United States v. Fidel Andrade-Hernandez ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4511
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FIDEL ANDRADE-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00446-CCE-1)
Submitted: January 3, 2014 Decided: January 15, 2014
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Kyle D. Pousson, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fidel Andrade-Hernandez appeals the sentence of twelve
months and one day of imprisonment imposed by the district court
after he pled guilty to illegally re-entering the United States
following removal, in violation of 8 U.S.C. § 1326(a) (2012).
On appeal, Andrade-Hernandez argues that the district court
abused its discretion by declining to order his federal sentence
to run concurrently with an anticipated state sentence on an
unrelated state charge pending at the time of his federal
sentencing. We affirm.
Under 18 U.S.C. § 3584 (2012), a district court
retains the discretion to run a federal sentence concurrently
with or consecutively to an anticipated state sentence. See
Setser v. United States, 132 S. Ct. 1463, 1468 (2012). In
deciding whether to run a sentence concurrently or consecutively
to another sentence, the court must consider the factors in 18
U.S.C. § 3553(a) (2012). 18 U.S.C. § 3584(b). Here, the
district court stated only that it would not recommend that
Andrade-Hernandez’s federal sentence run concurrently with the
anticipated state sentence. The district court, after
concluding that it lacked information about the pending state
charge, found that the state court was in a better position to
determine whether the sentences (if indeed there is a conviction
and sentence on the state charge) should run concurrently or
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consecutively. The district court’s approach is consistent with
Setser. See 132 S. Ct. at 1472 n.6 (“[A] district court should
exercise the power to impose anticipatory consecutive (or
concurrent) sentences intelligently. In some situations, a
district court may have inadequate information and may forbear
. . . .”). Because the district court made its determination
after considering Andrade-Hernandez’s arguments and fully
understood the scope of its discretion, we conclude that the
district court did not abuse that discretion when it declined to
order Andrade-Hernandez’s federal sentence to run concurrently
with his anticipated state sentence.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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