                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1150n.06

                                            No. 10-2692                                 FILED
                                                                                     Nov 07, 2012
                           UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
v.                                                         )   THE EASTERN DISTRICT OF
                                                           )   MICHIGAN
RICHARD ALAN ZORN,                                         )
                                                           )
       Defendant-Appellant.                                )




       Before: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.*

       KETHLEDGE, Circuit Judge. This case is before us a second time. Richard Zorn pled guilty

to receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and

possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At the time of his

federal sentencing hearing, Zorn was in state custody for state offenses for which he had not yet been

sentenced. Zorn argued during his federal sentencing hearing that his sentence should be reduced

for the time he had already spent in state custody. The district court rejected his argument, stating

that the court lacked authority to make Zorn’s federal sentence run “concurrently with a state

sentence that has not been imposed.” On appeal, we agreed and affirmed Zorn’s sentence. See

United States v. Zorn, 461 F. App’x. 493, 496 (6th Cir. 2012).



       *
       The Honorable Amul Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 10-2692
United States v. Zorn

       Soon thereafter, the Supreme Court held that a district court does have discretion to make a

federal sentence either concurrent with or consecutive to any sentence yet to be imposed in state-

court proceedings. See Setser v. United States, 132 S. Ct. 1463, 1468 (2012). Zorn then petitioned

for a writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and

remanded the case for further consideration in light of Setser. See Zorn v. United States, __ S. Ct.

__, 2012 WL 1804685 (Oct. 1, 2012).

       Accordingly, we vacate the district court’s judgment and remand the case with instructions

for the court to exercise its discretion whether Zorn’s federal sentence should run consecutive to, or

concurrent with, his state-court sentence. The Supreme Court’s decision in Setser does not affect

our analysis with respect to the other issues in Zorn’s appeal; and we hereby reinstate our decision

with respect to those other issues.




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