     Case: 11-51039   Document: 00512046960   Page: 1   Date Filed: 11/07/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                November 7, 2012
                                 No. 11-51039
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

SAMUEL DEWAYNE KIRKLIN,

                                           Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:
        Samuel Dewayne Kirklin challenges the sentence imposed following the
revocation of his supervised release. We find reversible plain error in the
sentence. Consequently, we VACATE and REMAND.
        In 2006, Kirklin was convicted of possession with intent to distribute
marijuana. He was sentenced to a term of imprisonment and then three years
of supervised release. While serving his term of supervised release, he was
charged with possession of illegal drugs and with a firearm offense.
        The government filed a motion to revoke the supervised release, and a
hearing was held. At his revocation hearing, the district court considered a
worksheet prepared by the probation office which calculated a Guidelines range
of 18-24 months. The district court sentenced Kirklin to 18 months, half of
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                                  No. 11-51039

which was to be served concurrently with, and half consecutively to, a state
sentence. The Government informed the court that Kirklin already served the
state sentences. The prosecutor was uncertain whether the Bureau of Prisons
would give Kirklin credit for the time served. The district court stated, “All
right. Well, I will go ahead and put in the order that it should run concurrent.”
      For the first time on appeal, Kirklin argues that the district court
committed procedural error in structuring such a sentence. Because no objection
was previously made, our review is for plain error.         See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
      Commentary in the Sentencing Guidelines for probation and supervised
release violations states that a district court “may order a term of imprisonment
to be served consecutively or concurrently to an undischarged term of
imprisonment.”      U.S. Sentencing Guidelines Manual ch. 7, pt. B (2010)
(emphasis added). The commentary relies on a statute that contains that same
language, namely, that “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 . . . .” 18 U.S.C. § 3584(a). Here, in effect, the
district court ordered a sentence to be served concurrently with a no-longer
existing sentence. Kirklin urges us to remand for a new sentencing.
      Because Kirklin did not object, our review is for plain error. Kirklin must
show that the error he ignored in the district court was obvious and affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If those
elements are met, then we must be convinced that correcting the error is
necessary because it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quotation marks omitted).
      We conclude an error occurred that was obvious.             Section 3584(a)
authorizes a federal sentence to be served concurrently with an undischarged
state sentence. Neither that section nor any other authorizes an order that a



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sentence be served concurrently with a discharged state sentence – indeed, it
would make no sense.
      The effect on Kirklin’s substantial rights must now be considered. At the
hearing, the prosecutor and the judge were uncertain how the Bureau of Prisons
would treat this sentence. We considered a related question in one decision,
namely, does a district court have the authority to order a sentence to be served
consecutively to a not-yet entered sentence on one charge in state court, and
concurrently to another charge? United States v. Setser, 607 F.3d 128, 130 (5th
Cir. 2010), aff’d, 132 S. Ct. 1463 (2012). After the federal court entered its
sentence, the state court sentenced Setser to concurrent sentences on both
charges. Id. Thus, it was impossible for the federal sentence to be served in the
manner the district judge had ordered.
      We concluded that the sentence was legally valid because Setser was
arguing about a practical difficulty, not legal error. Id. at 132-33. We also noted
that once a defendant is in the custody of the Bureau of Prisons, it is largely for
that entity to determine how the sentence is to be served consistent with the
sentencing order:
      Furthermore, now that Setser is in the custody of the [Bureau of
      Prisons], and the [Bureau of Prisons] has determined that Setser is
      not entitled to any credit for the time he spent in state custody, we
      are currently without the power or the authority to order the
      [Bureau of Prisons] to calculate Setser’s sentence in any certain
      manner. Notably, “the United States Supreme Court [has] held that
      § 3585(b) does not authorize a [district] court to compute credit for
      time spent in official detention at sentencing, but [rather,] credit
      awards are to be made by the Attorney General, through the Bureau
      of Prisons, after sentencing.”

Id. at 132. When affirming, the Supreme Court discussed Section 3584(a). The
Court found that the sentence was consistent with that section; questions arose
only because of subsequent action by the state court. Setser v. United States, 132




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S. Ct. at 1472. The Court set out Setser’s administrative options for challenging
the manner in which his jailers decided he would serve his sentence. Id. at 1473.
       Our case is different. Kirklin’s sentence is not consistent with Section
3584. Consequently, we cannot conclude as we did in Setser that this is a matter
that is to be left to the authority of the Bureau of Prisons. It is in no better
position than are we to determine the effect of the district court’s order that a
portion of a sentence is to be served at the same time as a state sentence that
had already been completed.
       Consequently, we cannot say Kirklin’s substantial rights are unaffected
because of anything the Bureau of Prisons could do. There is an ambiguity in
the sentence that both Kirklin and the Bureau of Prisons need resolved. We
consider the uncertainty of his sentence to affect Kirklin’s substantial rights and
to have a serious effect on the reputation of the courts were we to leave him
without remedy.
       We VACATE and REMAND for resentencing.1




       1
         We have been informed by the parties that Kirklin is scheduled to be released soon.
As of this date, though, the issues before us are not moot.

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