[00:00:00] Speaker 01:
Thank you.

[00:00:00] Speaker 01:
May I proceed?

[00:00:01] Speaker 01:
Yes.

[00:00:03] Speaker 01:
May it please the Honourable Court, Richard Schoenfeld, appearing on behalf of the appellant, Saloom Kayat Kayerath.

[00:00:10] Speaker 01:
With the court's permission, I'd like to reserve two minutes for rebuttal.

[00:00:14] Speaker 01:
The issue in this appeal is quite narrow.

[00:00:17] Speaker 01:
The question presented is, can the district court order a sentence to run concurrent to a yet to be pronounced state sentence when the defendant is in federal custody?

[00:00:28] Speaker 01:
and I respectfully submit that the answer is no.

[00:00:32] Speaker 01:
I'll give a brief overview of the procedural history because it's important when we get to the issue presented.

[00:00:37] Speaker 01:
Mr. Kaerath was arrested on the federal warrants for supervised release violations.

[00:00:42] Speaker 01:
He had two separate cases that were consolidated initially for sentencing purposes.

[00:00:47] Speaker 01:
So he was arrested on the two warrants on May 26, 2023.

[00:00:52] Speaker 01:
At the point in time when he was arrested on the federal warrants, he had no state court case pending.

[00:00:58] Speaker 01:
He was therefore in the exclusive custody of the federal court system.

[00:01:03] Speaker 01:
He was thereafter indicted in the state court on June 2nd, 2023, but remained in the exclusive custodial, exclusive custody of the federal court system.

[00:01:16] Speaker 01:
He entered a guilty plea in state court on August 15th, 2024, and it was a conditional plea.

[00:01:23] Speaker 01:
And there were three conditions to that resolution that are relevant to this appeal.

[00:01:27] Speaker 01:
One is that the sentence that would be imposed in state court would run concurrent to the sentence that would be imposed in federal court.

[00:01:35] Speaker 01:
Two is that he would receive credit for time served from March 23rd, 2023.

[00:01:41] Speaker 01:
And three is that the state court sentencing would be continued until after the federal court sentencing on the supervised release violations so that the concurrent component of the state sentence could be implemented.

[00:01:57] Speaker 04:
Why isn't that fully consistent with Setzer?

[00:01:59] Speaker 04:
Because Setzer suggests that if the federal court goes first, it lays its cards on the table.

[00:02:05] Speaker 04:
You know, 84-month total sentence.

[00:02:08] Speaker 04:
I would like it to be consecutive to the state sentence.

[00:02:12] Speaker 04:
And then the state court looks at that and says, nah, we'll make it concurrent.

[00:02:17] Speaker 04:
And the reality is,

[00:02:19] Speaker 04:
as a practical matter under Setzer, whoever gets them second gets to decide.

[00:02:23] Speaker 04:
And it looks like here that's going to be the state system.

[00:02:25] Speaker 04:
So maybe they'll decide, we're just going to follow our concurrent and that's it.

[00:02:31] Speaker 04:
But it doesn't make anything about this sentence illegal, does it?

[00:02:34] Speaker 01:
Respectfully, it does.

[00:02:35] Speaker 01:
And here's the distinction.

[00:02:37] Speaker 01:
All of the cases that talk about a federal court sentencing

[00:02:41] Speaker 01:
a defendant to a consecutive term of imprisonment on a yet-to-be-pronounced state sentence involves circumstances where the defendant is in state custody.

[00:02:50] Speaker 04:
And it makes sense, because... But why does that make a difference under the logic of Setzer?

[00:02:55] Speaker 04:
That's what I don't see.

[00:02:56] Speaker 01:
So if we start the analysis by looking at 18 USC 3584, which is where the court started in the Montes Ruiz case, which is a Ninth Circuit decision, what happens is we look at when the court can sentence on multiple sentences of imprisonment to consecutive time.

[00:03:13] Speaker 01:
And when we look at the clear language of that statute, it provides that if multiple terms of imprisonment are imposed on a defendant at the same time,

[00:03:21] Speaker 01:
or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, then the court can choose consecutive or concurrent.

[00:03:31] Speaker 04:
Neither of those are present here.

[00:03:32] Speaker 01:
Exactly.

[00:03:33] Speaker 01:
And so when we look at the Montez-Ruiz case, what the court did there is stated that, okay, well, this statute doesn't apply.

[00:03:42] Speaker 01:
And we then look to Taylor and Reynolds, which were two nine circuit cases that came out before then,

[00:03:48] Speaker 01:
and they said in that case it specified that the court cannot order a sentence to be served concurrently or consecutively with a sentence including a state sentence that has not yet been imposed.

[00:03:59] Speaker 04:
And then the next sentence in the decision is the United States Supreme Court abrogated the Taylor Reynolds rule as it applies to an anticipated but not yet imposed state sentence.

[00:04:08] Speaker 01:
Precisely.

[00:04:09] Speaker 04:
Which is our case.

[00:04:09] Speaker 01:
Precisely.

[00:04:10] Speaker 01:
But then we go to the Stetzer case, and we look at what the Stetzer court actually did.

[00:04:14] Speaker 01:
So you're starting with the statute that says, you cannot do this.

[00:04:17] Speaker 01:
Then we look at the Ninth Circuit.

[00:04:19] Speaker 02:
Hold on.

[00:04:20] Speaker 02:
The statute doesn't say you can't do it.

[00:04:23] Speaker 02:
It just doesn't provide that you can.

[00:04:25] Speaker 02:
Correct.

[00:04:26] Speaker 02:
That seems to be, I mean, that's kind of an important point.

[00:04:29] Speaker 02:
I agree.

[00:04:30] Speaker 04:
But then Stetzer says that if

[00:04:33] Speaker 04:
The restrictions, and that's how it sets or interprets 3584, if those restrictions don't apply, then the traditional discretion that it held was afforded to judges to decide this issue is what controls.

[00:04:50] Speaker 01:
except that in Stetzer, and I'm looking at page 237, it expressly states, we find nothing in the Sentencing Reform Act or in any other provision of the law to show that Congress foreclosed the exercise of district court sentencing discretion in these circumstances.

[00:05:07] Speaker 01:
So if we go back to the initial starting point of the analysis, which is the statute that provides for when the court has the discretion to sentence somebody consecutive versus concurrent,

[00:05:17] Speaker 01:
And then we look at the carve-out that was provided by the United States Supreme Court in Stetzer.

[00:05:22] Speaker 01:
The carve-out does not apply to these circumstances, which is, I'm taking that language directly from the Stetzer decision, which then brings us back to the initial step of the analysis, which is you cannot prescribe a sentence to run consecutive or concurrent to a yet-to-be-pronounced state sentence, because these aren't the Stetzer circumstances.

[00:05:42] Speaker 01:
And that's what the Ninth Circuit held initially in Montez Ruiz,

[00:05:46] Speaker 01:
and then acknowledged the carve-out from Stetzer, which applies, as stated in the U.S.

[00:05:51] Speaker 01:
Supreme Court decision, to those circumstances.

[00:05:53] Speaker 01:
Those circumstances don't exist in this case because Mr. K.R.Rath was in federal custody.

[00:05:58] Speaker 01:
He was sentenced in federal court first, and the court pronounced that the sentence or ordered that the sentence would run consecutive to the yet to be pronounced state sentence, acknowledging that it was probably going to be a nullity.

[00:06:10] Speaker 01:
However,

[00:06:11] Speaker 01:
the government hasn't argued any type of mootness issue, and I would respectfully... Well, but it's not really a nullity.

[00:06:16] Speaker 02:
I mean, the sentence still exists.

[00:06:19] Speaker 02:
It may be altered in some way.

[00:06:22] Speaker 02:
The practicality of it may be altered because of some subsequent action, but that's not uncommon.

[00:06:29] Speaker 01:
I'm just saying that the district court actually acknowledged it would probably be a nullity and I argued that from a practical standpoint the court's order could not be implemented because he was in federal custody.

[00:06:39] Speaker 02:
Then why are you worried about it if that's true?

[00:06:42] Speaker 01:
Because it's capable of repetition, evading review, and I think it is from an academic standpoint.

[00:06:48] Speaker 01:
Well, it's not really capable.

[00:06:49] Speaker 01:
It might be capable of repetition, but it doesn't seem like it's evading review.

[00:06:53] Speaker 01:
We're fully capable here.

[00:06:55] Speaker 01:
And that's why I think that the court does need to address it, because these are not the circumstances outlined in Stetzer, and then we revert back to the initial statutory analysis.

[00:07:03] Speaker 01:
And the statute that Congress implemented does not provide for the ability to run the case consecutive or concurrent to yet to be pronounced state sentence.

[00:07:10] Speaker 02:
So your position, the way you say that, you make it seem like they wouldn't have even had the ability to sentence and tell the state court.

[00:07:19] Speaker 02:
Because you're saying they couldn't do it either consecutive or concurrently.

[00:07:24] Speaker 01:
And that's exactly what the Montez-Ruiz Court said when analyzing Taylor and Reynolds, which were implemented prior to Stetzer.

[00:07:32] Speaker 01:
that really the court is supposed to stay silent on it.

[00:07:36] Speaker 01:
The court sentences in federal court, he's in federal custody, he's getting sentenced in federal custody first, and that gets into the federalism principles that I argued in the brief as well.

[00:07:44] Speaker 02:
Oh, so you're fine with the sentence.

[00:07:46] Speaker 02:
Correct.

[00:07:46] Speaker 02:
You just don't think any specification should have been made, even if he'd said it was going to be concurrent.

[00:07:53] Speaker 01:
Yet the court should not have made a pronouncement or an order as to consecutive or concurrent to the state sentence.

[00:07:59] Speaker 01:
And if we look at, and I'll sum up the language in Stetzer,

[00:08:02] Speaker 01:
On page 243, it says, in our American system of dual sovereignty, each sovereign, whether the federal government or a state, is responsible for the administration of its own criminal justice system.

[00:08:14] Speaker 01:
If a prisoner like Stetzer starts in state custody, serves his state sentence, and then moves to federal custody, it will always be the federal government, whether the district court or the Bureau of Prisons, that decides whether he will receive credit for time served in state custody.

[00:08:28] Speaker 01:
And if he serves his federal sentence first,

[00:08:31] Speaker 01:
The state will decide whether to give him credit against his state sentences.

[00:08:35] Speaker 01:
And that's what should have happened in this case.

[00:08:36] Speaker 04:
Without being bound by what the district court said on the matter.

[00:08:39] Speaker 04:
That's why I kind of wonder, you know, why we're here because he's going to finish the federal sentence and then the state's going to decide what it's going to do.

[00:08:51] Speaker 04:
And under Setser, it is not bound by what the district court held here.

[00:08:55] Speaker 04:
It can do whatever it wants.

[00:08:56] Speaker 02:
And I guess the issue I have with that, Your Honor.

[00:08:58] Speaker 02:
We don't want an advisory opinion.

[00:08:59] Speaker 02:
There is effectively what you're saying.

[00:09:01] Speaker 01:
And we raised this issue in the district court.

[00:09:03] Speaker 01:
We had a conditional plea agreement.

[00:09:05] Speaker 01:
We knew what was going to happen in state court.

[00:09:07] Speaker 01:
And the judge nevertheless, you know, ordered a sentence that is a nullity and can't occur.

[00:09:12] Speaker 01:
And, you know, we're not supposed to deal with nullities or advisory opinions.

[00:09:14] Speaker 04:
But at the time it was entered, that wasn't known because the state court might have said, that sounds good.

[00:09:19] Speaker 04:
I'll make it consecutive.

[00:09:20] Speaker 01:
The court couldn't.

[00:09:22] Speaker 01:
We could have withdrawn from the plea agreement.

[00:09:23] Speaker 01:
And that's another unique aspect of this.

[00:09:25] Speaker 01:
It was a conditional plea agreement with credit from the date of his arrest.

[00:09:28] Speaker 01:
and mandating that it be concurrent to the federal sentence.

[00:09:31] Speaker 01:
So that's another unique aspect of this.

[00:09:33] Speaker 01:
And I'll reserve what I have left.

[00:09:34] Speaker 01:
No, thank you very much.

[00:09:35] Speaker 01:
Thank you.

[00:09:37] Speaker 02:
We'll hear from the government.

[00:09:50] Speaker 00:
Excuse me.

[00:09:51] Speaker 00:
Good morning, your honors.

[00:09:52] Speaker 00:
May it please the court?

[00:09:54] Speaker 00:
My name is Brianna Chapa, and I represent the United States.

[00:09:58] Speaker 00:
The court is correct.

[00:09:59] Speaker 00:
Setzer clearly disposes of this issue.

[00:10:02] Speaker 00:
Under that case, the Supreme Court held that a district court has discretion to impose a sentence to run consecutive to an anticipated state court sentence.

[00:10:15] Speaker 00:
The issue here.

[00:10:16] Speaker 02:
How often is this done?

[00:10:19] Speaker 02:
I mean, their argument seems to be, hey, just be silent on this.

[00:10:24] Speaker 02:
It clearly is a jump ball, if you will, because we don't know what's going to happen.

[00:10:29] Speaker 02:
Why are you weighing in on this?

[00:10:30] Speaker 02:
Do federal district courts normally weigh in on this, or does this not come up very often?

[00:10:36] Speaker 00:
I am not sure, Your Honor, but what Cesar makes clear is that- Is it you can't?

[00:10:40] Speaker 00:
You can do it.

[00:10:41] Speaker 04:
But why isn't this, I mean, is this case moot?

[00:10:44] Speaker 04:
Because it's very clear under Setzer that the state will have the last word because they're going to get the second custody.

[00:10:53] Speaker 04:
And it's very clear from the last colloquy with defense counsel that the state court must make the sentences concurrent.

[00:11:01] Speaker 04:
That's what the state court judgment says.

[00:11:04] Speaker 04:
And if it doesn't, he gets to withdraw his plea in the state case.

[00:11:08] Speaker 04:
So the state court will make them concurrent.

[00:11:11] Speaker 04:
And this will effectively be a nullity.

[00:11:15] Speaker 04:
It seems nothing turns on this.

[00:11:19] Speaker 04:
What practical consequence would a decision that this sentence is lawful have?

[00:11:27] Speaker 04:
Your question is, why would the decision... Does it make any difference whether if we say, yes, this is okay, and it was all right to say that this can be consecutive?

[00:11:38] Speaker 04:
That seems to make no difference versus whether we say, no, it's unlawful and should be made concurrent.

[00:11:44] Speaker 04:
Nothing happens.

[00:11:46] Speaker 04:
Nothing changes on it.

[00:11:47] Speaker 04:
It's totally an advisory opinion, it would seem.

[00:11:50] Speaker 04:
What in the real world is going to be different depending on how we decide this case?

[00:11:55] Speaker 00:
Well, I think that goes to federalism and dual sovereignty that both courts, the state court and the federal court, can run their sentences how they see fit without being bound by what the other court says on the matter.

[00:12:09] Speaker 00:
I don't think that the federal court here necessarily, or I don't think the federal court should have been bound by the guilty plea agreement that the defendant entered at the state court, because then that would be the state court demanding the federal court how to impose its sentence.

[00:12:24] Speaker 00:
And Setser makes clear that each court is not bound by the sentence that the other imposes.

[00:12:32] Speaker 00:
And also, I think that's why Setser also comes to the holding that even if the first sentence, which in Setser and here was a federal sentence that was imposed, becomes later thwarted by the second sentence from the state court, it doesn't make that sentence unreasonable.

[00:12:48] Speaker 02:
I guess I sort of understand your point.

[00:12:52] Speaker 02:
There is this sense of comedy, if you will.

[00:12:57] Speaker 02:
I don't understand why the federal courts are doing it in this circumstance.

[00:13:00] Speaker 02:
If the cards are always held by the state court in this circumstance, then why is the federal court ever weighing in on it?

[00:13:10] Speaker 02:
I mean, it does seem to be a little, I don't know if heavy-handed is the right word, but it does sort of seem to be, well, we want to get our

[00:13:18] Speaker 02:
you know our word on the books even though we know that it won't have a practical consequence but maybe it will maybe it'll sway the state court in this case it won't but in other cases maybe it will the district judge here at sentencing stated that

[00:13:32] Speaker 00:
She thought it was a necessary sentence due to the repeated supervised release violations and the nature of the supervised release violations became more aggressive over time, starting with the DUI and ultimately ending up with attempted murder and drugs.

[00:13:51] Speaker 00:
And so that is why the district court here thought that it was reasonable to impose the sentences consecutively.

[00:13:58] Speaker 02:
She said that and I don't think anyone's disagreeing that in theory that would have been okay to do, but it doesn't have any practical consequence.

[00:14:08] Speaker 02:
I mean, it can't control at the end of the day because the state court sentencing judge is always going to hold the cards.

[00:14:16] Speaker 02:
So that's why it's just a little bit confusing as to why the federal judge is ever kind of weighing in on this.

[00:14:28] Speaker 00:
That is true, Your Honor.

[00:14:29] Speaker 00:
The second sentencing court will always determine how the sentences will be run.

[00:14:34] Speaker 00:
But under SETSTER, that doesn't make the district court unreasonable.

[00:14:38] Speaker 04:
It's really whoever gets custody second gets to determine what happens.

[00:14:43] Speaker 04:
Because that's when whoever the second custodian is, is the one who gets to decide, well, when am I going to let this person out?

[00:14:53] Speaker 04:
I take it that's just happenstance, whether the

[00:14:56] Speaker 04:
Federal custody is first versus the state custody.

[00:14:59] Speaker 00:
That's right, Your Honor.

[00:15:02] Speaker 00:
If there are no further questions from the court, I'm happy to submit the remainder of my time.

[00:15:06] Speaker 02:
Thank you.

[00:15:07] Speaker 00:
Thank you.

[00:15:16] Speaker 01:
I will be brief and stay within my 35 seconds.

[00:15:20] Speaker 01:
I'm respectfully asking that the court enter an order

[00:15:23] Speaker 01:
striking the portion of the judgments where the federal court ordered the sentence to be concurrent, sorry, consecutive to the state court or alternatively to remand with instructions.

[00:15:33] Speaker 03:
Is there any sort of, you know, you've heard the speculating about, you know, that this would be advisory or so.

[00:15:44] Speaker 03:
Is there any circumstance where the federal court here could have by sentencing them,

[00:15:52] Speaker 03:
Consecutively could have influenced.

[00:15:54] Speaker 01:
I could have something changed something unlikely but unforeseen in the state court was trying to figure out in Theory, but I don't think practically and the reason I say in theory is that the Bureau of prisons does have a lot of discretion in terms of where someone is housed or how they serve their sentence and

[00:16:13] Speaker 01:
and that was one of the initial concerns I had.

[00:16:15] Speaker 03:
I'm assuming that's what our district court colleague must have

[00:16:30] Speaker 03:
must have been thinking in order to do this.

[00:16:33] Speaker 01:
I can tell you that what actually happened is after he was sentenced in federal court they transferred him to state custody which was completely improper because he had already been sentenced in federal court and the state court judge had already ordered that he would be sentenced in state court in absentia.

[00:16:48] Speaker 01:
As a result of that I reached out to the Bureau of Prisons and they acknowledged that the entity or the government body that has initial custody is the one that

[00:16:56] Speaker 01:
is first to serve the sentence.

[00:16:58] Speaker 01:
So it was... So he could have... So if you hadn't fixed it, he could have served the state sentence first, and then the judge's order here would have had some real... And that's why it's not advisory, but it was improper on the part of the Bureau of Prisons, and that's why they remedied it quickly.

[00:17:14] Speaker 03:
So again, just... You both want us to speak on the merits, but it makes no difference in this case.

[00:17:22] Speaker 01:
Ultimately, from a practical standpoint, unless something were to change, which I have concerns about given what the Bureau of Prisons attempted to do already, I agree that he's serving his federal sentence now.

[00:17:33] Speaker 01:
The state court ran it consecutive and backdated his credit.

[00:17:36] Speaker 01:
And it might end up in, you know, no practical consequence to Mr. Kayerath, but I... The BOP transferred him back to state custody.

[00:17:45] Speaker 04:
Suppose we issued, we say it's moot, and then the day after they send him over to state custody, it's going to... It's no longer moot.

[00:17:50] Speaker 01:
...be the big difference.

[00:17:51] Speaker 01:
It's no longer moot.

[00:17:52] Speaker 01:
And that's the issue.

[00:17:54] Speaker 01:
And so I'm just requesting that the language regarding it being consecutive to state court either be stricken by this court as that's the component that I believe violated the case law and statutory law that we cited or alternatively remand with instructions that that portion of the sentence be vacated or stricken.

[00:18:11] Speaker 01:
Thank you.

[00:18:11] Speaker 02:
All right.

[00:18:12] Speaker 02:
Thank you.

[00:18:12] Speaker 02:
Thank you to both counsel for well-stated arguments.

[00:18:16] Speaker 02:
The case is now submitted and we'll move on.