Lead Opinion
delivered the opinion of the Court.
We consider whether a district court, in sentencing a defendant for a federal offense, has authority to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.
I — {
When officers of the Lubbock Police Department arrested petitioner Monroe Setser for possessing methamphetamine, he was already serving a 5-year term of probation imposed
Before the federal sentencing hearing, a probation officer calculated the applicable Sentencing Commission Guidelines range to be 121 to 151 months’ imprisonment. Citing precedent from the United States Court of Appeals for the Fifth Circuit, United States v. Brown,
While Setser’s appeal was pending, the state court sentenced him to a prison term of 5 years for probation violation and 10 years on the new drug charge. It ordered that these sentences be served concurrently. Setser then made before the Court of Appeals, in addition to the argument that the District Court had no authority to order a consecutive sentence, the argument that his federal sentence was unreasonable because it was impossible to implement in light of the concurrent state sentences.
The Court of Appeals for the Fifth Circuit affirmed.
⅜ — I HH
Before proceeding further, it is important to be clear about what is at issue. Setser does not contend that his federal sentence must run concurrently with both state sentences imposed after his federal sentencing hearing. He acknowledges that someone must answer “the consecutive versus concurrent question,” Brief for Petitioner 27, and decide how the state and federal sentences will fit together. The issue here is who will make that decision, which in turn determines when that decision is made. One possible answer, and the one the Fifth Circuit gave, is that the decision belongs to the Federal District Court at the federal sentencing hearing.
The concurrent-vs.-consecutive decision has been addressed by § 212(a) of the Sentencing Reform Act of 1984,18 U. S. C. § 3584, reproduced in full as Appendix A, infra. The first subsection of that provision, which says when concurrent and consecutive sentences may be imposed, and specifies which of those dispositions will be assumed in absence of indication by the sentencing judge, does not cover the situation here. It 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.” § 3584(a). Here 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.
Setser, supported by the Government, argues that, because § 3584(a) does not cover this situation, the District Court lacked authority to act as it did; and that the concurrent-vs.-consecutive decision is therefore to be made by the Bureau of Prisons at any time after the federal sentence has been imposed. The. Bureau of Prisons is said to derive this authority from 18 U. S. C. § 3621(b) (2006 ed. and Supp. IV), reproduced in full as Appendix B, infra.
On its face, this provision says nothing about concurrent or consecutive sentences, but the Government explains its position as follows: Section 3621(b) gives the Bureau the authority to order that a prisoner serve his federal sentence in any suitable prison facility “whether maintained by the Federal Government or otherwise.” The Bureau may therefore order that a prisoner serve his federal sentence in a state prison. Thus, when a person subject to a federal sentence is serving a state sentence, the Bureau may designate the state prison as the place of imprisonment for the
It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes . . . were enacted,” New Orleans Public Service, Inc. v. Council of City of New Orleans,
Setser’s main contention is that § 3584(a) has this effect. But that provision cannot sustain the weight that Setser asks it to bear. In essence, he reads the
Setser’s response is that, read in context, the sentence speaks only to district courts. Under the circumstances at issue here, he says, the federal and state sentences still might run either concurrently or consecutively, but just not at the discretion of the District Court. That is an odd parsing of the text, which makes no distinction between the district court and the Bureau of Prisons. The placement of §3584 does indeed suggest that it is directed at district courts — but that is likely because Congress contemplated that only district courts would have the authority to make the concurrent-vs.-consecutive decision, not because Congress meant to leave the Bureau unfettered. Indeed, the Bureau already follows the other directives in § 3584(a). See Brief for United States 35. For example, if the district court imposes multiple terms of imprisonment at the same time, but fails to address the concurrent-vs.-consecutive issue, the terms “run concurrently,” § 3584(a), and the Bureau is not free to use its “place of imprisonment” authority to achieve a different result.
The Latin maxim on which Setser relies — expressio unius est exclusio alterius — might have application here if the provision in question were a conferral of authority on district courts. Giving sentencing authority in only specified circumstances could be said to imply that it is withheld in other circumstances. Section 3584, however, is framed not as a conferral of authority but as a limitation of authority that already exists (and a specification of what will be assumed when the exercise of that authority is ambiguous). It reads not “District courts shall have authority to impose multiple terms of imprisonment on a defendant at the same time, etc.” but rather “If multiple terms of imprisonment are imposed on a defendant at the same time, [etc.]” — quite clearly assuming that such authority already exists. (Emphasis added.) The mere acknowledgment of the existence of certain preexisting authority (and' regulation of that authority) in no way implies a repeal of other pre-existing authority. And that is especially true when there is an obvious reason for selecting the instances of pre-existing authority that are addressed — to wit, that they are the examples of sentencing discretion most frequently encountered.
Moreover, expressio unius est exclusio alterius is a double-edged sword. Setser thinks it suggests that, because § 3584(a) recognizes judicial discretion in scenario A and scenario B, there is no such discretion in scenario C. But the same maxim
HH l-H
None of the other objections to this approach raised by Setser and the Government require a different result.
Our decision today follows the interpretive rule they invoke, that we must “give effect... to every clause and word” of the Act. United States v. Menasche,
Setser and the Government both suggest that, because § 3584(b) directs courts to consider the sentencing factors in § 3553(a) in making these decisions, and because some of those factors will be difficult to apply with respect to anticipated sentences, the Act cannot be read to allow judicial discretion in these circumstances. 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 by the Bureau of Prisons; 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. To be sure, the Bureau of Prisons, if it waits to decide the matter until after the state court has imposed its sentence, will know for sure what sentences it is dealing with. But the Bureau is not charged with applying § 3553(a). The factors that guide the agency’s “place of imprisonment” decision do include “the nature and circumstances of the offense” and “the history and characteristics of the prisoner,” § 3621(b)(2), (b)(3) (2006 ed.) — factors that are, to be sure, relevant to sentencing but also relevant to selection of the place of confinement; but they also include factors that make little, if any, sense in the sentencing context, such as “the resources of the facility contemplated”
The final objection is that principles of federalism and good policy do not allow a district court to make the concurrent-vs.-consecutive decision when it does not have before it all of the information about the anticipated state sentence. As for principles of federalism, it seems to us they cut in precisely the opposite direction. In our American system of' dual sovereignty, each sovereign — whether the Federal Government or a State — is responsible for “the administration of [its own] criminal justice syste[m].” Ice,
As for good policy: The basic claim of Setser, the Government, and the dissent is that when it comes to sentencing, later is always better because the decisionmaker has more information. See, e. g., post, at 252 (“[A] sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence”). That is undoubtedly true, but when that desideratum is applied to the statutory structure before us here it is overwhelmed by text, by our tradition of judicial sentencing,
“upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that... extraordinary and compelling reasons warrant such a reduction [or that the defendant meets other criteria for relief].”
1 — 1 <1
Setser argues that, even if the District Court’s consecutive order was consistent with § 3584(a), it made his sentence impossible to implement and therefore unreasonable under the Act, see United States v. Booker,
The difficulty arises not from the sentence, but from the state court’s decision to make both state sentences concurrent. Which of the District Court’s dispositions should prevail: that his federal sentence run consecutively to the state sentence on the parole revocation charge, or that his federal sentence run concurrently with the state sentence on the new drug charge? If the federal sentence is added to the state sentence it will not be concurrent with the new drug charge, and if it is merged in the state sentence it will not be consecutive to the parole revocation charge. This is indeed a problem, but not, we think, one that shows the District Court’s sentence to be unlawful. The reasonableness standard we apply in reviewing federal sentences asks whether the district court abused its discretion. See Gall v. United States,
This is where the Bureau of Prisons comes in — which ultimately has to determine how long the District Court’s sentence authorizes it to continue Setser’s confinement. Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment that the federal sentence run concurrently with the state sentence for the new drug charges. If the Bureau initially declines to do so, he may raise his claim through the Bureau’s Administrative Remedy Program. See 28 CFR § 542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus. See 28 U. S. C. §2241. We express no view on whether those proceedings would be successful.
* * *
Because it was within the District Court’s discretion to order that Setser’s sentence run consecutively to his anticipated state sentence in the probation revocation proceeding; and because the state court’s subsequent decision to make that sentence concurrent with its other sentence does not establish that the District Court abused its discretion by imposing an unreasonable sentence; we affirm the judgment of the Court of Appeals. ■
It is so ordered.
APPENDIXES
A
18U.S. C. §3584
“Multiple sentences of imprisonment
“(a) Imposition of Concurrent or Consecutive. Terms. — 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.
“(b) Factors To Be Considered in Imposing Concurrent or Consecutive Terms. — The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).
“(c) Treatment of Multiple Sentence as an Aggregate. — Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.”
B
18 U. S. C. § 3621(b) (2006 ed. and Supp. IV)
“Place of Imprisonment. — The Bureau of Prisons shall’ designate the place of the
“(1) the resources of the facility contemplated;
“(2) the nature and circumstances of the offense;
“(3) the history and characteristics of the prisoner;
“(4) any statement by the court that imposed the sentence—
“(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
“(B) recommending a type of penal or correctional facility as appropriate; and
“(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
“In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the Bureau under this section to determine or change the place of imprisonment of that person.”
Notes
The Bureau of Prisons sometimes makes this designation while the prisoner is in state custody and sometimes makes a nunc pro tunc designation once the prisoner enters federal custody.
The dissent is incorrect to say, post, at 253-254 (opinion of Breyer, J.), that only the Second Circuit, in Salley, held to that effect. So did the Seventh Circuit in Kanton and the Tenth Circuit in Anderson. The dissent says that Anderson addressed only the question “whether a federal sentence runs from the date of its imposition or from the date of entry into federal custody,” post, at 253. That is true enough (and it is true of Kanton as well); but answering that question in a manner that upheld the consecutive federal sentence (i. e., it runs from the date of entry into federal custody) necessarily upheld the sentencing court’s authority to impose the consecutive federal sentence. In fact, Anderson confronted and specifically rejected the defendant’s argument that “ ‘no court has the authority to impose a sentence consecutive to something that does not exist,’ ”
The only contrary federal appellate decision rendered before the Sentencing Reform Act took effect relied upon 18 U. S. C. § 4082 (1982 ed.) (the predecessor of § 3621) and § 3568 (1982 ed.) (repealed by 98 Stat. 1987), which provided that a federal sentence “shall commence to rim from the date on which such person is received” into federal custody. See United States v. Eastman,
The Government contends that the Bureau applies the default rules in § 3584(a) “[a]s a matter of discretion” but is not “ ‘bound’ ” by that subsection. Reply Brief for United States 15, n. 5. We think it implausible that the effectiveness of those rules — of § 3584(a)’s prescription, for example, that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently” — depends upon the “discretion” of the Bureau.
Setser notes that the text of § 3584(a) does not distinguish between state and federal sentences. If a district court can enter a consecutive sentencing order in advance of an anticipated state sentence, he asks, what is to stop it from issuing such an order in advance of an anticipated federal sentence? It could be argued that § 3584(a) impliedly prohibits such an order 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. It suffices to say, however, that this question is not before us.
To support its view that Congress authorized the Bureau to make concurrent-vs.-consecutive decisions, the dissent relies on the fact that the Executive long had what is effectively sentencing authority in its ability to grant or deny parole. That is a particularly curious power for the dissent to rely upon, inasmuch as most of the dissent discusses (in great detail) the Sentencing Reform Act, whose principal objective was to eliminate the Executive’s parole power. Curiouser still is the dissent’s invocation of the Guidelines system, which “tell[s] the sentencing judge how, through the use of partially concurrent and partially consecutive sentences, to build a total sentence that meets the Guidelines’ requirements.” Post, at 249-250. These “instructions,” post, at 249 do not cover yet-to-be-imposed sentences, the dissent says, because “the sentencing judge normally does not yet know enough about the behavior that underlies (or will underlie)” such a sentence. Post, at 250. That explains, perhaps, why the Guidelines’ “instructions” to judges do not cover them. But why do not the Guidelines “instruct” the Bureau of Prisons how to conduct its concurrent/consecutive sentencing? If the reason is (as we suspect) that the Sentencing Commission does not have, or does not believe it has, authority to “instruct” the Bureau of Prisons, the dissent’s entire argument based upon what it calls “the purposes and the mechanics of the SRA’s sentencing system,” post, at 252, falls apart. Yet-to-be-imposed sentences are not within the system at all, and we are simply left with the question whether judges or the Bureau of Prisons is responsible for them. For the reasons we have given, we think it is judges.
Of course, a, district court should exercise the power to 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.
We have never had occasion to decide whether reasonableness review under Booker applies to a court’s decision that a federal sentence should run concurrently with or consecutively to another sentence. The Courts of Appeals, however, generally seem to agree that such review applies. See, e. g., United States v. Padilla,
Dissenting Opinion
with whom Justice Kennedy and Justice Ginsburg join, dissenting.
The Sentencing Reform Act of 1984 seeks to reform federal sentencing practices by creating a Federal Sentencing Commission instructed to develop and to promulgate Federal Sentencing Guidelines. The provision of the Act here at issue concerns “ Multiple sentences.” See 18 U. S. C. § 8584. It brings into focus a difficult Guidelines-related problem: How should a federal judge sentence an offender where the offender has been convicted of having violated several different statutes? The convictions may have taken place all at the same time. Or, some convictions might have taken place at an earlier time, the offender may already have been sentenced to prison, and indeed the offender may still be serving that sentence. The federal judge must decide the extent to which a sentence attached to one conviction should be served concurrently or consecutively with sentences attached to other convictions.
An understanding of the nature of this general problem and the Sentencing Commission’s statutorily foreseen solutions will help the reader understand why, in my view, the better legal answer to the question before us is that a federal sentencing judge does not have the power to order that a “federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 233.
1 — {
The Sentencing Reform Act (SRA or Act) has two overall objectives. See Barber v. Thomas,
To implement these reforms, the SRA instructs the Commission to write Guidelines that inevitably move in the direction of increased “real offense” senténcing. See USSG § 1A2, at 1.1 (describing how statute, e. g., by insisting upon categories of offense behavior and offender characteristics, leads to this result). In principle, real offense sentencing would impose the same sentence upon different offenders who engage in the same real conduct irrespective of the statutes under which they are charged. Real offense sentencing, for example, would mean that two individuals, both of whom rob a bank and injure a teller, would receive the same sentence even if the Government charges one of them under a bank robbery statute and the other under an assault statute. See, e. g., USSG App. A (listing federal statutory offenses, while keying them to specific individual Guidelines that determine sentence based upon likely actual behavior). In the event, the Guidelines move the sentencing system in this direction while simultaneously recognizing that other factors require considerable modification of the real offense principle. See §lA4(a) (“Real Offense vs. Charge Offense Sentencing”).
Nonetheless the “real offense” goal influenced the Act’s, and the Commission’s, objectives in respect to the sentencing of an offender with multiple convictions. Insofar as several convictions arise out of the same course of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were all part of a single crime and sentence accordingly. But, insofar as the crimes underlying the convictions arise out of different courses of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were not part of a single crime and should see that the ultimate sentence reflects that fact.
To achieve these objectives is easier said than done. For one thing, it requires a definition of what counts as the same course of behavior. The Guidelines set forth that definition in § 1B1.3, at 1.17 (“Relevant Conduct”). For another thing, statutes and Guidelines that set forth related instructions must take into account the fact that sentencing-related circumstances can prove highly complex. To take a fairly simple example, suppose that a defendant is convicted of both robbery and impersonating a federal official, that he has engaged in a single course of behavior, but that neither the robbery nor the impersonation Guidelines take account of the other. Instructions about concurrent/consecutive sentences must give the judge an idea about what to do in such a case. They must also take account of the fact that a maximum penalty contained in a statute will trump a greater penalty contained in a Guideline. And they must tell the judge (faced with, multiple convictions) what to do where that is so.
With this background it becomes easier to understand the statutory provisions before us. They reflect the fact that Congress expected sentencing judges, when faced with a defendant convicted of multiple crimes, to construct a sentence that would, at least to a degree, reflect the defendant’s real underlying behavior. Where two convictions reflect in whole or in part the same behavior, the overall sentences should reflect that fact, say, by running concurrently.
Accordingly, the statute says that “[mjultiple 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.” 18 U. S. C. § 3584(a). And that statement reflects the fact that often (but not always) multiple convictions after a single trial will reflect a single course of behavior (different aspects of which violate different criminal statutes). The statute also says that “[m]ul tiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Ibid. This statement reflects the fact that several convictions imposed after different trials are more likely to reflect unrelated behaviors. In the first instance that the statute addresses, concurrent sentences are more likely to be appropriate; in the second, consecutive sentences are more likely to be appropriate. But that is not always so. Thus the statutory provisions assure sentencing judges that they retain the power to reach a different conclusion.
At this point, I would ask the question that this case poses. Why does the statute say nothing about a sentencing judge imposing a sentence that might run consecutively with a sentence that a (typically different) judge has not yet imposed? The answer is this: Because the sentencing judge normally does not yet know enough about the behavior that underlies (or will underlie) a sentence that has not yet been imposed. Normally the sentencing judge does not know, for example, (1) what that sentence will be, (2) whether the behavior underlying that later sentence constitutes part of the same course of behavior that underlies the present sentence or, instead, is totally separate from the behavior underlying the present sentence, or (3) is partly the same and partly different. Even if the judge has- an idea about what will happen, he does not know precisely what will happen; and precision in this matter is important.
In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing-proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to ensure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences.
Of course, the Court is correct when it says that eventually the sentences will run (either wholly or in part) concurrently or consecutively. And someone must decide how they will run. Ante, at 234. But the Court is not correct when it says that this someone should be the first federal sentencing judge. Rather, the Executive and Judicial Branches have devised a
This exercise of authority by the Executive Branch is not constitutionally surprising. After all, “federal sentencing” has “never . . . been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.” Mistretta,
II
Given the purposes and the mechanics of the SRA’s sentencing system, just described, the better reading of the “multiple sentences” provision is a reading that denies a sentencing judge the authority to “order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 233. For one thing, nothing in the statute explicitly grants the judge that authority. The text refers to other circumstances, those that involve earlier or contemporaneous (multiple-count) convictions, while it does not refer to later imposed sentences.
For another, exercise of any such authority would more likely hinder than advance the basic objectives of the SR A. As I have explained, supra, at 247-250, a sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second conviction rests .upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well.
Further, .1 can find no significant tradition (pre-Guideline or post-Guideline) of federal judges imposing a sentence that runs consecutively with a sentence not yet imposed. The Court refers to four Courts of Appeals cases for the proposition that. “traditionally” a judge possessed this authority. Ante, at 236. The opinions in
In fact the Senate Committee Report accompanying the SRA provides strong evidence that there was no such tradition. S. Rep. No. 98-225 (1983). That Report thoroughly surveyed prior law. It says that the SRA is a “comprehensive statement of the Federal law of sentencing,” that it “describes in detail the kinds of sentences that may be imposed,” and that §3584 “provides the rules for determining the length of a term of imprisonment for a person convicted of more than one offense.” Id., at 50, 125-126. It further states that “[e]xisting law permits the imposition of either concurrent or consecutive sentences,” which practice it then describes as limited to.two scenarios: “[t]erms of imprisonment imposed at the same time,” and those “imposed on a person already serving a prison term.” Id., at 126. It says the same when describing how § 3584 is supposed to work. In neither place does it refer to a practice of, or any authority for, imposing a prison term that runs consecutively with a future term not yet imposed.
In addition, a grant of such authority risks at least occasional incoherence. For example, the statute, after setting forth the court’s authority to impose a sentence of imprisonment that runs either concurrently or consecutively with other terms imposed in the same or in earlier proceedings, creates an exception that says: “except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt.” 18 U. S. C. § 3584(a) (2006 ed.). Now suppose the Court were right, and a sentencing judge had the authority to run a present term consecutively with a not-yet-imposed future term. Would it not be important to apply this same “attempt” exception in such instances as well? Indeed, the exception is phrased in categorical terms, and the legislative history in no way indicates that the exception applies only occasionally. See S. Rep. No. 98-225, at 126 (“[C]onsecutive terms of imprisonment may not, contrary to current law, be imposed for [attempt] and for an offense that was the sole objective of the attempt” (emphasis added)). Yet it is difficult, if not impossible, to read the statute’s language as broadening the exception beyond the statutorily listed scenarios.
Or, consider, for example, an offender tried for arguably related crimes in two different federal courts at two different times. The Court’s reading would not only
Finally, as I said above, swpra, at 250-252, a more practical solution to potential problems presented by a future sentencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal and state sentences and is well situated to take into account both the intent of the first sentencing judge and the specific facts developed in the second sentencing. The relevant statute provides that “[t]he Bureau may designate any available penal or correctional facility . . . , whether maintained by the Federal Government or otherwise . . . .” 18 U. S. C. § 3621(b). And in reliance on this authority, the Bureau has concluded that it has the power to “designate] ... a state institution for concurrent service of a federal sentence.” Program Statement No. 5160.05, at 1. The Program Statement further provides that exercise of this power will be guided by, in part, “the intent of the federal sentencing court” in addition to “any other pertinent information regarding the inmate.” Id., at 4.
The Court’s only criticism of this system is that it is less “natural” to read the statute “as giving the Bureau of Prisons what amounts to sentencing authority.” Ante, at 239. But what is unnatural about giving the Bureau that authority? The sentencing process has long involved cooperation among the three branches of Government. Mistretta,
⅜ ⅜ ⅜
Because the Court does not ask why the “multiple sentencing” provision leaves out the authority at issue — concerning the not-yet-imposed sentence — it reaches what I believe is the wrong result. Consequently, with respect, I dissent.