Update: Can a District Court Require Its Sentence To Be Served Consecutively to an Anticipated, but Unimposed, State Sentence?

Per United States v. Donoso, 2008 WL 878562 (2d Cir. Apr. 3, 2008)

The Second Circuit widens this split, previously discussed on this blog here, by holding that a Federal court lacks this power. It also cites another opinion which was not included in the previous discussion, so the split now is between the CAs 2,4,6,7,9 (courts lack this power) (always surprising to see CAs 2,4, and 9 all on the same side of a split) and the CAs 3,8,10,11 (courts have this power).

Nonetheless, the procedural history of this appeal reveals a loophole that offers a district court a way around this lack of power in order to achieve the same result. The district court initially required its sentence to run consecutively to an as yet unimposed state sentence. A day later, the state court imposed sentence on Donoso’s guilty plea. The district court, sua sponte, invoked its power under Federal Rule of Criminal Procedure 35 (correction of clear errors), recalled the case, vacated its previous sentence, and resentenced Donoso, requiring the new sentence to run consecutive to the now-imposed state sentence. Interestingly, the Second Circuit affirms, holding that the district court's first sentence was clearly erroneous, even though the circuits have split on the question and there was no binding Second Circuit guidance. I can't seem to get the Second Circuit's webpage to work today, so apologize for the lack of a link to the opinion.