U.S. v. Herman

Dist. Ct. erred in sentencing defendant to 120-month term of incarceration on firearm charge, where Dist. Ct. denied defendant’s request to have his sentence be served concurrently with yet-to-be determined state-court sentence, since Dist. Ct. based said denial on its belief that it could not require that defendant’s federal sentence be run concurrently with his yet-to-be determined state sentence. Under Setser, 566 U.S. 231, Dist. Ct. is empowered to order federal sentence to run concurrently with yet-to-be determined state sentence, and thus, remand was required for new sentencing hearing, since: (1) Dist. Ct. failed to acknowledge that it had discretion to grant defendant’s request for concurrent treatment; and (2) Dist. Ct. initially indicated that it did not object to defendant’s request for concurrent treatment of his federal and state sentence.