While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.