Next week, the Supreme Court will hear oral argument in Setser v. United States.  The cases addresses whether a federal court has authority to order a federal sentence to run consecutively with a yet-to-be-imposed state sentence.

In 2007, petitioner Monroe Setser was sentenced in federal court for possession of methamphetamine with intent to distribute.  Setser’s crime represented both a federal and state offense, and as such, Setser could be expected to do time in both state and federal prison.  Yet at the time of his federal sentencing, Setser had yet to be convicted of the state charge.  In anticipation of such a conviction, the district court directed that Setser’s federal sentence would run consecutively to any state sentence Setser might eventually receive.

At issue in the case is the interpretation of 18 U.S.C. § 3584(a), which provides:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. . . .  Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the state mandates that the terms are to run consecutively.  Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

Both Setser – and the United States, which is not opposing Setser’s appeal – argue that § 3584(a) does not give district courts authority to order a federal term to run consecutively to a hypothetical state imprisonment.  Section 3584(a) applies in two situations and two situations only: (1) when the federal court imposes multiple terms of imprisonment “at the same time”; and (2) when the federal court sentences a defendant who is “already subject to an undischarged term of imprisonment.”

To be sure, language in the statute refers to “[m]ultiple terms of imprisonment imposed at different times.”  This does not provide license, however, to structure the service of sentences yet to be imposed.  To do so would read § 3584(a)’s limitation out of the statute.  As the government writes: “If district courts could order consecutive or concurrent service whenever ‘multiple terms of imprisonment’ are imposed or anticipated,’ Congress would have no reason to specify that the district court’s authority extends to defendants with ‘undischarged’ sentences.”

Evan Young, arguing against the petitioner by invitation of the Court, contends that § 3584(a) should be construed as providing default rules for some, but not all, sentencing situations.  According to Young, “[d]etermining the length of a criminal sentence [has always been] the province of the judge, not the jailer.”  The common law has long afforded judges discretion in sentencing, which Congress would not have withdrawn without a clearer indication.  The bulk of the brief then goes on to repudiate the petitioner’s and amici’s arguments.

Setser is an interesting case – both a technical analysis of statutory text and a philosophical debate about the relationship between the executive and judicial branches in the context of sentencing.  Throughout their briefs, both sides articulate a vision of sentencing that depicts the process as a necessarily reasoned inquiry.  After all, a proper sentence serves to “provide just punishment,” “afford adequate deterrence,” and “protect the public from the future crimes of the defendant.”  Yet when a judge must make assumptions about what kind of sentence a colleague will impose at a later proceeding, is she really able to fashion a term of years that is just?  Is not the second judge, possessing all the relevant facts, in a better position to structure a suitable sentence?  Though there is certainly more to Setser than the answer to these two questions, it is important not to lose sight of the underlying policy considerations in an appeal otherwise resting on a meticulous parsing of statutory text.