                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 14 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10618

              Plaintiff-Appellee,                D.C. No. 4:13-cr-00139-JGZ

 v.
                                                 MEMORANDUM*
YASIR MILLAN-SANCHEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                            Submitted March 8, 2017**

Before:      LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

      Yasir Millan-Sanchez appeals from the district court’s judgment entered

upon remand, which does not specify whether the 60-month concurrent sentences

imposed therein shall run concurrently or consecutively to any additional time the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
State of Utah orders him to serve for his parole violation on an earlier state

conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Millan-Sanchez argues that the district court was required to make a

concurrent/consecutive determination under 18 U.S.C. § 3584(a). However, that

statute does not apply here because, at the time Millan-Sanchez’s federal sentence

was imposed, he was not already subject to an undischarged term of imprisonment;

rather, the state had yet to sentence him for his parole violation. See Setser v.

United States, 566 U.S. 231, 234-35 (2012) (section 3584(a) did not apply where

the state court had yet to impose a sentence on the probation violation when the

federal sentence was imposed). In any event, the statute does not help Millan-

Sanchez because it plainly contemplates that there will be situations where the

district court does not order its sentence to be concurrent or consecutive. See id. at

239-40 (section 3584(a) sets forth what will be assumed in certain situations when

the district court does not specify whether its sentence is concurrent or

consecutive). We also reject Millan-Sanchez’s suggestion that the district court’s

refusal to make the concurrent/consecutive determination was a violation of this

court’s mandate. As required by this court, the district court considered Setser, and

acknowledged its discretion to make the concurrent/consecutive determination.




                                           2                                15-10618
See id. at 244. Nothing in our order or otherwise required it to exercise its

discretion.

      Millan-Sanchez also contends that the district court clearly erred in deferring

the concurrent/consecutive decision because it presumed that the decision would be

made by a Utah court when in fact the parole board will decide whether to credit

his federal sentence towards any subsequent time he is ordered to serve in Utah.

Any factual error by the district court does not merit reversal because it does not

undermine the court’s conclusion that Utah—by whatever sentencing procedure it

employs—is in a better position to decide whether or not Millan-Sanchez should

receive credit for his federal time when determining the penalty for his Utah parole

violation. Indeed, as a practical matter, any decision by the district court would not

be controlling in this case because, by virtue of the fact that Utah will sentence

Millan-Sanchez after his federal sentence terminates, it will ultimately determine

the overall sentence that Millan-Sanchez serves. See id. at 241 (if a defendant

serves his federal sentence first, “the State will decide whether to give him credit

against his state sentences without being bound by what the district court . . . said

on the matter”).

      AFFIRMED.




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