          United States Court of Appeals
                     For the First Circuit


No. 13-1934

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    HERIBERTO ALMONTE-REYES,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]


                             Before

                      Lynch, Circuit Judge,
                   Souter,* Associate Justice,
                    and Stahl, Circuit Judge.


     Raymond E. Gillespie for appellant.
     Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                        February 18, 2016




     *    Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
                  LYNCH, Circuit Judge.          In this case of first impression

in this circuit, we face a question the Supreme Court expressly

left open in Setser v. United States, 132 S. Ct. 1463 (2012):

whether a federal sentence may be ordered to be consecutive to

another federal sentence that is anticipated but not yet imposed.

We    conclude       that     it    may   not.        We     reverse   and    remand   for

resentencing.

                                               I.

                  On October 4, 2012, Heriberto Almonte-Reyes pleaded

guilty in the District of Puerto Rico to conspiracy to import a

hundred      grams     or   more     of   heroin,      in    violation   of     21   U.S.C.

§§ 952(a), 960(a)(1), (b)(2)(A), 963.                       In the plea agreement, the

parties jointly recommended a sentence between 102 and 120 months

of imprisonment.            The parties also recognized that Almonte-Reyes

had pending criminal charges in the Northern District of Georgia,

and        they     jointly        expressed        their     "intent,       desire,   and

recommendation that the sentence in this case and the sentence in

[the Northern District of Georgia case] run concurrently."1


       1   The indictment in the Northern District of Georgia
charged   Almonte-Reyes   and   seventeen   co-conspirators   with
conspiracy to commit money laundering and conspiracy to distribute
controlled substances.    Indictment, United States v. Almonte-
Reyes, No. 09-cr-00025 (N.D. Ga. Jan. 21, 2009), ECF No. 1. The
duration of the conspiracies alleged in the Northern District of
Georgia indictment overlap with the term of the conspiracy alleged
in the District of Puerto Rico indictment. Beyond that, however,
the record does not make clear the exact relationship between the
two cases.

                                           - 2 -
           On July 1, 2013, the district court in Puerto Rico

sentenced Almonte-Reyes to 120 months of imprisonment, "to be

served consecutively to any term to be imposed in a pending case."

(emphasis added).       Almonte-Reyes did not object to the consecutive

nature of the sentence at the time of sentencing.

           On    July   5,    2013,   Almonte-Reyes     filed   a   motion   for

reconsideration seeking to eliminate the part of the sentence

ordering   his   term    of   imprisonment    to   be   consecutive    to    the

anticipated Northern District of Georgia sentence.              He argued that

such a consecutive sentence went beyond the district court's

sentencing authority under 18 U.S.C. § 3584(a). The district court

denied the motion.       This appeal followed.

           On December 19, 2013, Almonte-Reyes pleaded guilty in

the Northern District of Georgia to one count of conspiracy to

commit money laundering.         Guilty Plea and Plea Agreement, United

States v. Almonte-Reyes, No. 09-cr-00025 (N.D. Ga. Dec. 19, 2013),

ECF No. 500.     On October 17, 2014, after the filing of the briefs

in this appeal, the Northern District of Georgia sentenced Almonte-

Reyes to 87 months of imprisonment to be served concurrently with

the sentence at issue here.           Transcript of Sentencing Hearing,

Almonte-Reyes, No. 09-cr-00025 (N.D. Ga. Oct. 17, 2014), ECF No.

568.

           The government had argued in its initial briefing that

the imposition of the later federal sentence would moot the case.

                                      - 3 -
Doubtful, we ordered the parties to make supplemental filings on

the issue of mootness.        In their supplemental filings, Almonte-

Reyes took the position that the appeal was not moot, while the

government maintained that it was.

                                     II.

            To start, we reject the government's argument that this

appeal is mooted by the imposition of the sentence in the Northern

District of Georgia.

            The government argues that once the Northern District of

Georgia imposed a concurrent sentence, the consecutive nature of

the sentence imposed by the District of Puerto Rico ceased to have

effect.    The reason, the government says, is that the decision of

the Northern District of Georgia controls because its sentence

came later in time.        For that proposition, the government cites

Odekirk v. Ryan, 85 F.2d 313, 315 (6th Cir. 1936) ("Where . . .

sentences are imposed by different courts, the intention of the

court     imposing   the   second    or     later   sentence    is     .    .     .

controlling . . . .").

            But, the government argues, that the District of Puerto

Rico's    consecutive   sentencing    decision      was   superseded   by       the

Northern District of Georgia's later-in-time sentence does not

mean that the District of Puerto Rico's sentence was legally

impermissible at the time it was imposed.            Rather, the government

suggests, we should consider this a situation where developments

                                    - 4 -
that take place after an initial sentencing require the adjustment

of a sentence.        Certain mechanisms are available to prisoners for

adjustment of a sentence, the government says, and Almonte-Reyes

should seek relief through those means rather than challenging the

lawfulness of the initial sentence.             Specifically, the government

points to 18 U.S.C. § 3582(c)(1)(A), which allows a district court

to reduce a prison term "upon motion of the Director of the Bureau

of Prisons . . . if it finds that . . . extraordinary and compelling

reasons warrant such a reduction"; 28 C.F.R. § 542.10, the Bureau

of Prisons' Administrative Remedy Program; or, alternatively,

judicial action under 28 U.S.C. § 2241, a writ of habeas corpus.

In essence, the government concedes that Almonte-Reyes should

serve concurrent sentences but urges us to leave the matter for

the Bureau of Prisons or a future district court to resolve.

               This case is not mooted by the possibility that Almonte-

Reyes       might    succeed   in   adjusting    his   sentence   through   the

alternative mechanisms suggested by the government.               For one, we

do not know the Bureau of Prisons' position on this issue, so it

is not a foregone conclusion that Almonte-Reyes will be considered

eligible       for    relief   through   those     alternative    mechanisms.2


        2 The first two alternative mechanisms proposed by the
government both rely on acquiescence by the Bureau of Prisons.
While a writ of habeas corpus does not rely on such acquiescence
by the Bureau of Prisons, it cannot be that the possibility of
future success on habeas would moot Almonte-Reyes's direct appeal
of his sentence.
                                       - 5 -
Moreover, Almonte-Reyes argues that the District of Puerto Rico's

sentence was legally impermissible at the time it was imposed, and

that question must be subject to judicial determination in this

direct appeal.

          We proceed to determine whether the District of Puerto

Rico acted within its legal authority when it specified Almonte-

Reyes's sentence to be consecutive to an anticipated but not-yet-

imposed federal sentence.3   Our review is de novo as it involves a

question of statutory interpretation.4    United States v. Vidal-




     3    There is one more antecedent issue raised in the parties'
briefs, but we can quickly dispense of it. Almonte-Reyes's plea
agreement contained a waiver-of-appeal clause that both parties
agree does not bar this appeal. We agree that because the district
court's imposition of a consecutive sentence ran counter to the
parties' joint recommendation, Almonte-Reyes's claim falls outside
the scope of the waiver of appeal. See United States v. Santiago-
Burgos, 750 F.3d 19, 23–24 (1st Cir. 2014); United States v.
Maldonado-Escarfullery, 689 F.3d 94, 97 n.2 (1st Cir. 2012).

     4    Almonte-Reyes concedes that he did not make a
contemporaneous objection to the consecutive nature of his
sentence. Although he claims that he nonetheless preserved the
issue by raising it in a timely motion for reconsideration, circuit
precedent forecloses that claim.      See, e.g., Dillon v. Select
Portfolio Servicing, 630 F.3d 75, 80 (1st Cir. 2011); Iverson v.
City of Bos., 452 F.3d 94, 104 (1st Cir. 2006).
          While Almonte-Reyes's failure to preserve the objection
would ordinarily result in plain error review, the government has
failed to request application of a plain error standard. We have
often declined to apply a plain error standard when the government
fails to invoke it, and we do the same here. See, e.g., United
States v. Soto-Rivera, No. 14-1216, 2016 WL 279364, at *3 (1st
Cir. Jan. 22, 2016); United States v. Paulino-Guzman, 807 F.3d
447, 450 n.5 (1st Cir. 2015); United States v. Encarnación-Ruiz,
787 F.3d 581, 586 (1st Cir. 2015).
                               - 6 -
Reyes, 562 F.3d 43, 48 (1st Cir. 2009).        The relevant statute

provides:

            If multiple terms of imprisonment are imposed
            on a defendant at the same time, or if a term
            of imprisonment is imposed on a defendant who
            is already subject to an undischarged term of
            imprisonment, the terms may run concurrently
            or consecutively, except that the terms may
            not run consecutively for an attempt and for
            another offense that was the sole objective of
            the attempt. Multiple terms of imprisonment
            imposed at the same time run concurrently
            unless the court orders or the statute
            mandates   that   the   terms   are   to   run
            consecutively. Multiple terms of imprisonment
            imposed at different times run consecutively
            unless the court orders that the terms are to
            run concurrently.

18 U.S.C. § 3584(a).

            In Setser, the Supreme Court addressed the question of

whether § 3584(a) allows the imposition of a federal sentence

consecutive to an anticipated state sentence.     The Court began by

noting that § 3584(a) is silent on that question:

            [Section 3584(a),] which says when concurrent
            and consecutive sentences may be imposed, and
            specifies which of those dispositions will be
            assumed in absence of indication by the
            sentencing judge, does not cover the situation
            here.   It addresses only "multiple terms of
            imprisonment . . . imposed . . . at the same
            time" and "a term of imprisonment . . . imposed
            on a defendant who is already subject to an
            undischarged term of imprisonment." Here the
            state sentence is not imposed at the same time
            as the federal sentence, and the defendant was
            not already subject to that state sentence.




                                - 7 -
Setser, 132 S. Ct. at 1467 (alterations in original) (citation

omitted) (quoting 18 U.S.C. § 3584(a)).             The Court then rejected

the defendant's expressio unius argument that the district court's

power to impose a consecutive sentence was limited to the two

listed   situations.        Id.   at   1469.    Rather,   the   Court   noted,

"[s]ection 3584 . . . is framed not as a conferral of authority

but as a limitation of authority that already exists."              Id.   The

Court    found    the     prior   existence    of   consecutive   sentencing

authority    in    "the     common-law    background   against    which   the

statutes . . . were enacted," id. at 1468 (alteration in original)

(quoting New Orleans Pub. Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 359 (1989)), under which "[j]udges have

long been understood to have discretion to select whether the

sentences they impose will run concurrently or consecutively with

respect to other sentences that they impose, or that have been

imposed in other proceedings, including state proceedings," id.

The Court therefore concluded that § 3584(a) "le[ft] room for the

exercise of judicial discretion in the situations not covered."

Id. at 1470.

            The Supreme Court suggested that the same logic may not

apply when the anticipated sentence is federal, although it did

not ultimately decide the question:

            Setser notes that the text of § 3584(a) does
            not distinguish between state and federal
            sentences. If a district court can enter a

                                       - 8 -
          consecutive sentencing order in advance of an
          anticipated state sentence, he asks, what is
          to stop it from issuing such an order in
          advance of an anticipated federal sentence?
          It could be argued that § 3584(a) impliedly
          prohibits such an order because it gives that
          decision to the federal court that sentences
          the defendant when the other sentence is
          "already" imposed -- and does not speak (of
          course) to what a state court must do when a
          sentence has already been imposed.         It
          suffices to say, however, that this question
          is not before us.

Id. at 1471 n.4.

          We adopt the distinction suggested in Setser's footnote

four.   The Supreme Court's reasoning in Setser began with the

premise that § 3584(a) is silent on whether a federal court can

impose a sentence that is consecutive to an anticipated state

sentence. The statute is not similarly silent when the anticipated

sentence is federal.   Section 3584(a) says that when a term of

imprisonment has "already" been imposed, a federal court has the

power to sentence concurrently or consecutively, and the sentence

is presumed to be consecutive unless the court orders otherwise.

By giving such discretion to the later federal sentencing court,

"§ 3584(a) impliedly prohibits" an earlier federal court from

making that decision with respect to a future federal sentence.

Id.

          In so concluding, we agree with the two other courts of

appeals that have decided, following Setser, that a district court

does not have the power to impose a sentence consecutive to an

                              - 9 -
anticipated      but       not-yet-determined       federal    sentence.        United

States v. Obey, 790 F.3d 545, 549 (4th Cir. 2015); United States

v. Montes-Ruiz, 745 F.3d 1286, 1290–93 (9th Cir. 2014).

              Not only is this conclusion the best reading of the text

of the statute, but it is also consistent with other considerations

noted by the Supreme Court in Setser.                    First, Setser recognized

the    tradition      of    judicial     discretion      to   determine     whether   a

sentence runs concurrently or consecutively.                   132 S. Ct. at 1468.

While the government's position superficially allows discretion

for    the    first    sentencing        court,     it   eliminates    or    severely

constrains discretion for the second sentencing court.                      The later

sentencing court is put under the pressure of either ignoring its

own judgment or contradicting another district court.                        We think

Congress could not have intended that result.                     See Montes-Ruiz,

745 F.3d at 1292 (citing United States v. Quintana-Gomez, 521 F.3d

495, 497–98 (5th Cir. 2008)).                 Moreover, under the government's

position, if the two federal courts disagree (as here), the

question ends up having to be resolved by the Bureau of Prisons,

whose choice of how to implement the sentence will necessarily

fail    to    accord       with    one   of   the   federal    judges'      decisions.

Resolution of the issue by the Bureau of Prisons would run counter

to     "our   tradition       of    judicial    sentencing,      and   .    .   .   the

accompanying desideratum that sentencing not be left to employees



                                          - 10 -
of the same Department of Justice that conducts the prosecution."

Setser, 132 S. Ct. at 1471–72.5

            Second, the outcome we reach is consistent with the

principle, recognized by the Setser Court as "undoubtedly true,"

that "when it comes to sentencing, later is always better because

the decisionmaker has more information."          Id. at 1471.6

            Third,   the   Court   in   Setser    faced   dual   sovereignty

concerns not present here because both sentences are federal.           Id.

at 1471. While Setser concluded that respect for state sovereignty

supported      the     exercise         of   concurrent-vs.-consecutive

decisionmaking authority by an earlier sentencing federal court,

the   situation   before   us   implicates   no    such   dual   sovereignty

concerns.    Id.; see also Quintana-Gomez, 521 F.3d at 497 (pre-

Setser case using dual sovereignty as basis for distinguishing




      5   We recognize the Setser dissent's suggestion that it
would not be "constitutionally surprising" for the Bureau of
Prisons to play a part alongside judges in sentencing. Setser,
132 S. Ct. at 1477 (Breyer, J., dissenting) (citing Mistretta v.
United States, 488 U.S. 361, 364 (1989)). However, we are bound
by the majority, which took issue with the idea of leaving the
question to the Bureau of Prisons. Id. at 1471–72 & n.5 (majority
opinion).

      6   The dissenting members of the Setser Court would agree
with us on this point. See Setser, 132 S. Ct. at 1476 (Breyer,
J., dissenting) (expressing concern that "the [earlier] sentencing
judge normally does not yet know enough about what will happen in
the sentencing-proceeding-yet-to-come" to fairly decide whether
the sentences should be concurrent or consecutive).

                                   - 11 -
between federal court's authority to sentence consecutively to

anticipated state and federal sentences).

          In sum, we conclude that, under 18 U.S.C. § 3584(a), a

federal sentencing court does not have the authority to determine

that a sentence should be consecutive to a federal sentence that

has not yet been imposed.

                               III.

          We reverse and remand.   On remand, the district court is

instructed to strike the portion of the sentence specifying the

term of imprisonment "to be served consecutively to any term to be

imposed in a pending case."




                              - 12 -
