                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 12-50398
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                       3:07-cr-01164-LAB-1

 JAVIER MONTES-RUIZ,
          Defendant-Appellant.                      OPINION


         Appeal from the United States District Court
           for the Southern District of California
          Larry A. Burns, District Judge, Presiding

                    Argued and Submitted
            August 26, 2013—Pasadena, California

                        Filed March 21, 2014

   Before: Ronald M. Gould and Johnnie B. Rawlinson,
   Circuit Judges, and Ivan L.R. Lemelle, District Judge.*

                  Opinion by Judge Rawlinson




 *
   The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
2               UNITED STATES V. MONTES-RUIZ

                           SUMMARY**


                           Criminal Law

    The panel affirmed in part and vacated in part a criminal
judgment, and remanded for resentencing, in a case in which
the district court ordered a sentence, imposed upon revocation
of supervised release, to run consecutively to an anticipated,
but not-yet-imposed, federal sentence in a separate case.

    Because the district court may impose a lesser sentence if
the case is remanded, the panel rejected the government’s
argument that the appeal is moot.

    The panel held that 18 U.S.C. § 3584 does not permit a
federal sentencing court to impose a sentence to run
consecutively to another federal sentence that has yet to be
imposed, and that the district court is free to consider on
remand all issues relevant to sentencing, including the
sentence subsequently imposed in the other case.

    Reviewing for plain error, the panel rejected the
defendant’s argument that the district court erred by
sentencing him to a term of twenty-four months’
incarceration for his violation of supervised release, without
crediting the time he served for a prior revocation.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. MONTES-RUIZ                   3

                        COUNSEL

Devin Burstein, Warren & Burstein, San Diego, California,
for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Chief, Appellate Section, Criminal Division, James P.
Melendres (argued), Assistant United States Attorney, San
Diego, California, for Plaintiff-Appellee.


                         OPINION

RAWLINSON, Circuit Judge:

    Javier Montes-Ruiz appeals the district court’s decision
to impose its sentence to run consecutively to an anticipated,
but not-yet-imposed, federal sentence in a separate case. The
United States (Government) counters that the appeal was
rendered moot when the second sentencing court
independently ordered that its sentence run consecutively to
the first sentence. Montes-Ruiz also argues that the district
court erred by sentencing him to a term of twenty-four
months’ incarceration for his violation of supervised release,
without crediting the time he served for a prior revocation.
We vacate and remand the first sentence imposed to ensure
compliance with the provisions of 18 U.S.C. § 3584.

I. BACKGROUND

    In 2007, Montes-Ruiz pled guilty to attempted entry after
a prior deportation in violation of 8 U.S.C. § 1326. His fast-
track plea agreement limited supervised release to “not more
than three years.” During the plea colloquy, the court
4               UNITED STATES V. MONTES-RUIZ

informed Montes-Ruiz that he would face “up to three years
of supervised release,” and that any violation of a release
condition could result in “custody for up to the full amount of
the supervised release term without any credit for time that
you may have been in jail or that – the time that you were
following the rules up to that point . . . . ” The court imposed
two special conditions of release: (1) that Montes-Ruiz not
violate federal, state, or local law, and (2) that Montes-Ruiz
not reenter the United States illegally. The district court
sentenced Montes-Ruiz to twenty-one months in custody and
three years of supervised release.

    Montes-Ruiz was released from custody and deported to
Mexico on October 17, 2008. Four months later, in February,
2009, Montes-Ruiz attempted to reenter the United States at
the San Ysidro Port of Entry, presenting false entry
documents. Two persons were concealed in the trunk of his
vehicle. The court revoked Montes-Ruiz’s supervised release
based on this reentry violation. He was sentenced to eighteen
months in custody, with eighteen months of supervised
release to follow.1 The court imposed the same special
conditions as it had imposed in 2007. Montes-Ruiz was
released from custody for this conviction and removed to
Mexico on March 6, 2012.

    Two weeks later, on March 21, 2012, Montes-Ruiz
attempted once more to enter the United States at the San
Ysidro Port of Entry, again presenting false documents.
Multiple individuals were concealed in the trunk of his
vehicle. This attempted reentry resulted in two parallel
proceedings: (1) prosecution for a substantive violation of

 1
   This sentence was ordered to run consecutively to a sentence that is not
at issue in this appeal.
             UNITED STATES V. MONTES-RUIZ                   5

8 U.S.C. § 1326 (attempted reentry after a prior deportation),
and (2) revocation of supervised release for violation of the
release condition that Montes-Ruiz refrain from committing
a crime. The illegal reentry and revocation cases proceeded
before two different district court judges in the Southern
District of California.

    Judge Burns presided over the revocation proceeding.
Based on Montes-Ruiz’s admission, Judge Burns found
Montes-Ruiz in violation of the condition that he not commit
a crime. When asked whether Montes-Ruiz had been
sentenced for the substantive violation of § 1326, Montes-
Ruiz’s counsel replied that Montes-Ruiz had pled guilty, but
had not yet been sentenced. Judge Burns expressed
reluctance to proceed with sentencing because he wanted to
“take into consideration what sentence he [Montes-Ruiz] gets
[on the § 1326 conviction] as part of the total sentence.”
Montes-Ruiz agreed to continue the sentencing to a later date.

    At the continued sentencing hearing, Montes-Ruiz
informed Judge Burns that Judge Lorenz still had not
imposed a sentence for the substantive § 1326 conviction.
Again, Judge Burns recommended postponing Montes-Ruiz’s
sentencing because the sentence in the substantive case
“implicates some factors under 3553 that I cannot consider”
and “ordinarily [would cause] me to temper the amount of
time I put into the breach of trust.” Montes-Ruiz responded
that he nevertheless wished to proceed with sentencing before
Judge Burns. When Judge Burns inquired about the
Government’s sentencing recommendation in the case
pending before Judge Lorenz, Montes-Ruiz’s counsel replied
that the Government would be recommending twenty-four
months in custody and “[he did not] expect that Judge Lorenz
will give him less than that.”
6              UNITED STATES V. MONTES-RUIZ

    In light of the severe nature of Montes-Ruiz’s breach of
trust and his repeated alien smuggling and use of false
documents, Judge Burns reasoned that a high-end Guidelines
sentence was warranted. Judge Burns imposed a sentence of
twenty-four months in custody, to be served consecutively to
the anticipated sentence to be imposed by Judge Lorenz for
the substantive offense.2 No objection was raised to the
length of the sentence. Montes-Ruiz did, however, object to
the imposition of a sentence that would run consecutively to
a “nonexisting sentence.” Judge Burns responded with his
belief that he had the authority to have the sentence run
consecutively, but noted that he would “look at everything
anew and impose an appropriate sentence” if he proved to be
mistaken.

    Montes-Ruiz subsequently appeared before Judge Lorenz
to be sentenced for the substantive violation of § 1326.
Montes-Ruiz requested an eighteen-month sentence to run
concurrently with the sentence imposed by Judge Burns. The
Government recommended a twenty-month sentence to be
served consecutively to the sentence imposed by Judge
Burns. Judge Lorenz correctly calculated a sentencing range
of eighteen to twenty-four months, and imposed a low-end
sentence of eighteen months’ imprisonment to run
consecutively to the sentence imposed by Judge Burns.

   Montes-Ruiz timely appealed the sentence imposed by
Judge Burns.



    2
   Judge Burns also imposed one year of supervised release. Based on
Montes-Ruiz’s later motion under Rule 35 of the Federal Rules of
Criminal Procedure to correct his sentence, Judge Burns “delete[d]” the
supervised release term.
              UNITED STATES V. MONTES-RUIZ                     7

II. STANDARDS OF REVIEW

    “We review . . . mootness de novo . . . . ” Shell Offshore,
Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013)
(citations omitted).

    We also review de novo the district court’s conclusion
that it possessed authority under 18 U.S.C. § 3584 to order
that its sentence run consecutively to an anticipated, but not-
yet-imposed federal sentence. See Miranda v. Anchondo,
684 F.3d 844, 849 (9th Cir. 2012) (holding that questions of
statutory construction and interpretation are reviewed de
novo).

    We review a sentence imposed on revocation of
supervised release “under the Booker reasonableness
standard.” United States v. Hammons, 558 F.3d 1100, 1103
(9th Cir. 2009) (citations omitted). If a defendant does not
object to his sentence before the district court, we apply
“plain error” review. Id. (citation omitted). “Plain error is:
(1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. (citation omitted). If these conditions are met,
relief is discretionary by this court if the error “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation omitted).

III.     DISCUSSION

       A. Mootness

    Our jurisdiction is limited to cases involving live
controversies. See Foster v. Carson, 347 F.3d 742, 745 (9th
Cir. 2003). The Government argues that there is no case or
controversy because “regardless of [our] ruling concerning
8            UNITED STATES V. MONTES-RUIZ

the district court’s authority under § 3584 to impose a
prospectively consecutive sentence, [Montes-Ruiz] will serve
an aggregate sentence of 42 months in custody.” Montes-
Ruiz counters that the appeal is not moot. If he prevails on
appeal, “his sentence is not a foregone conclusion” because
Judge Burns stated that he would “look at everything anew
and impose an appropriate sentence.”

    We have held that:

       [I]f a district court errs in sentencing, we will
       remand for resentencing on an open
       record—that is, without limitation on the
       evidence that the district court may consider.
       On remand, the district court generally should
       be free to consider any matters relevant to
       sentencing, even those that may not have been
       raised at the first sentencing hearing, as if it
       were sentencing de novo.

United States v. Matthews, 278 F.3d 880, 885–86 (9th Cir.
2002) (en banc) (citations omitted). The Government’s
mootness argument fails because if this case is remanded,
Judge Burns is free to consider the sentence imposed by
Judge Lorenz, which Judge Burns stated his inclination to do,
and he may impose a lesser sentence. See id.

    B. 18 U.S.C. § 3584

    “The statute that governs the manner in which multiple
sentences of imprisonment may be imposed is 18 U.S.C.
§ 3584 . . . ” Taylor v. Sawyer, 284 F.3d 1143, 1148 (9th Cir.
2002). That statute provides in relevant part:
             UNITED STATES V. MONTES-RUIZ                   9

       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 . . .
       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).

    We have interpreted this language to mean that “district
courts cannot order a sentence to run either concurrently or
consecutively to a nonexistent term . . . . ” Taylor, 284 F.3d
at 1148 (9th Cir. 2002) (citations omitted); see also Reynolds
v. Thomas, 603 F.3d 1144, 1149 (9th Cir. 2010) (“[A] federal
court cannot order a sentence to be served concurrently [or
consecutively] with a sentence, including a state sentence,
that has not yet been imposed.”) (citation omitted).

    The United States Supreme Court abrogated the
Taylor/Reynolds rule as it applies to an anticipated, but not-
yet-imposed state sentence in Setser v. United States, 132 S.
Ct. 1463, 1473 (2012). The defendant in Setser was
sentenced in federal court while state charges were pending
for a drug offense and a parole violation. See id. at 1466.
The federal court ordered that its sentence run consecutively
to the anticipated parole violation sentence, but concurrently
with the drug sentence. See id. The state court later ordered
10            UNITED STATES V. MONTES-RUIZ

that the sentences for the drug offense and the parole
violation be served concurrently. See id. at 1467. Affirming
the federal sentence, the Supreme Court held that federal
district courts have discretion to order that a federal sentence
run consecutively to an anticipated, but not-yet-imposed state
sentence. See id. at 1473.

       The Supreme Court explained that “someone must answer
the consecutive versus concurrent question and decide how
the state and federal sentences fit together . . . . ” Id. at 1467
(citation and internal quotation marks omitted) (emphasis in
the original). If the district court could not make the decision,
the determination would, by default, rest with the Bureau of
Prisons (BOP), which could “designate the state prison as the
place of imprisonment for the federal sentence—effectively
making the two sentences concurrent—or decline to do so—
effectively making [the two sentences] consecutive . . . . ” Id.
at 1467–68 (footnote reference omitted). The Court noted
that 18 U.S.C. § 3584(a) does not answer the
consecutive/concurrent issue raised when a state sentence is
anticipated but not yet imposed. Indeed, § 3584 “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
. . . . ” Id. at 1467 (citation, alterations, and internal quotation
marks omitted). However, that language does not address the
situation where “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.” Id.

   The Supreme Court emphasized that § 3584 must be
construed “in light of the common-law background against
which the [jurisdictional] statutes were enacted . . . ” Id. at
1468 (citation and alteration omitted). That background
              UNITED STATES V. MONTES-RUIZ                   11

encompassed the sentencing discretion “traditionally
committed” to judges, including whether sentences imposed
should “run concurrently or consecutively with respect to
other sentences . . . that have been imposed in other
proceedings, including state proceedings . . . . ” Id. (citation
omitted). The Supreme Court noted that “a large majority”
of federal courts of appeal have recognized similar
discretionary authority when “a federal judge anticipates a
state sentence that has not yet been imposed.” Id. (citations
and footnote reference omitted). The Supreme Court
“f[ou]nd nothing in the Sentencing Reform Act, or in any
other provision of law, to show that Congress foreclosed the
exercise of [federal] district courts’ sentencing discretion”
when considering whether to run a sentence concurrently or
consecutively to a state sentence that has not yet been
imposed. Id.

    The Supreme Court concluded that § 3584 is a limitation
on the common law sentencing discretion that judges have
long possessed and “examples of sentencing discretion most
frequently encountered.” Id. at 1469. Accordingly, district
courts, rather than the BOP, retain discretion to make the
necessary decision of whether a federal sentence should be
served concurrently with or consecutively to an anticipated
state sentence. See id. at 1470.

    In dicta, however, the Supreme Court implied that the
same rule would not apply to an anticipated, but not-yet-
imposed federal sentence. See id. at 1471 n.4 (“It could be
argued that § 3584(a) impliedly prohibits [a consecutive
sentencing order in advance of 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
12            UNITED STATES V. MONTES-RUIZ

state court must do when a sentence has already been
imposed. It suffices to say, however, that this question is not
before us.”) (emphasis in the original). In other words, under
§ 3584, a sentencing federal court is limited to resolving the
concurrent/consecutive issue for a sentence that has already
been imposed by another federal court, and not for a sentence
that has yet to be imposed by another federal court.
However, a federal sentencing court is not so limited
when resolving the concurrent/consecutive issue for a state
sentence that has yet to be imposed. Because § 3584 is
silent as to the circumstance involving an anticipated state
sentence, the traditional sentencing discretion governs
rather than the curtailed discretion codified in § 3584.
Accordingly, the federal sentencing court may resolve the
concurrent/consecutive issue for a state sentence whether the
sentence has already been imposed or is merely anticipated.
See id.

     Although the dicta in Setser is not binding, the analysis
comports with the plain meaning of § 3584(a) and our prior
interpretation of the statute. See Taylor, 284 F.3d at 1148;
see also Reynolds, 603 F.3d at 1149. We are also mindful of
the deference due Supreme Court dicta. See United States v.
Augustine, 712 F.3d 1290, 1295 (9th Cir. 2013). We are
persuaded by the discussion of the broad discretion
traditionally afforded sentencing judges and the cabined
limitation of that discretion codified in § 3584, such that
discretion to make the concurrent/consecutive determination
is limited only for federal sentences. See Setser, 132 S. Ct. at
1468–69. In sum, the express distinction between state and
federal sentences articulated in Setser, see id. at 1471 n.4, is
generally consistent with the Taylor/Reynolds rule as applied
to federal sentences. The Taylor/Reynolds rule is inconsistent
only in its lack of focus on the broader discretion bestowed
                UNITED STATES V. MONTES-RUIZ                          13

upon federal judges to make the concurrent/consecutive
determination when the other sentence is a state sentence
rather than a federal one. See id. at 1468–69.

     Other courts of appeal have reached a similar conclusion
regarding the proper interpretation of § 3584(a). In United
States v. Quintana-Gomez, 521 F.3d 495, 497–98 (5th Cir.
2008), the Fifth Circuit held that a district court could impose
a sentence to run consecutively to an anticipated, but not-yet-
imposed state sentence, but not to an anticipated, but not-yet-
imposed federal sentence. The Fifth Circuit concluded that
permitting one federal court “to impose a sentence
consecutive to an anticipated federal sentence would present
the second district court judge with the Hobson’s choice of
either ignoring his own judgment that a concurrent sentence
was appropriate or disobeying the order of another district
court.” Id. at 498 (citation, alteration, and internal quotation
marks omitted). The Fifth Circuit reasoned that Congress
could not have intended such a consequence, and that a
contrary reading would violate the general principle that “one
district court has no authority to instruct another district court
how, for a different offense in a different case, it must confect
its sentence . . . . ” Id. Quintana-Gomez relied heavily on the
Fourth Circuit’s reasoning in United States v. Smith, 472 F.3d
222 (4th Cir. 2006), which reached the same result.3

   In Smith, the Fourth Circuit relied on the plain language
of § 3584, explaining that “when [federal] sentences are
imposed at different times, § 3584(a) only authorizes a court


  3
   The Government notes that these cases were decided prior to Setser,
and relied on a slightly different analysis. Although the Government’s
observation is accurate so far as it goes, neither Quintana-Gomez nor
Smith conflicts with the Supreme Court’s rationale as expressed in Setser.
14            UNITED STATES V. MONTES-RUIZ

to determine whether a sentence should be consecutive or
concurrent if the defendant is already subject to an
undischarged term of imprisonment . . . . ” Id. at 226 (citation
and internal quotation marks omitted) (emphasis in the
original). The Fourth Circuit determined that the plain
language of § 3584(a) does not contemplate imposition of a
sentence to run consecutively to another sentence that does
not yet exist. See id. This reasoning is consistent with our
similarly worded conclusion in Taylor, 284 F.3d at 1148
(“Based on the plain language of the statute, . . . district
courts cannot order a sentence to run . . . consecutively to a
non-existent term. . . . ”) (citations omitted), and in Reynolds,
603 F.3d at 1149 (“[T]he court referenced in § 3584(a) refers
only to federal courts . . . . [and] a federal court cannot order
a sentence to be served concurrently [or consecutively] with
a sentence . . . that has not yet been imposed.”) (citation
omitted).

    We are persuaded by the language of the statute, the
rationale of our prior decisions, the decisions from our sister
circuits, and dicta from the Supreme Court that § 3584 does
not permit a federal sentencing court to impose a sentence to
run consecutively to another federal sentence that has yet to
be imposed. The district court’s instinct to defer imposition
of sentence was sound. However, at Montes-Ruiz’s
insistence, the judge proceeded to impose sentence for the
revocation prior to the imposition of sentence for the
substantive offense. Because we have concluded that the
sentence imposed could not permissibly run consecutively to
the anticipated sentence from Judge Lorenz, we take Judge
Burns at his word, vacate the sentence, and remand for
resentencing after Judge Burns “look[s] at everything anew.”
Judge Burns is free to consider all issues relevant to
             UNITED STATES V. MONTES-RUIZ                   15

sentencing, see Matthews, 278 F.3d at 885–86, including the
sentence subsequently imposed by Judge Lorenz.

   C. Sentence Imposed Following Revocation

    Montes-Ruiz’s violation of 8 U.S.C. § 1326 constituted a
Class C felony. See 8 U.S.C. § 1326; see also 18 U.S.C.
§ 3559. Thus, he was subject to a maximum penalty of
twenty-four months’ imprisonment for “any . . . revocation”
of supervised release. 18 U.S.C. § 3583(e)(3) (emphasis
added). “[A] district court is no longer required to reduce the
maximum term of imprisonment to be imposed upon
revocation by the aggregate length of prior revocation
imprisonment terms.” United States v. Knight, 580 F.3d 933,
937 (9th Cir. 2009).

    Montes-Ruiz does not challenge the court’s imposition of
a twenty-four-month sentence following revocation of
supervised release. Rather, he focuses on the original
sentencing judge’s failure to advise him that he could serve
more than three years in custody if he violated his conditions
of release. However, at the change of plea hearing, the
original sentencing judge advised Montes-Ruiz that he faced
“up to three years of supervised release,” and that a violation
of supervised release could result in a custodial sentence for
the full amount of the release term “without any credit for
time that you may have been in jail . . . ” Thus, Montes-Ruiz
was placed on notice that any time already served in prison
would not reduce the sentence imposed upon revocation.

    Montes-Ruiz’s failure to object to his custodial term
results in review of his sentence under the highly deferential
plain error standard of review. See Hammons, 558 F.3d at
16             UNITED STATES V. MONTES-RUIZ

1103.4 The district court’s imposition of imprisonment in
accordance with the governing statute does not constitute
plain error. See United States v. Carty, 520 F.3d 984, 996
(9th Cir. 2008) (en banc) (upholding a sentence that fell
within the properly calculated Guidelines range).

IV.     CONCLUSION

     This appeal presents a live case or controversy regarding
the district court’s authority to impose a sentence to run
consecutively to an anticipated sentence to be imposed by a
different district court judge. We conclude that 18 U.S.C.
§ 3584 prohibits a federal sentencing court from proceeding
in that manner. Although the sentence imposed was correctly
calculated, and Montes-Ruiz was properly advised of his
potential sentence, we vacate and remand for resentencing as
contemplated by the district court judge in the event his
interpretation of § 3584 was not validated on appeal.

  AFFIRMED in part, VACATED in part, and
REMANDED. Each party is to bear its costs of appeal.




 4
   Montes-Ruiz does not challenge the substantive reasonableness of his
sentence, which would be reviewed for abuse of discretion. See United
States v. Autery, 555 F.3d 864, 869-871 (9th Cir. 2009).
