United States v. Thomas Olsem

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.

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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

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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

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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,

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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.”

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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.