United States v. Thomas Olsem ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2356
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS R. OLSEM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 20-cr-49 — William M. Conley, Judge.
____________________
ARGUED MAY 27, 2022 — DECIDED JUNE 28, 2022
____________________
Before ST. EVE, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
ST. EVE, Circuit Judge. Appellant Thomas Olsem pled
guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). At sentencing, the district court de-
ferred to the state court on whether anticipated sentences in
Olsem’s unrelated, pending state charges would run concur-
rently with or consecutively to Olsem’s federal sentence. Ol-
sem claims this omission constitutes procedural error.
2 No. 21-2356
Because Olsem’s appeal runs headlong into our precedent in
United States v. Herman, 884 F.3d 705 (7th Cir. 2018), we affirm
the sentence of the district court.
I. Background
During the early months of Spring 2020, Wisconsin law
enforcement discovered large quantities of methampheta-
mine and firearms at appellant Thomas Olsem’s house. Fed-
eral prosecutors subsequently indicted Olsem, a convicted
felon, on one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). Olsem pled guilty and
proceeded to sentencing.
The Probation Office filed an initial presentence investiga-
tion report (“Initial PSR”) on June 1, 2021. Relevant to the pre-
sent appeal, the Initial PSR identified two pending Wisconsin
state charges against Olsem: a February 2020 arrest for do-
mestic battery and abuse of Olsem’s then-girlfriend and a De-
cember 2020 arrest for strangulation, suffocation, and domes-
tic battery of his then-girlfriend and another man. Probation
specifically noted the district court’s discretion under Setser v.
United States, 566 U.S. 231 (2012) to determine whether Ol-
sem’s federal sentence would run consecutively to or concur-
rently with any pending Wisconsin state sentence. Although
Olsem submitted objections to the Initial PSR, he did not ex-
press a position on the issue of consecutive or concurrent sen-
tencing.
In response to Olsem’s objections, Probation submitted a
revised PSR (“Revised PSR”) and a sentencing recommenda-
tion on June 17, 2021. Like the Initial PSR, both the Revised
PSR and the sentencing recommendation noted Olsem’s
pending state charges and the district court’s discretion under
No. 21-2356 3
Setser. Probation calculated Olsem’s total offense level as 27
and his criminal history category as II, which yielded a Guide-
lines range of 78 to 97 months’ imprisonment. Olsem submit-
ted a sentencing memorandum on July 7, 2021, but, again, de-
clined to touch upon the consecutive or concurrent nature of
his federal and state sentences.
The district court sentenced Olsem on July 9, 2021. After
analyzing the 18 U.S.C. § 3553(a) factors, the district court im-
posed a within-Guidelines sentence of 84 months’ imprison-
ment followed by 3 years’ supervised release. As to the rela-
tionship between Olsem’s federal sentence and his pending
state charges, the district court observed:
[T]he defendant, while in primary federal custody, has
pending charges in Polk County, Wisconsin …. Under
the United States Supreme Court’s ruling in Setser, I
have the discretion to impose a sentence that will run
concurrently with or consecutively to any other sen-
tence. I will stand silent on the pending state cases, be-
lieving that the state court judge in that case is in the
best position to decide if an incremental punishment is
appropriate in light of the sentence I impose today. If
the state court judge does not expressly impose con-
current state sentences, his term of imprisonment shall
run consecutively.
At no point during sentencing did Olsem address the district
court’s Setser discretion or express a preference for consecu-
tive or concurrent sentences.
II. Discussion
Olsem presents a single issue for appeal: whether the dis-
trict court erred by deferring to the state court whether his
4 No. 21-2356
pending state sentences would run consecutively to or con-
currently with his federal sentence. Typically, whether a sen-
tencing court acknowledged its discretion under Setser pre-
sents a question of law which we evaluate de novo. United
States v. Herman, 884 F.3d 705, 707 (7th Cir. 2018). Here, how-
ever, Olsem forfeited this basis for appeal by failing to present
it to the district court. Probation flagged Setser—and the dis-
trict court’s authority to decide whether Olsem’s federal sen-
tence would run consecutively to or concurrently with any
sentence in his pending state charges—at least two separate
times prior to sentencing. Moreover, at sentencing, the district
court itself acknowledged Setser and the relationship between
Olsem’s federal sentence and pending state charges. Despite
ample notice and opportunity to object, Olsem failed to stake
a position on consecutive or concurrent sentencing prior to
filing his appeal.
Consequently, we review Olsem’s forfeited argument for
plain error. United States v. Teague, 8 F.4th 611, 614 (7th Cir.
2021). To succeed on plain error, Olsem must identify (1) an
error; (2) that is “clear or obvious, rather than subject to rea-
sonable dispute;” which (3) affected the outcome of his sen-
tence; and (4) “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Puckett v. United
States, 556 U.S. 129, 135 (2009); see also Teague, 8 F.4th at 614–
15. The district court did not err, plainly or otherwise, in de-
clining to exercise its discretion under Setser.
In Setser, the Supreme Court held district courts have the
discretion to order federal sentences to run consecutively to
or concurrently with anticipated state sentences. Setser, 566
U.S. at 234, 244–45. A sentencing court’s failure to recognize
its discretion under Setser would constitute an error. Herman,
No. 21-2356 5
884 F.3d at 707. That is plainly not the case here, though. At
sentencing, the district court explicitly acknowledged
“[u]nder the United States Supreme Court’s ruling in Setser, I
have the discretion to impose a sentence that will run concur-
rently with or consecutively to any other sentence.”
Contrary to Olsem’s suggestion, Setser does not obligate
sentencing courts to exercise this discretion. Indeed, in dicta,
Setser directs sentencing courts to “exercise the power to im-
pose anticipatory consecutive (or concurrent) sentences intel-
ligently,” particularly where the district court has “inade-
quate information” to make a judicious decision, in which
case it “may forbear.” Setser, 566 U.S. at 242 n.6. We have twice
reiterated a sentencing court’s discretion under Setser in-
cludes the discretion not to decide the relationship between
an imposed federal and anticipated state sentence. See Her-
man, 884 F.3d at 707 (“A district court need not exercise its
discretion under Setser.”); United States v. Hoffman, 847 F.3d
878, 882–83 (7th Cir. 2017) (upholding a sentence where the
district court declined to determine whether it would run con-
currently with or consecutively to a pending state sentence).
Forbearance is especially appropriate where a district court
believes a state court will enjoy the benefit of additional, rele-
vant sentencing information, placing it in a superior position
to determine whether a consecutive or concurrent sentence is
warranted. Hoffman, 847 F.3d at 882–83; see also United States
v. Lacy, 813 F.3d 654, 658 (7th Cir. 2016). That was precisely
the situation facing the sentencing court in Olsem’s case. The
district judge expressly premised his decision to abstain from
exercising his Setser discretion because he determined “the
state court judge … is in the best position to decide if an in-
cremental punishment is appropriate in light of the sentence
I impose today.”
6 No. 21-2356
Olsem claims the sentencing court functionally precluded
his federal sentence from running concurrently with his state
sentence. The district court provided, “[i]f the state court
judge does not expressly impose concurrent state sentences,
[Olsem’s] term of imprisonment shall run consecutively.” In
Olsem’s view, even if the state court ordered concurrent sen-
tences, the Federal Bureau of Prisons would nonetheless treat
these as undischarged sentences, negatively impacting his in-
mate custody classification and qualification for home deten-
tion. Merits aside, these collateral consequences do not
amount to legal error in the district court’s exercise of its Setser
discretion. The appropriate time for Olsem to raise these con-
cerns was before the district court at sentencing, not for the
first time on appeal.
III. Conclusion
For the foregoing reasons, we AFFIRM the sentence of the
district court.