 1467-68 & n.1.