SCOTUS to Address Circuit Split on Consecutive Sentences

The Supreme Court continues to take new criminal cases at a rapid clip.  In Setser v. United States (No. 10-7387), the Court will have an opportunity to resolve a longstanding circuit split on whether a district judge may order a federal sentence to run consecutively to a state sentence that has not yet been imposed.  While on probation for a state offense, Setser pled guilty to a federal drug trafficking crime.  Anticipating that Setser’s state probation would be revoked and a new prison term imposed, the district judge ordered that Setser’s federal sentence would have to run consecutively to whatever Setser got in state court.  The Fifth Circuit affirmed the district judge’s authority to order such a sentence.  607 F.3d 128 (5th Cir. 2010).  Now, the Supreme Court will decide between the position of the Fifth Circuit (joined by the Eighth, Tenth, and Eleventh Circuits) and the contrary position of the Second, Fourth, Sixth, Seventh, and Ninth Circuits.