              Case: 15-14074   Date Filed: 05/04/2016   Page: 1 of 4


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-14074
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:08-cr-20887-FAM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,


                                     versus


JUAN CARLOS RIVAS,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 4, 2016)

Before MARTIN, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Two judges sentenced Juan Carlos Rivas for two separate crimes. First,

Judge James Lawrence King of the U.S. District Court for the Southern District of
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Florida sentenced Rivas to 30 months in prison for an illegal reentry conviction. A

week later, Judge Federico A. Moreno of the same court sentenced Rivas to six

months in prison for a violation of supervised release. After Judge King

announced the 30-month sentence in his case, he stated that the sentence “shall run

concurrent” to whatever sentence Judge Moreno chose in the other case. Judge

Moreno acknowledged Judge King’s wishes but decided that the six-month

sentence in his case would run consecutively to the 30-month sentence from Judge

King’s case. This is an appeal of the sentence in Judge Moreno’s case. Rivas

argues that Judge Moreno could not impose a consecutive sentence once Judge

King said the two sentences would be concurrent. The question before us then is

whether one judge can require another judge to impose a concurrent rather than

consecutive sentence in the future. The answer is no.

      We review the imposition of a consecutive sentence for abuse of discretion.

United States v. Covington, 565 F.3d 1336, 1346 (11th Cir. 2009). When a

defendant faces more than one prison sentence, 18 U.S.C. § 3584(a) authorizes the

judge to choose to run those sentences either concurrently or consecutively. This

includes a new sentence imposed on a defendant who is still serving a sentence

imposed in the past. See 18 U.S.C. § 3584(a) (“[I]f 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.”). If a judge


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chooses a consecutive sentence, the choice must be based on the factors listed in 18

U.S.C. § 3553(a). See id. § 3584(b) (“The court, in determining whether the terms

imposed are to be ordered to run concurrently or consecutively, shall consider, as

to each offense for which a term of imprisonment is being imposed, the factors set

forth in [§] 3553(a).”).

      At the time Judge Moreno sentenced Rivas, the 30-month sentence that

Judge King had imposed the previous week was “an undischarged term of

imprisonment.” Id. § 3584(a). This means § 3584 authorized Judge Moreno to

make Rivas’s new sentence either concurrent or consecutive to the 30-month

sentence. The sentencing transcript reflects that Judge Moreno knew he had the

discretion to make this choice. He also knew that the guideline range in Judge

King’s case was 57 to 71 months in prison. Judge Moreno stated that he believed

Rivas “should do six more months than what Judge King gave him.” He also

confirmed that he “considered [the §] 3553(a) factors in the sentence” and added

that the sentence he chose was half of “what the probation officer recommended”

(a 12-month consecutive sentence).

      Rivas argues that “once the concurrent vs. consecutive question was

addressed by the first sentencing judge the second sentencing judge no longer had

the authority to address this issue.” The sole authority Rivas cites for this

argument is Setser v. United States, __ U.S. __, 132 S. Ct. 1463 (2012). Setser


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held that a federal judge can require a sentence to run consecutive to a state

sentence that has not been imposed yet. Id. at 1473. Setser did nothing to deprive

Judge Moreno of his § 3584 authority to choose a consecutive sentence. The issue

in Setser was whether a judge can tack a consecutive sentence on to a sentence that

would be imposed in the future by a separate sovereign (a state), not whether one

judge can require another judge to impose a concurrent sentence in the future.

      The record shows that Judge Moreno acted within his discretion when he

chose a consecutive sentence. Rivas’s sentence in this case is AFFIRMED.




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