Introduction

In United States v. Alexander McKay, No. 23-14085 (11th Cir. Sept. 26, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed a district court’s refusal to revisit, eight months after judgment, the concurrency of a federal sentence with subsequently imposed Florida state sentences. The case sits at the intersection of federal sentencing finality, the scope of a district court’s authority post-judgment, and the respective roles of sentencing courts and the Bureau of Prisons (BOP) in implementing concurrency across sovereigns.

McKay asked the federal court at sentencing to make his 96‑month sentence run concurrently with anticipated state sentences. The district court declined to direct concurrency in advance, indicating it would leave the issue to the state judge. After state sentencing, McKay returned to federal court seeking an order to make the sentences concurrent nunc pro tunc. The district court denied the request as beyond its post‑judgment authority. On appeal, the Eleventh Circuit agreed.

The opinion clarifies two practical rules: (1) a defendant who wishes to challenge a federal court’s decision not to order concurrency with an anticipated state sentence must do so on direct appeal; and (2) after final judgment, a federal court lacks inherent authority to convert a sentence from consecutive to concurrent (or vice versa) absent a specific statutory or rule‑based vehicle. The panel also maps alternative avenues—BOP designation under 18 U.S.C. § 3621, compassionate release, and habeas—for addressing concurrency issues outside the sentencing hearing.

Summary of the Opinion

• The court reviews de novo whether the district court had authority to modify the sentence post‑judgment.
• Although a federal court may at sentencing decide whether a federal sentence runs concurrently or consecutively to an anticipated state sentence (Setser v. United States), McKay did not directly appeal the court’s decision to leave the issue to the state judge.
• Eight months after final judgment, the district court lacked authority to modify the sentence to make it concurrent with later‑imposed state sentences. No applicable statute or rule authorized the requested change.
• Available mechanisms to revisit an imposed term are strictly limited to those enumerated in 18 U.S.C. § 3582(c), Fed. R. Crim. P. 35, and 18 U.S.C. § 3742. None applied here.
• The opinion flags other potential paths: a request to the BOP under 18 U.S.C. § 3621, a motion for compassionate release under § 3582(c)(1)(A), or habeas (28 U.S.C. § 2255 or § 2241) as potentially viable forums depending on the claim.
• Result: The denial of McKay’s post‑judgment motion is affirmed.

Detailed Analysis

1) Procedural Posture and Factual Background

At his federal sentencing, McKay requested that his 96‑month federal sentence run concurrently with yet‑to‑be‑imposed state sentences in Indian River County, Florida. The government did not object to concurrency in principle but noted that the BOP would ultimately calculate sentence administration. The district court stated it did not object to concurrency but would leave the issue to the state judge, given differing crimes and circumstances. McKay did not appeal the judgment.

Eight months later—after the state court imposed five‑year state sentences to run concurrently with any “federal sentence being served”—McKay moved the federal court to order that his federal sentence run concurrent to the now‑imposed state terms, invoking a nunc pro tunc approach. The district court denied the motion, concluding it lacked authority to grant the requested relief post‑judgment and that the proper avenue was the BOP under 18 U.S.C. § 3621. McKay appealed from that denial (not from the original judgment).

2) Precedents and Authorities Cited

• Setser v. United States, 566 U.S. 231 (2012): The Supreme Court held that a federal sentencing court has discretion to order that a federal sentence run concurrently or consecutively to a state sentence that has not yet been imposed. Setser confirms the authority exists at the time of federal sentencing; it does not create a post‑judgment power to revisit the issue absent statutory authorization.
• 18 U.S.C. § 3584(a): Governs multiple terms of imprisonment and grants courts discretion to order concurrency or consecutivity. If multiple terms are imposed at different times, they run consecutively unless the court orders otherwise. The statute frames the court’s sentencing‑stage discretion recognized in Setser.
• United States v. Puentes, 803 F.3d 597 (11th Cir. 2015): District courts lack inherent authority to modify an imposed term of imprisonment and may act only where a statute or rule expressly permits. Puentes supplies the controlling Eleventh Circuit principle of post‑judgment restraint: no modification without explicit authorization.
• United States v. Jones, 962 F.3d 1290 (11th Cir. 2020), vacated and later reinstated in relevant part by United States v. Jackson, 58 F.4th 1331 (11th Cir. 2023): Cited for the de novo standard of review when assessing whether a district court possessed authority to modify a sentence. The panel uses this standard to evaluate the denial of McKay’s post‑judgment motion.
• 18 U.S.C. § 3582(b)–(c): Enumerates narrow avenues for modifying an imposed term (e.g., compassionate release, retroactive guideline reductions, or changes authorized by statute or Rule 35). The panel finds none apply to McKay’s request.
• Fed. R. Crim. P. 35(a): Allows correction of clear error within 14 days of sentencing. McKay’s motion—filed eight months post‑judgment—was well outside this window.
• 18 U.S.C. § 3742: Governs appeals of sentences, including those outside the Guidelines range or imposed in violation of law. The panel notes McKay did not invoke § 3742 and did not take a direct appeal from the original judgment.
• U.S.S.G. § 5G1.3(c): Addresses concurrency where a state term anticipated to result from relevant conduct is expected. McKay expressly disclaimed reliance on § 5G1.3(c), and the panel notes it does not aid him here.
• 18 U.S.C. § 3621: Vests the BOP with authority over the place of imprisonment and practical implementation of concurrency via designation. The panel flags § 3621 as a potential avenue for obtaining relief administratively from the BOP.

3) The Court’s Legal Reasoning

1. Proper route was direct appeal if the sentencing court abused discretion at sentencing. The panel begins by clarifying that if McKay believed the district court misunderstood its authority or abused its discretion by declining to order concurrency with anticipated state time at sentencing, the appropriate vehicle was a direct appeal from the judgment. He did not pursue that path.
2. No post‑judgment authority absent statute or rule. Applying Puentes and § 3582(c), the court reiterates the black‑letter rule: federal courts lack inherent power to modify an imposed term of imprisonment. Post‑judgment changes must fit within explicit statutory or rule‑based authorizations.
3. None of the narrow vehicles applied. McKay did not file a timely Rule 35(a) motion. He did not proceed under § 3582(c) (e.g., compassionate release, retroactive Guidelines), and he did not argue applicability of § 3742. As a result, the district court correctly concluded it lacked authority to grant nunc pro tunc concurrency eight months after judgment.
4. Alternative, non‑sentencing avenues recognized. Consistent with Setser, the panel observes that relief might be sought via (a) compassionate release under § 3582(c)(1)(A), which the Supreme Court flagged as an equitable mechanism to address concurrency problems; (b) administrative relief from the BOP under § 3621 (e.g., designation of a state facility for service of the federal sentence); and (c) habeas routes—§ 2241 for sentence execution issues after BOP exhaustion, or § 2255 if a sentence is unlawful for other reasons.

4) How the Precedents Shaped the Outcome

Setser controlled the initial framing: federal judges may, at the time of federal sentencing, decide concurrency with anticipated state sentences. But Setser does not authorize later judicial alteration of an imposed federal term. Puentes provided the decisive post‑judgment constraint: no modification without statutory authorization. Section 3582(c) and Rule 35 are exhaustive in the sense relevant here, and neither allowed the relief McKay sought eight months after judgment. Jones/Jackson supplied the standard of review—de novo—for the authority question. Together, these authorities compelled affirmance.

5) Impact and Practice Implications

Though unpublished and therefore non‑precedential in the Eleventh Circuit, the decision is a clear, practical reaffirmation of sentencing finality principles and the limited toolkit for altering concurrency after judgment. Key impacts include:

• For defense counsel: Preserve concurrency issues at sentencing and, if the court declines or appears to misapprehend its Setser authority, file a direct appeal. After judgment, your client’s options are sharply constrained and primarily administrative (BOP) or equitable (compassionate release).
• For sentencing judges: When concurrency with anticipated state sentences is requested, make a clear record: either exercise Setser discretion or explain reasons for declining. A clear record minimizes later disputes about perceived misunderstandings of authority.
• For prosecutors: Be precise about roles: the court decides concurrency at sentencing; the BOP implements the sentence, including through place‑of‑imprisonment designations under § 3621. Avoid statements that could be misconstrued as suggesting the court lacks Setser authority.
• For state‑federal coordination: A state judge’s order that a state sentence run “concurrently with any federal sentence being served” does not bind the federal sentence and, if the federal sentence has not commenced, may have limited effect unless the BOP designates concurrency via § 3621. Early inter‑sovereign coordination is crucial.
• For post‑judgment strategy: If concurrency was not ordered at sentencing, consider:
  • Submitting a § 3621(b) designation request to the BOP, supported by the state judgment and the federal J&C, seeking a designation (sometimes retroactively) of the state facility for service of the federal sentence;
  • Exhausting BOP administrative remedies and then pursuing a § 2241 petition in the district of confinement if the BOP denies relief;
  • Evaluating § 3582(c)(1)(A) compassionate release to address inequities created by inter‑sovereign timing or to account for time served that cannot be credited;
  • Reserving § 2255 for claims that the sentence is unlawful, as opposed to mere implementation issues.

6) Complex Concepts Simplified

• Concurrent vs. consecutive sentences: Concurrent means the sentences run at the same time; consecutive means they run one after the other. Under § 3584(a), if multiple terms are imposed at different times, they default to consecutive unless the court says otherwise.
• Anticipated state sentence (Setser authority): A federal judge may decide, at federal sentencing, how the federal term relates to a state sentence that has not yet been imposed.
• Primary jurisdiction: The sovereign that first arrests a person typically retains primary custody. A defendant normally does not begin serving the other sovereign’s sentence until transferred or designated, which can complicate concurrency unless coordinated.
• Finality of sentence and post‑judgment limits: After a federal sentence is imposed, courts cannot change it unless a statute or rule explicitly allows. Common vehicles are Rule 35 (14‑day window for clear error), § 3582(c)(1)(A) (compassionate release), and § 3582(c)(2) (retroactive guideline reductions).
• BOP’s role under § 3621: The BOP controls the place of imprisonment and can designate a state facility as the place where a federal sentence is served, which may effectively align sentences concurrently. Relief is typically sought via BOP administrative procedures before any § 2241 litigation.
• U.S.S.G. § 5G1.3(c): Encourages concurrency where a forthcoming state sentence is for conduct relevant to the federal offense. It did not apply here, and McKay did not rely on it.
• Direct appeal vs. collateral review: Objections to the sentencing court’s discretionary decisions (like Setser concurrency calls) should be raised on direct appeal. Collateral review (e.g., § 2255) is for unlawful sentences; § 2241 is for execution‑of‑sentence issues after BOP exhaustion.

7) Limits and Unanswered Questions

• Unpublished disposition: This decision is “Not for Publication” and, under Eleventh Circuit practice, is not binding precedent. Its reasoning is nonetheless consistent with established law and will be persuasive in similar cases.
• Scope of sentencing‑stage discretion not revisited on the merits: The panel did not decide whether the district court at sentencing misunderstood its Setser authority; it found the issue procedurally barred because McKay did not file a direct appeal.
• Implementation details left to BOP: While the opinion identifies § 3621 as a path, it does not detail standards the BOP applies when considering designation requests or how it weighs state court concurrency orders and the federal court’s silence.

Conclusion

United States v. McKay underscores a simple but consequential rule: after final judgment, a federal court cannot convert a sentence to run concurrently with a later‑imposed state term absent an explicit statutory or rule‑based authorization. Setser empowers federal judges to make concurrency decisions prospectively at sentencing, but that power does not carry over to post‑judgment revisions. The proper moment to challenge a sentencing‑stage concurrency decision is on direct appeal.

Practically, when concurrency issues arise after sentencing—especially in multi‑sovereign cases—defendants must typically look to the BOP’s designation authority under § 3621, consider equitable relief such as compassionate release under § 3582(c)(1)(A), and, if necessary and after exhaustion, pursue a § 2241 petition in the district of confinement. Although unpublished, McKay is a clear reminder in the Eleventh Circuit that finality and statutory limits govern sentence modifications, and that careful preservation at sentencing (and on appeal) is indispensable when state and federal sentences intertwine.

Case Snapshot

• Court: U.S. Court of Appeals for the Eleventh Circuit
• Date: September 26, 2025
• Panel: Branch, Kidd, and Black, Circuit Judges (per curiam)
• Disposition: Affirmed
• Key Authorities: Setser v. United States; 18 U.S.C. §§ 3582, 3584, 3621, 3742; Fed. R. Crim. P. 35; United States v. Puentes; United States v. Jones/Jackson
• Publication Status: Not for Publication (non‑precedential)