                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 16-1357
                          ___________________________

                               United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                                     Pierre Watson

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: September 20, 2016
                              Filed: December 8, 2016
                                   ____________

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                             ____________

RILEY, Chief Judge.

      When Pierre Watson was sentenced for running away from a halfway house
where he was serving federal time, see 18 U.S.C. § 751(a), he was also facing federal
charges in a separate case based on allegations of fraud and identity theft. The district
court1 sentenced Watson to a year and a half in prison for the escape—the middle of
the uncontested advisory range under the United States Sentencing Guidelines—and
specified that the sentence “shall run consecutively to any sentence that may be
imposed if [Watson] should be convicted in the pending [fraud] case.” Watson did
not object at the time, yet on appeal he argues the district court did not have authority
to make his sentence consecutive to another federal sentence that had not yet been
imposed.2

       As Watson acknowledges, he forfeited his challenge by not raising it before the
district court, so he can obtain relief only if the consecutive sentence was a plain
error—meaning an error that is “clear or obvious under current law”—that affected
his substantial rights. United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011); see
also Fed. R. Crim. P. 52(b). Watson concedes neither the Supreme Court nor this
court has previously resolved the issue presented in this case. He argues the answer
is nonetheless clear based on dictum from the Supreme Court and decisions from
other Courts of Appeals. We are not convinced.

      The Supreme Court dictum comes from a footnote in Setser v. United States,
concerning the similar, but distinct issue of whether a district court could make a
federal sentence run consecutively to an anticipated state sentence. See Setser v.
United States, ___ U.S. ___, ___, 132 S. Ct. 1463, 1466 (2012). The Supreme Court
held that because the statute governing concurrent and consecutive sentences,
18 U.S.C. § 3584(a), does not address cases where the other sentence has not yet been
imposed,3 district courts retain their common-law “discretion to select whether the

      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
      2
          We have jurisdiction of the appeal under 28 U.S.C. § 1291.
      3
          The relevant statutory language is:


                                           -2-
sentences they impose will run concurrently or consecutively with respect to [such]
sentences.” Id. at ___, 132 S. Ct. at 1468-69 (“Section 3584 . . . is framed not as a
conferral of authority”—in which case the failure to mention this situation would
mean no authority was conferred—“but as a limitation of authority that already
exists.”). The footnote in question was prompted by the defendant raising the
prospect that such reasoning would also seem to extend to cases like this one, where
the anticipated sentence was federal (which he apparently assumed the Court would
consider problematic), because “the text of § 3584(a) does not distinguish between
state and federal sentences.” Id. at ___ n.4, 132 S. Ct. at 1471 n.4. As a counterpoint,
the Court offered a plausible interpretation of the statute that would in fact support
such a distinction:

      It could be argued that § 3584(a) impliedly prohibits [a federal court
      making a sentence consecutive to an anticipated federal sentence]
      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.


Id.


      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) (emphasis added).

                                          -3-
       That is the reading Watson now invokes to justify reaching the opposite
outcome here than in Setser. But the Supreme Court’s suggestion that drawing such
a line could be textually defensible, by itself, is not nearly enough to satisfy us it is
clear and obviously right. To the contrary, the footnote was the Court’s
demonstration why it understood its decision in Setser was not dictating a clear
answer to the question presented in Watson’s situation. See id. (“It suffices to say,
however, that this question [of an anticipated federal sentence] is not before us.”).
Nor can we say, regardless of what the Court meant to leave open, the proposed
interpretation is so compelling that, now when the issue has been articulated, reading
§ 3584(a) any other way would be clearly wrong. Watson’s theory is premised on the
idea that § 3584(a) “gives” the concurrent-or-consecutive decision to the second court
to sentence a defendant, see Setser, ___ U.S. at ___ n.4, 132 S. Ct. at 1471 n.4,
however, that is not the only way to read the relevant clause. Rather, it reasonably
could be understood as simply clarifying both concurrent and consecutive sentences
are permissible, without speaking to which court gets to choose between them. See
18 U.S.C. § 3584(a) (“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”).


      The other appellate decisions Watson cites are United States v. Almonte-Reyes,
814 F.3d 24 (1st Cir. 2016), United States v. Obey, 790 F.3d 545 (4th Cir. 2015), and
United States v. Montes-Ruiz, 745 F.3d 1286 (9th Cir. 2014). All three ultimately
adopted the position proposed in the Setser footnote.4 See Almonte-Reyes, 814 F.3d

      4
        Another court reached the same result—allowing federal district courts to
make sentences concurrent or consecutive to anticipated state sentences but not to
federal ones—in a case decided before Setser. See United States v. Quintana-Gomez,
521 F.3d 495, 497-98 (5th Cir. 2008). Because the reasoning in that decision differed
from what the Supreme Court later adopted, see Setser, ___ U.S. at ___, 132 S. Ct.
at 1468-72; Quintana-Gomez, 521 F.3d at 497-98, it reveals even less than the post-
Setser cases about the current clarity of the law for our circuit.

                                          -4-
at 28-29; Obey, 790 F.3d at 549; Montes-Ruiz, 745 F.3d at 1292-93. None, however,
treated it as obvious. Instead, they all saw fit to offer substantive analyses of the issue
before reaching their conclusions. See Almonte-Reyes, 814 F.3d at 27-29; Obey, 790
F.3d at 548-50; Montes-Ruiz, 745 F.3d at 1290-93; see also Obey, 790 F.3d at 549-50
(deciding the issue but then denying relief on plain-error review); cf. Almonte-Reyes,
814 F.3d at 27 n.4 (declining to apply the plain-error standard because the
government did not ask for it). Two decisions based their holdings in large part on
circuit precedent that had prohibited making a sentence concurrent or consecutive to
any sentence that had not yet been imposed, state or federal. See Obey, 790 F.3d at
549 (citing United States v. Smith, 472 F.3d 222, 224, 226 (4th Cir. 2006)); Montes-
Ruiz, 745 F.3d at 1290, 1292-93 (citing Taylor v. Sawyer, 284 F.3d 1143, 1148 (9th
Cir. 2002)). Those prior decisions, the courts ruled, were only partly overruled by
Setser and remained good law with respect to anticipated federal sentences. See
Obey, 790 F.3d at 549; Montes-Ruiz, 745 F.3d at 1292-93.


        We have no comparable precedent. Our closest case, although not controlling,
at first glance points the opposite direction. See United States v. Mayotte, 249 F.3d
797, 799 (8th Cir. 2001) (holding the district court had authority to make a sentence
consecutive to an anticipated state sentence and, on its face, giving no reason to think
a different rule would apply for federal sentences). We are not so thoroughly
persuaded by the decisions of our sister circuits that we consider the point settled
beyond debate.5 Like them, we think Setser left open the question of whether the

      5
         For one thing, while it is certainly true that “‘when it comes to sentencing,
later is always better because the decisionmaker has more information,’” as the most
recent case emphasizes, see Almonte-Reyes, 814 F.3d at 29 (quoting Setser, ___ U.S.
at ___, 132 S. Ct. at 1471), it is not obvious why that is not just a consideration for
the district court when deciding whether to make a concurrent-or-consecutive
determination with respect to an anticipated sentence, rather than a justification for
taking away the first court’s discretion entirely. See Setser, ___ U.S. at ___ n.6,
132 S. Ct. at 1472 n.6 (“Of course, a district court should exercise the power to

                                           -5-
district court could make Watson’s prison term for the escape consecutive to any
sentence arising from the other federal charges pending against him. Because that
means any error in this case is not plain, we affirm. We leave resolution of the issue
for a case in which it is properly raised and preserved.
                        ______________________________




impose anticipatory consecutive (or concurrent) sentences intelligently. In some
situations, a district court may have inadequate information and may forbear, but in
other situations, that will not be the case.”). Importantly, the related concern that the
first court will be unable to weigh the sentencing factors under 18 U.S.C. § 3553(a)
without knowing for sure what else the defendant might be convicted of or what the
second sentence might be, see Smith, 472 F.3d at 227, cited in Obey, 790 F.3d at 549,
and Montes-Ruiz, 745 F.3d at 1292-93, closely resembles an argument the Supreme
Court addressed and rejected in Setser. See Setser, ___ U.S. at ___, 132 S. Ct. at
1470 (“One cannot be sure that the sentence imposed is ‘sufficient, but not greater
than necessary,’ § 3553(a), the argument goes, if one does not know how long it will
actually be. But the district judge faces the same uncertainty if the concurrent-vs.-
consecutive decision is left for later resolution . . . ; he does not know, for example,
whether the 5-year sentence he imposes will be an actual five years or will be simply
swallowed within another sentence.”).

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