APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, Chief U.S. District Judge.
Raymond E. Gillespie for appellant.
Tiffany V. Monrose, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Lynch, Circuit Judge, Souter,[*] Associate Justice, and Stahl, Circuit Judge.
LYNCH, Circuit Judge.
In this case of first impression in this circuit, we face a question the Supreme Court expressly left open in Setser v. United States, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012): whether a federal sentence may be ordered to be consecutive to another federal sentence that is anticipated but not yet imposed. We conclude that it may not. We reverse and remand for resentencing.
On October 4, 2012, Heriberto Almonte-Reyes pleaded guilty in the District of Puerto Rico to conspiracy to import a hundred grams or more of heroin, in violation of 21 U.S.C. § § 952(a), 960(a)(1), (b)(2)(A), 963. In the plea agreement, the parties jointly recommended a sentence between 102 and 120 months of imprisonment. The parties also recognized that Almonte-Reyes had pending criminal charges in the Northern District of Georgia, and they jointly expressed their " intent, desire, and recommendation that the sentence in this case and the sentence in [the Northern District of Georgia case] run concurrently." 
On July 1, 2013, the district court in Puerto Rico sentenced Almonte-Reyes to 120 months of imprisonment, " to be served consecutively to any term to be imposed in a pending case." (emphasis added). Almonte-Reyes did not object to the consecutive nature of the sentence at the time of sentencing.
On July 5, 2013, Almonte-Reyes filed a motion for reconsideration seeking to eliminate the part of the sentence ordering his term of imprisonment to be consecutive to the anticipated Northern District of Georgia sentence. He argued that such a consecutive sentence went beyond the district court's sentencing authority under 18 U.S.C. § 3584(a). The district court denied the motion. This appeal followed.
On December 19, 2013, Almonte-Reyes pleaded guilty in the Northern District of Georgia to one count of conspiracy to commit money laundering. Guilty Plea and Plea Agreement, United States v. Almonte-Reyes, No. 09-cr-00025 (N.D.Ga. Dec. 19, 2013), ECF No. 500. On October 17, 2014, after the filing of the briefs in this appeal, the Northern District of Georgia sentenced Almonte-Reyes to 87 months of imprisonment to be served concurrently with the sentence at issue here. Transcript of Sentencing Hearing, Almonte-Reyes,
No. 09-cr-00025 (N.D.Ga. Oct. 17, 2014), ECF No. 568.
The government had argued in its initial briefing that the imposition of the later federal sentence would moot the case. Doubtful, we ordered the parties to make supplemental filings on the issue of mootness. In their supplemental filings, Almonte-Reyes took the position ...