United States v. Kayarath

── United States v. Kayarath ── Court: Court of Appeals for the Ninth Circuit Date: June 01, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2026 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Nos. 24-5990, 24-5992 Plaintiff - Appellee, D.C. Nos. 2:14-cr-353-GMN-GWF 2:15-cr-305-GMN-GWF v. SALEUMKIAT KAYARATH, MEMORANDUM* Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Argued and Submitted December 2, 2025 San Francisco, California Before: R. NELSON, COLLINS, and VANDYKE, Circuit Judges. Defendant Saleumkiat Kayarath appeals the sentences that the district court simultaneously imposed upon revoking his supervised release in two separate criminal cases that were both pending in that court. At the time that the district court imposed those sentences, Kayarath was awaiting sentencing in state court after pleading guilty to charges arising from the same conduct that led to the revocation of his supervised release. On appeal, Kayarath’s sole contention is that the district court should not have ordered that his federal sentence, which he would * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. serve first, should run “consecutive to the anticipated sentence” in his state case. We have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s interpretation of federal law de novo, Conestoga Servs. Corp. v. Executive Risk Indem., Inc., 312 F.3d 976, 981 (9th Cir. 2002), and its sentencing decisions for an abuse of discretion, see United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), we affirm. In Setser v. United States, 566 U.S. 231 (2012), the Supreme Court recognized that, in the absence of any applicable statutory limitation, “[j]udges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.” Id. at 236. The Court also endorsed the view of the “large majority of the federal appellate courts” that “have recognized a similar authority . . . where a federal judge anticipates a state sentence that has not yet been imposed.” Id.; see also United States v. Montes-Ruiz, 745 F.3d 1286, 1291 (9th Cir. 2014) (stating that, under Setser, the “common law sentencing discretion that judges have long possessed” includes the power to decide “whether a federal sentence should be served concurrently with or consecutively to an anticipated state sentence”). As the district court correctly recognized, no statute and no provision of the Sentencing Guidelines dictated how the district court should exercise that 2 discretion here.1 Consequently, the district court retained its discretion, as recognized in Setser and Montes-Ruiz, to direct that Kayarath’s federal sentence should be consecutive to the anticipated state sentence. Contrary to what Kayarath suggests, nothing in Setser or Montes-Ruiz suggests that the common-law sentencing discretion possessed by federal judges on this score turns on whether, at the time that discretion is exercised, the defendant is in state or federal custody. Indeed, Setser makes this point clear when it discusses the practical consequences, in our federal system, of which sentence is served first. Because, “[i]