USA v. Richard Zorn, No. 10-2692 (6th Cir. 2012)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on February 14, 2012.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a1150n.06 No. 10-2692 FILED UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD ALAN ZORN, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Nov 07, 2012 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Before: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.* KETHLEDGE, Circuit Judge. This case is before us a second time. Richard Zorn pled guilty to receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At the time of his federal sentencing hearing, Zorn was in state custody for state offenses for which he had not yet been sentenced. Zorn argued during his federal sentencing hearing that his sentence should be reduced for the time he had already spent in state custody. The district court rejected his argument, stating that the court lacked authority to make Zorn s federal sentence run concurrently with a state sentence that has not been imposed. On appeal, we agreed and affirmed Zorn s sentence. See United States v. Zorn, 461 F. App x. 493, 496 (6th Cir. 2012). * The Honorable Amul Thapar, United States District Judge for the Eastern District of Kentucky, sitting by designation. No. 10-2692 United States v. Zorn Soon thereafter, the Supreme Court held that a district court does have discretion to make a federal sentence either concurrent with or consecutive to any sentence yet to be imposed in statecourt proceedings. See Setser v. United States, 132 S. Ct. 1463, 1468 (2012). Zorn then petitioned for a writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and remanded the case for further consideration in light of Setser. See Zorn v. United States, __ S. Ct. __, 2012 WL 1804685 (Oct. 1, 2012). Accordingly, we vacate the district court s judgment and remand the case with instructions for the court to exercise its discretion whether Zorn s federal sentence should run consecutive to, or concurrent with, his state-court sentence. The Supreme Court s decision in Setser does not affect our analysis with respect to the other issues in Zorn s appeal; and we hereby reinstate our decision with respect to those other issues. -2-
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