              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 14a0204n.06

                                       Case No. 12-3146

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

                                                                          FILED
                                                                      Mar 17, 2014
MICHAEL J. McPARTLAND,                             )
                                                                  DEBORAH S. HUNT, Clerk
                                                   )
       Petitioner-Appellant,                       )
                                                   )      ON APPEAL FROM THE
v.                                                 )      UNITED STATES DISTRICT
                                                   )      COURT FOR THE NORTHERN
UNITED STATES OF AMERICA,                          )      DISTRICT OF OHIO
                                                   )
       Respondent-Appellee.                        )
                                                   )
__________________________________/                )


Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Michael McPartland appeals the denial of

his 28 U.S.C. § 2255 motion.           For the following reasons, we remand for further

consideration by the district court.

                                              I.

       In August of 2008, McPartland pleaded guilty to nine counts of bank robbery in

violation of 18 U.S.C. § 2113. In accordance with McPartland’s plea agreement, the

federal district judge sentenced McPartland to 76 months of imprisonment for each of the

nine bank robbery counts, to be served concurrently.         At the time of his federal
Case No. 12-3146, McPartland v. United States


sentencing, McPartland also faced an Ohio state assault charge for backing his car into an

Ohio police cruiser while trying to avoid arrest in connection with the nine bank

robberies. There was no mention of this state assault charge at McPartland’s federal

sentencing and McPartland’s counsel did not request that his federal sentence be served

concurrently with the anticipated but not-yet-imposed state assault sentence.1

       McPartland later pleaded guilty to the Ohio assault charge pursuant to a plea

agreement that provided that the state would recommend McPartland’s state sentence run

concurrently with his federal sentence.                The Ohio court rejected the state’s

recommendation and sentenced McPartland to three years of imprisonment, to be served

consecutively to his federal sentence. McPartland served the Ohio sentence then, in

December of 2010, he began serving his federal sentence.                    McPartland provides a

computer printout from January 5, 2011, which indicates that the Bureau of Prisons did

not credit him for time served on his state conviction.

       McPartland then filed his § 2255 motion on November 14, 2011, requesting that

the court credit him with time served for the 944 days he was imprisoned on his state

conviction. In addressing the motion, the district judge listed several reasons for denial,

although it is clear that the primary reason was that he was bound by our decision in

United States v. Quintero, 157 F.3d 1038 (6th Cir. 1998), where we held that district

courts did not have the authority to order federal sentences to be served consecutively to

a not-yet-imposed state sentence.

1
 The federal sentencing court did take McPartland’s flight from Ohio police into account when it applied
a two-level sentencing enhancement under Federal Sentencing Guidelines § 3C1.2, Reckless
Endangerment During Flight.


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Case No. 12-3146, McPartland v. United States


       Shortly thereafter, the Supreme Court issued its decision in Setser v. United States,

132 S. Ct. 1463, 1473 (2012), which held that it is within a district court’s discretion to

order a defendant’s federal sentence to run consecutively or concurrently to an

anticipated state sentence. Setser abrogated United States v. Quintero.

       In light of Setser, we granted McPartland a certificate of appealability. We have

concluded that the § 2255 petition is timely because it was filed within one year of the

Setser decision and not barred by the appellate waiver McPartland signed, see United

States v. Bowman, 634 F.3d 357, 361 (2011).          Because the district judge correctly

concluded at the time that he could not order a concurrent sentence, a remand, in light of

Setser, would be the best way to resolve these issues. Upon remand, the district judge is

free to order that the sentences be concurrent and give McPartland credit for time served

on his state sentence, or decline to do so. We express no opinion on what course of

action the district judge should follow.

       REMANDED.




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