NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 20 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 12-50398

Plaintiff - Appellee, D.C. No. 3:07-cr-01164-LAB-1

v.

MEMORANDUM*

JAVIER MONTES-RUIZ,

Defendant - Appellant.

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

Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District Judge.**

Javier Montes-Ruiz (Montes) appeals the district court’s order imposing its

sentence consecutively to an anticipated, but not yet imposed, federal sentence in a

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District Court for the Eastern District of Louisiana, sitting by designation. separate case. Montes also argues that the district court erred by sentencing him to

a term of 24 months’ imprisonment for violating supervised release, without

crediting time served for a prior revocation.

1. The statute governing the imposition of multiple sentences provides:

“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. . . .” 18 U.S.C. § 3584(a) (emphasis added). 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 v. Sawyer, 284

F.3d 1143, 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 Supreme Court abrogated the Taylor and Reynolds rule as it applies to

anticipated state sentences in Setser v. United States, 132 S. Ct. 1463, 1473 (2012).

In dicta, however, the court implied that the same rule would not apply to

anticipated federal sentences. See id. at 1471 n. 4. It explained that § 3584, a

2 federal statute, could not vest authority for the necessary “concurrent vs.

consecutive” determination in a state court, but might indicate which of two federal

courts should make the determination. See id. at 1471 & n.4. The statute

contemplates that this determination be left to the federal court that imposes its

sentence last, when the other sentence is “already imposed.” See id. at 1471 n.4

(“It could be argued that § 3584(a) impliedly prohibits [issuing a prospectively

consecutive sentence to 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 state court must do

when a sentence has already been imposed.).

Although the Setster dicta is not binding, it 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. Indeed, “as long as we can apply our

prior circuit precedent without ‘running afoul’ of the intervening [higher]

authority, we must do so. . . .” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.

2012) (citation omitted). We are also mindful of the deference due Supreme Court

dicta. See United States v. Montero-Camargo, 208 F.3d 1122, 1132 n. 17 (9th Cir.

2000). In sum, the express distinction between anticipated state and federal

sentences articulated in Setser, 132 S. Ct. at 1471 n.4, is entirely consistent with

3 the Taylor / Reynolds rule as applied to federal sentences. Accordingly, the district

court erred in imposing a sentence to run consecutive to another not-yet-imposed

federal sentence. See id.

2. At sentencing, the district court indicated it would “look at everything

anew and impose an appropriate sentence” if the case was remanded. We take the

district court at its word and vacate and remand for reconsideration of the sentence

imposed. On resentencing, the district court may consider all issues relevant to

sentencing, see United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002)

(en banc), including the subsequent sentence imposed for Montes’ violation of 8

U.S.C. § 1326.

3. Montes’ 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 a 24 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). Under this precedent,

4 the district court acted within its authority when imposing a 24-month revocation

sentence, irrespective of Montes’ prior revocation imprisonment terms. See id. at

938 (“[T]he statutory maximum term of imprisonment . . . applies ‘on any such

revocation.’”) (citing 18 U.S.C. § 3583(e)(3)); see also id. (“The statutory caps

now explicitly apply to each revocation of supervised release.”) (citation omitted).

Montes was properly advised when originally sentenced that “up to three years of

supervised release” could be imposed, and that violation of his release conditions

could result in a custodial sentence for “up to the full amount of the supervised

release term without any credit for time that you may have been in jail . . .”

VACATED and REMANDED.

5