Can a federal judge order a concurrent or consecutive sentence for a defendant who has not yet been convicted of a state charge?

Sentencing is "a matter of discretion traditionally committed to the Judiciary." Setser v. United States , 566 U.S. 231, 236, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012). When multiple sentences are imposed simultaneously, or a prior sentence has already been imposed, including in state proceedings, "[j]udges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively." Id . Where a state sentence has not yet been imposed, views about judicial authority have been more dynamic.

Although courts had long held that a federal judges authority to impose a concurrent or consecutive sentence "may be exercised regardless of whether the state sentence has yet been imposed," Salley v. United States , 786 F.2d 546, 547 (2d Cir. 1986), passage of the Sentencing Reform Act generated uncertainty about this traditional view. That statute, which went into effect in 1987, explains that sentences "may run concurrently or consecutively" when "multiple terms or imprisonment are imposed ... 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." 18 U.S.C. 3584(a). Because Section 3584(a) did not address defendants who were sentenced in federal court when "the state court had not yet imposed any prison term on the then-pending state charge," we later concluded that district courts no longer had authority to order that the federal sentence run consecutively to an expected state sentence. United States v. Donoso , 521 F.3d 144, 149 (2d Cir. 2008) (per curiam).