E.D. California Notes Split Re Whether a Sentencing Court has Authority to Impose a Consecutive Sentence to a Future Sentence Not Yet Imposed

Per King v. Smith, Slip Copy, 2007 WL 2253601 (E.D.Cal . Aug 03, 2007) (NO. CVF 051053 OWWDLBHC):

Here, the BOP considered Petitioner's request to have his federal sentence be deemed concurrent nunc pro tunc with his state sentence. Petition, Exhibit A. BOP staff verified that the State of Alaska had indeed given Petitioner custody credit for the entire time between the date of his arrest on February 18, 2000, and his release to federal custody on February 17, 2002. Attachment 2, ¶ 4. Although the federal district court could not have imposed the federal sentence to be consecutive with his state sentence that had not yet been imposed, the State of Alaska did not impose the state sentence to run concurrent with the federal sentence. See United States v. Clayton, 927 F.3d 491, 493 (9th Cir.1991) ("[A]s a matter of statutory construction, we interpret the 'already subject to' provision of section 3582(a) as only granting federal courts the power to sentence consecutive to a previously imposed term of imprisonment.") FN2

FN2. There currently exists a split among the circuit courts as to whether the sentencing court has the authority to impose a consecutive sentence to a future sentence, not yet imposed. Compare Romandine v. United States, 206 F.3d 731 (7th Cir.2000) (district court does not have such authority); United States v. Quintero, 157 F.3d 1038 (6th Cir.1998) (same); United States v. Smith, 472 F.3d 222 (4th Cir.2006) (same), with United States v. Hernandez, 234 F.3d 252 (5th Cir.2000) (district courts do have such authority); United States v. Williams, 46 F.3d 57 (10th Cir.1995) (same); Salley v. United States, 786 F.2d 546 (2d Cir.1986) (same); United States v. Ballard, 6 F.3d 1502 (11th Cir.1993) (same).