United States v. Javier Montes-Ruiz, 2014 U.S. App. LEXIS 10255

Montes-Ruiz appeals a district court sentence that was ordered to run consecutively to an anticipated, not-yet-imposed federal sentence in a separate case.
The Government argues the appeal is moot because another district court later ordered the consecutive sentence.
Montes-Ruiz had a 2007 plea to attempted entry after a prior deportation with a three-year supervised release term and special release conditions.
He was later revoked on supervision for prior reentry offenses and sentenced to 18 months with 18 months of supervised release to follow, then removed to Mexico.
Two weeks after removal, Montes-Ruiz again attempted to reenter, leading to two parallel proceedings: a substantive §1326 conviction (sentencing later) and a revocation proceeding; Judge Burns imposed 24 months consecutive to the anticipated Lorenz sentence, and Judge Lorenz later imposed 18 months consecutive to Burns’ sentence.
The court remanded for resentencing after deciding §3584 did not authorize running to an anticipated federal sentence.]

Issue	Plaintiff's Argument	Defendant's Argument	Held
May the district court order a sentence to run consecutively to an anticipated sentence?	Montes-Ruiz argues §3584 bars consecutive to a nonexisting term.	The Government contends mootness or proper authority can justify since the later state of sentencing clarifies the issue.	No; §3584 does not permit consecutive sentencing to a nonexisting term; remand for resentencing.
Is the appeal moot given the later sentencing by another judge?	Montes-Ruiz contends the case remains live because Burns could reconsider after remand.	Government argues mootness since aggregate outcome is determined.	Not moot; remand allowed to reconsider on open record per Matthews guidance.
Was the revocation sentence properly determined under §3583(e)(3) and related notice?	Disagreement over whether time already served must credit the revocation term.	District court properly imposed maximum 24 months under §1326 revocation; notice given at plea.	Sentence within statutory maximum; no plain error based on notice at change of plea.

Taylor v. Sawyer, 284 F.3d 1143 (9th Cir. 2002) (statute 3584(a) limits running to a non-existent term (federal))
Reynolds v. Thomas, 603 F.3d 1149 (9th Cir. 2010) (federal court cannot order sentence to run with an as-yet-imposed federal sentence)
Setser v. United States, 132 S. Ct. 1463 (Supreme Court 2012) (discusses district courts’ discretion to run to anticipated state sentences; contexts differ for state vs. federal)
Quintana-Gomez, 521 F.3d 495 (5th Cir. 2008) (district courts may run to anticipated state but not anticipated federal sentence)
Smith v. United States, 472 F.3d 222 (4th Cir. 2006) (plain-language reading of §3584(a) disfavors non-existent federal term)
Matthews v. United States, 278 F.3d 880 (9th Cir. 2002) (en banc; remand open-record sentencing allowed)
Hammons v. United States, 558 F.3d 1100 (9th Cir. 2009) (Booker-based review for revocation sentences)
Carty v. United States, 520 F.3d 984 (9th Cir. 2008) (en banc; upholds statutory compliance in sentencing)