I’ve had clients facing both state and federal criminal charges simultaneously. They are facing severe drug or firearm charges in Missouri state court, while a parallel federal indictment forces them to confront the federal system. One of the most urgent and reasonable concerns this client—and their family—will have is how their potential prison terms will interact. Will they serve their sentences at the same time (concurrently), or will they be stacked back-to-back (consecutively), effectively doubling their time behind bars?

In Missouri state courts, the law provides a structural safeguard regarding timing. A Missouri state judge generally only has the statutory authority to run a sentence consecutively (stacked back-to-back) if the other sentence has already been formally imposed. If the other case’s sentence has not been imposed, the state court cannot proactively stack a new sentence on top of it.

However, clients and defense attorneys must realize that this is strictly not the case in federal court. Federal district judges wield much broader anticipatory power, creating a dangerous trap for the unprepared.

The Federal Rule: Setser v. U.S.

The binding rule governing this dynamic comes from the landmark Supreme Court decision, Setser v. United States (2012). The case explicitly established how federal judicial discretion operates when dealing with unfinished state court proceedings. Specifically, unlike state court judges, the federal judge can sentence someone “consecutively” to a state sentence that has not been imposed. See case summary below.

Impact:

Because of this, it is important to for public defenders to communicate and work closely with federal public defenders.

If someone is indigent and has a public defender in state court, they will almost certainly have a public defender in federal court.

Timing of cases can be significant. Timing of sentencing assessments also matter. It is critical that all defense attorneys have as much information as possible so the client can make the most wise decision.

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Setser v. U.S. Case Summary

The petitioner, Monroe Ace Setser, was on state probation in Texas when he was arrested by local police for a new methamphetamine offense. This triggered a state motion to revoke his probation alongside a new state drug indictment. Because the transaction involved a threshold weight, federal prosecutors stepped in and indicted Setser for possession with intent to distribute 50 grams or more of methamphetamine.

Setser pleaded guilty to the federal charges first. At his federal sentencing hearing, the compliance guidelines dictated a lengthy term , but the real battle was over how that term would interact with the pending state matters that had not yet gone to sentencing. Over Setser’s objections , the federal district judge ordered a 151-month sentence structured as a “split” anticipatory sentence:

• It was ordered to run consecutively to any state sentence later imposed for the probation violation.
• It was ordered to run concurrently with any state sentence later imposed for the new drug charge.

While Setser’s federal appeal was underway, the state court finally sentenced him, giving him 5 years for the probation violation and 10 years for the drug charge, ordering those two state terms to run concurrently with each other. This created a logistical paradox: the federal Bureau of Prisons (BOP) could not mathematically make the federal sentence consecutive to one state term while keeping it concurrent with the other when the state terms were unified. Setser argued that federal judges lack the authority to dictate terms relative to an anticipated, non-existent state sentence, and that the resulting logistical knot made his sentence legally unreasonable.

The Supreme Court, in an opinion written by Justice Antonin Scalia, rejected Setser’s arguments and affirmed the sentence. The Court held that federal district courts possess inherent, common-law discretion to order that a federal sentence run consecutively to an anticipated state sentence that has not yet been imposed. The Court clarified that while the Sentencing Reform Act of 1984 outlines clear rules for sentences handed down at the same time or to defendants already serving time, it does not strip federal judges of their traditional authority to issue anticipatory orders for pending state matters.

For your clients facing parallel timelines, Setser means the federal judge gets to dictate the chess pieces upfront, and a subsequent lenient or concurrent order from a Missouri state judge will not automatically override or invalidate the federal court’s back-to-back structuring.