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1st Cir. Rejects Consecutive, Anticipated Federal Sentences

By Casey C. Sullivan, Esq. on February 23, 2016 | Last updated on March 21, 2019

Answering a question it acknowledged was left open by the Supreme Court's 2012 Setser v. United States decisions, the First Circuit ruled last Friday that federal sentences may not be ordered to be consecutive to another anticipated, but not yet imposed, federal sentence.

The case involves the sentencing of Heriberto Almonte-Reyes, who was convicted of conspiracy to import heroin in Puerto Rico while also facing charges for money laundering in Georgia. The district court of Puerto Rico sentenced Almonte-Reyes to 120 months in prison, to be served consecutively to "any term to be imposed" in his Georgia case.

El Gordo Gets a Sentence to Match His Name

Almonte-Reyes was one of 19 people sentenced for their involvement in a large drug trafficking and money-laundering scheme that stretched from Australia to Central America, the Caribbean, New York, and even England. A former Navy Captain in the Dominican Republic, Almonte-Reyes was known as "El Gordo," and faced prosecution in district courts in both Puerto Rico and Georgia.

In 2012, after pleading guilty to drug trafficking charges in Puerto Rico, the government recommended that Almonte-Reyes be sentenced to 102 to 120 months in prison, to run concurrently with his anticipated sentence in Georgia. The Puerto Rican district court, however, ordered that his sentence should be served consecutively to whatever sentence the district court in Georgia handed down.

State Sentences Are Fine, Federal Are Not

Almonte-Reyes later challenged the consecutive nature of his sentence, arguing that it violated federal sentencing laws. Under 18 U.S.C. § 3584(a), multiple terms run concurrently unless ordered to run consecutively. That federal sentencing law does not differentiate between state and federal sentences, nor does it mention anticipated sentences.

In Setser v. United States, the Supreme Court ruled that federal courts impose sentences consecutive to anticipated state sentences. It based that ruling on the sentencing discretion granted judges in common law.

But, the Court also noted that such an outcome could be different if the anticipated sentence is from federal, not state, court. In a footnote to the opinion, written by Justice Scalia, the Court states:

If a district court can enter a consecutive sentencing order in advance of an anticipated state sentence, [Setser] asks, what is to stop it from issuing such an order in advance of an anticipated federal sentence? It could be argued that § 3584(a) impliedly prohibits such an order because it gives that decision to the federal court that sentences the defendant when the other sentence is "already" imposed - and does not speak (of course) to what a state court must do when a sentence has already been imposed. It suffices to say, however, that this question is not before us.

Here, the First Circuit embraced that distinction. They join the Fourth and Ninth Circuits in finding that federal sentences cannot be imposed consecutive to anticipated federal sentences.

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