Thiefault

MEMORANDUM **

Gaylon Thiefault (“Thiefault”) appeals the sentence imposed by the district court for his violation of his supervised release. We have jurisdiction under 28 U.S.C. § 1291 , and we vacate the sentence and remand for resentencing. Because the facts are known to the parties, we revisit them only as necessary.

“Congress did not vest federal courts with the authority to impose a federal sentence to run consecutive to a state sentence that has not yet been imposed.” United States v. Clayton, 927 F.2d 491, 492 (9th Cir.1991) (citing 18 U.S.C. § 3584 (a)). The district court sentenced Thiefault to 37 months’ imprisonment for his federal supervised release violation. At the time of his sentencing in district court, Thiefault was scheduled to be resentenced in Washington state court for an attempted rape conviction. The district court ordered Thiefault’s 37-month sentence to run consecutively to the yet-to-be-imposed Washington state sentence. Under Clayton , the district court erred in so doing.

The government asserts the district court’s sentencing error was harmless because, during the sentencing hearing, the district court orally stated the federal sentence should “run…