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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15251
________________________
D.C. Docket No. 2:17-cr-00508-WKW-GMB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER JASON HENRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(June 21, 2021)
Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and ANTOON,*
District Judge. 1
GRANT, Circuit Judge:
*
Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting
by designation.
1
The United States petitioned for rehearing or rehearing en banc after issuance of our opinion of
August 7, 2020. We grant the motion for panel rehearing, vacate our earlier opinion, and
substitute in its place the following opinion.
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Christopher Henry was sentenced to 108 months in prison after pleading
guilty to a charge of felon in possession of a firearm. He now challenges that
sentence as unreasonable, arguing that the district court erred by imposing a term
of imprisonment that was simply too long under the circumstances and by failing
to adjust his sentence under United States Sentencing Guidelines Manual
§ 5G1.3(b)(1) for time served on an undischarged term of state imprisonment.
Henry contends that § 5G1.3(b)(1), unlike other guidelines, is fully binding on
district courts even after the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005).
Both of Henry’s challenges fail. The Sentencing Guidelines, though they are
the starting point for all federal sentencing decisions, are no longer mandatory in
whole, or even in part. The district court needed to consider § 5G1.3(b)(1) when
determining Henry’s initial Guidelines recommendation, but after that was free to
exercise its discretion to impose the sentence that seemed most appropriate. And
the choice the court made here was reasonable under the circumstances. Because
any error in how the district court considered § 5G1.3(b)(1) was harmless and
because the final sentence it chose was substantively reasonable, we affirm.
I.
In one of a string of robberies, Henry broke into a business and stole eight
firearms. Police arrested him a few days later. When questioned, he admitted to
breaking into the shop and stealing the guns. He also told the investigators that
they could enter his residence; once inside, they found many stolen items from his
recent crimes, including one of the shotguns taken from the shop.
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Henry pleaded guilty to burglary in state court and was sentenced in early
2017 to 20 years’ imprisonment. A few months later, a federal grand jury indicted
Henry on one count, felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Henry was of course still serving his 20-year state sentence, so the
United States obtained a writ of habeas corpus ad prosequendum from the district
court directing the county jail to deliver him for prosecution on the pending federal
charge. Henry entered federal custody and pleaded guilty to the felon-in-
possession charge.
A probation officer prepared a presentence investigation report using the
United States Sentencing Guidelines. The report assigned Henry a total offense
level of 27 and a criminal history category of VI—the highest possible category—
resulting in an advisory guideline range of 130 to 162 months’ imprisonment. But
because the maximum term of imprisonment for a violation of § 922(g)(1) is 120
months, that maximum became the advisory guideline “range” and was as high as
Henry’s sentence could go. See 18 U.S.C. § 924(a); U.S. Sentencing Guidelines
§ 5G1.1(a) (Nov. 2016).
At sentencing, Henry requested that his federal sentence run concurrently
with his state sentence, and that the court adjust his federal term downward for the
time he had already served on the state sentence. That second request was based
on § 5G1.3(b)(1), which states that if a defendant is serving an undischarged term
of imprisonment resulting from “another offense that is relevant conduct to the
instant offense of conviction,” the sentencing court “shall adjust the sentence for
any period of imprisonment already served on the undischarged term of
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imprisonment if the court determines that such period of imprisonment will not be
credited to the federal sentence by the Bureau of Prisons.” U.S.S.G. § 5G1.3(b)(1).
In plain English, the guideline instructs that if the defendant is still serving time in
state prison for conduct that was also part of the federal offense, the time already
served on that state charge should be credited against the federal sentence. At the
time of sentencing, Henry had already served 24 months on his state sentence for
burglary, so he argued that the 120-month advisory range—the statutory
maximum—should be reduced by 24 months under § 5G1.3(b)(1) to yield a
Guidelines recommendation of 96 months’ imprisonment. He also asked the court
to vary downward from that recommendation and sentence him to 60 months’
imprisonment in light of the 18 U.S.C. § 3553(a) factors.
The government agreed that the federal and state sentences should run
concurrently but argued that the 24-month adjustment under § 5G1.3(b)(1) should
be made to the initial 130- to 162-month advisory guideline range that was
calculated before the court recognized the 120-month statutory maximum. That
procedure would have yielded a revised range of 106 to 138 months. The
government then urged the court to impose a 120-month sentence—even after the
§ 5G1.3(b)(1) reduction—because Henry had repeatedly carried a firearm while
committing burglaries.
The district court chose a third path. It imposed a sentence of 108 months to
run concurrently with the remainder of Henry’s state sentence. The court
explained that it had “evaluated the reasonableness of a sentence through the lens
of Section 3553” and that this sentence was “sufficient, but not greater than
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necessary, to comply with the statutory purposes of sentencing.” After Henry
asked whether that sentence included a 24-month reduction under § 5G1.3(b)(1)
from the adjusted range proposed by the government, the court indicated that it did
not. In explaining that decision, the court gave more detail:
I’m giving the sentence under all the circumstances. To the extent that
I didn’t give him credit for the relevant conduct from the 120 down,
that would be an upward variance. But I am also giving him credit for
a concurrent sentence, which I don’t give many of. So 108 is my
judgment of a fair sentence under all the circumstances in this case.
Henry objected, but without success. He now appeals his sentence.
II.
We review an interpretation of the Guidelines de novo. United States v.
Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019). And we review all sentences under
a deferential abuse-of-discretion standard. United States v. Johnson, 803 F.3d 610,
618 (11th Cir. 2015).
III.
Henry argues that § 5G1.3(b)(1) is binding on sentencing courts whenever
its requirements are met—even after the Supreme Court’s holding in United States
v. Booker that the Guidelines are advisory. See 543 U.S. 220 (2005). To square
his argument with Booker, Henry contends that its holding only covers guidelines
that go into the calculation of the “sentencing range” but does not extend to
provisions like § 5G1.3(b) that affect what “kind of sentence” a court might
impose. We disagree. It does not matter whether § 5G1.3(b) affects the kind of
sentence or the guideline range; Booker told us that all guidelines are advisory.
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And because the district court considered the proposed applications of
§ 5G1.3(b)(1) urged by both the government and Henry and stated that it would
have imposed the same sentence even if Henry’s proposed approach applied, any
error by the district court regarding the § 5G1.3(b)(1) adjustment was harmless.
A.
Before the United States Sentencing Guidelines were implemented, district
courts had almost total discretion to impose a sentence within the statutory
minimum and maximum for a given crime. That led to what many saw as
unwarranted disparities between sentences. In response to that concern and others,
Congress passed the Sentencing Reform Act of 1984, which established the United
States Sentencing Commission and directed that body to create the Guidelines. See
Pub. L. No. 98-473, 98 Stat. 1987. The new law cut off much of the district courts’
discretion over sentencing because the Act required courts to “impose a sentence
of the kind, and within the range” established by the Guidelines. 18 U.S.C.
§ 3553(b)(1). Simply put, the Guidelines were mandatory: they imposed “binding
requirements on all sentencing judges.” Booker, 543 U.S. at 233.
That system, however, did not last. Because the Guidelines required judges
to make factual findings to determine the appropriate sentence, defendants could
be sentenced to higher prison terms based on information not admitted by them or
found by a jury. But those determinations were inconsistent with the Supreme
Court’s earlier holding that any fact besides a prior conviction “which is necessary
to support a sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant or proved to
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a jury beyond a reasonable doubt.” Id. at 244 (citing Apprendi v. New Jersey, 530
U.S. 466 (2000)). That meant trouble for the Guidelines.
The Supreme Court held in Booker that this mandatory system was
inconsistent with the Sixth Amendment. Id. To bring the Guidelines in line with
that amendment, the Court held that the entirety of 18 U.S.C. § 3553(b)(1)—the
provision that required courts to “impose a sentence of the kind, and within the
range” directed by the Guidelines—must be “severed and excised” from the Act.
Id. at 245. The Court explained that the Act, as passed, created a mandatory
Guidelines system, but that in light of its Sixth Amendment holding that choice
was not open to Congress. Id. at 265. The Guidelines could stay, but by severing
the “provision of the federal sentencing statute that makes the Guidelines
mandatory,” the Court established that they are “effectively advisory.” Id. at 245.
And in so doing, Booker restored much of the district courts’ traditional sentencing
discretion.
Still, the Guidelines are not irrelevant. After Booker, a sentencing court
must “consult those Guidelines and take them into account when sentencing”—
what we have described as establishing the “procedural reasonableness” of a
sentence—but the Guidelines are no longer the final consideration. Id. at 264; see
also United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). Instead, a
district court now has the freedom to “tailor the sentence in light of other statutory
concerns,” and a judge can choose an outside-Guidelines sentence so long as the
judge has considered, and the sentence reflects, the factors outlined in § 3553(a):
the nature and circumstances of the crime, the need for the sentence imposed, the
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kinds of sentences available, and the like. Booker, 543 U.S. at 245. So while
many guidelines use the terms “must” or “shall,” that language simply requires
courts to properly consider them when deciding the advisory Guidelines
recommendation—it does not render them mandatory when imposing the final
sentence. See Sarras, 575 F.3d at 1209 n.22.
The Supreme Court’s later cases confirm the same point. In Kimbrough v.
United States, the Court explained that “the Guidelines, formerly mandatory, now
serve as one factor among several courts must consider in determining an
appropriate sentence.” 552 U.S. 85, 90 (2007). It held that sentencing courts are
not bound to enforce a provision of the Guidelines related to cocaine charges,
confirming that “the cocaine Guidelines, like all other Guidelines, are advisory
only.” Id. at 91 (emphasis added); see also id. at 113 (Scalia, J., concurring)
(“[T]he district court is free to make its own reasonable application of the
§ 3553(a) factors, and to reject (after due consideration) the advice of the
Guidelines.”). And in Gall v. United States, when the Court was tasked with
reviewing the reasonableness of a sentence that fell far below the advisory
guideline range, the Court reemphasized that Booker had “invalidated” the
statutory provision “which made the Sentencing Guidelines mandatory.” 552 U.S.
38, 46 (2007). As a result of that decision, “the Guidelines are now advisory.” Id.
Our Circuit has not left this principle in doubt. As we announced shortly
after Booker, “all guidelines decisions are now advisory.” United States v.
Magluta, 418 F.3d 1166, 1185 (11th Cir. 2005). We have regularly corrected
litigants who “fail[] to appreciate the advisory nature of every provision of the
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guidelines.” Spencer v. United States, 773 F.3d 1132, 1141 (11th Cir. 2014) (en
banc) (emphasis added). And when we rejected the idea that “all misapplications
of the advisory guidelines” necessarily result in a “complete miscarriage of
justice,” we grounded our conclusion in the fact that “the guidelines are advisory.”
Id. at 1140. In one of our many opinions affirming an outside-Guidelines sentence
as reasonable, we again emphasized their advisory nature: “the guidelines and their
application provide advice about sentencing; they do not control it.” United States
v. Rosales-Bruno, 789 F.3d 1249, 1258 (11th Cir. 2015). Any notion that some
guidelines may remain binding after Booker is foreclosed by the Supreme Court
and is out of step with this Circuit’s precedent too.
Even so, Henry suggests that Booker’s remedial holding only applies to
guidelines that affect the “range” of the sentence, not those that affect the “kind of
sentence.”2 But Booker’s holding unequivocally applies to both. The Supreme
Court held that § 3553(b)(1) must be severed in its entirety—and that provision
states that courts must “impose a sentence of the kind, and within the range” set by
the Guidelines. Booker, 543 U.S. at 234 (emphasis added). This language does
not leave room to carve out an exception for “kind-of-sentence” guidelines;
§ 3553(b)(1) explicitly included those guidelines too. So just as both types of
guidelines were mandatory before, both are advisory now.
In fact, one of the Supreme Court’s earliest post-Booker cases shows that the
remedial holding applies to guidelines like § 5G1.3 that affect the kind of sentence
2
Henry points to sentencing provisions related to probation, imprisonment, supervision
conditions, fines, and restitution as examples of guidelines that determine the kind of sentence
and not the sentencing range.
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imposed. In Gall, the Court considered the applicability of § 5B1.1, a sentencing
provision that authorizes probation in certain cases. See 552 U.S. at 58–59 & n.11;
U.S.S.G. § 5B1.1. Like § 5G1.3, that provision comes into play at step eight of the
Guidelines process, after the sentencing court has calculated the “guideline range
in Part A of Chapter Five” corresponding to the defendant’s Guidelines offense
level and criminal history category. U.S.S.G. § 1B1.1(a)(7)–(8). The titles for
both provisions address the imposition of a sentence. Compare id. § 5G1.3
(“Imposition of a Sentence on a Defendant Subject to an Undischarged Term of
Imprisonment or Anticipated State Term of Imprisonment”), with id. § 5B1.1
(“Imposition of a Term of Probation”). And just like § 5G1.3(b), § 5B1.1(b)
provides instructions about when a type of sentence “may not be imposed.”
Compare id. § 5G1.3(b), with id. § 5B1.1(b) (emphasis added). The texts of the
two provisions offer no reason to differentiate between them—so any rule that
might render one binding as a “kind-of-sentence” guideline would have the same
effect on the other.
Consistent with what we would expect—after all, Booker explicitly applies
to guidelines affecting both the “kind of sentence” and the “range”—the Supreme
Court affirmed in Gall that § 5B1.1 is advisory. The Court explained that the
district court’s chosen sentence of probation was not allowed under the
Guidelines—“the Guidelines state that probation alone is not an appropriate
sentence for comparable offenses”—and that it would need to be set aside “[i]f the
Guidelines were still mandatory.” Gall, 552 U.S. at 58–59. No matter. After
Booker, “the Guidelines are only one of the factors to consider when imposing” a
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sentence, so the district court was not required to follow the directive of § 5B1.1.
Id. at 59. And because the reviewing court did not give due deference to the
district court’s “reasoned and reasonable decision that the § 3553(a) factors, on the
whole, justified the sentence,” it was wrong to overturn Gall’s sentence of
probation—even though it was not consistent with § 5B1.1. Id. at 59–60.
So under Gall, not only are the Guidelines advisory—it is error to treat them
as mandatory. Id. at 51. Determining an accurate Guidelines recommendation is
“the starting point and the initial benchmark.” Id. at 49. That determination is
required, so skipping it is procedural error. But if a sentencing court goes the other
direction—and treats particular guidelines as mandatory instead of advisory—that
too is error. Id. at 51. Given all that, holding that a district court must treat
§ 5G1.3(b)(1) as binding would require district courts to commit Booker error.3
Henry thinks otherwise. He insists that, whatever the Supreme Court may
have said in Booker, this Circuit has said that the adjustment in § 5G1.3(b)(1) is
mandatory when its requirements are met. See United States v. Knight, 562 F.3d
1314 (11th Cir. 2009). But United States v. Knight cannot bear the weight he
places on it—it merely established that a court must properly consider § 5G1.3(b)
when deciding what the Guidelines recommend. There, the district court wrongly
concluded that the defendant’s situation did not meet the requirements of
3
The dissent, in arguing that some guidelines remain mandatory, says that because “the
Guidelines have the force and effect of law, sentencing courts may refuse to apply them only if
they conflict with a higher source of law.” Dissenting Op. at 33. That is true. But it is also true
that the Supreme Court has already said that treating the Guidelines as mandatory is inconsistent
with the Constitution. So district courts must treat the Guidelines as the starting point, but they
now have the discretion to vary when imposing a sentence. Gall, 552 U.S. at 49.
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§ 5G1.3(b)(1). Id. at 1329. But by the time of appeal, the government agreed with
Knight that the guideline’s requirements were met, and this Court accepted the
noncontroversial concession of the United States that the sentencing court should
have included an adjustment under § 5G1.3(b)(1) when calculating the Guidelines
recommendation. Id.
Despite what Henry contends, that was not a holding that § 5G1.3(b)(1)
somehow escaped the Court’s holding in Booker. For starters, no party addressed
Booker at all, much less argued that its holding did not apply to § 5G1.3(b)(1).
Nor did this Court say so. All we did was fix an error in one court’s application of
§ 5G1.3(b). But it would be remarkable to cut a gap of the sort Henry suggests
without any analysis at all. In fact, on remand the district court got it right; it
adjusted Knight’s Guidelines recommendation as directed by § 5G1.3(b)(1), and
then considered arguments from both parties about what the appropriate final
sentence should be in light of the § 3553(a) factors. See United States v. Knight,
385 F. App’x 936 (11th Cir. 2010) (affirming Knight’s revised sentence). 4
The Sentencing Commission now explicitly directs courts to follow that
same sequence. In response to Booker, the Commission amended the Guidelines
and added a new provision, § 1B1.1(c), which instructs that after first determining
4
Like Henry, the dissent contends that Knight and other cases from this Circuit already
established some guidelines as mandatory. Dissenting Op. at 23–27. We find that puzzling. As
we just explained, Knight was an ordinary procedural reasonableness case. The same goes for
United States v. Moran, which simply described a provision of the Guidelines as mandatory in
the sense that it was a required procedural step in determining an advisory Guidelines
recommendation. See 573 F.3d 1132, 1138 (11th Cir. 2009). And as for United States v. Pon,
that case incorrectly described our holding in United States v. Sarras and is also in conflict with
an earlier case addressing the same provision. See Pon, 963 F.3d 1207, 1241 (11th Cir. 2020);
see also Magluta, 418 F.3d at 1185.
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“the kinds of sentence and the guideline range” (§ 1B1.1(a)) and then considering
departures, policy statements, and commentary (§ 1B1.1(b)), district judges “shall
then consider the applicable factors in 18 U.S.C. § 3553(a).” U.S.S.G. App. C,
Amend. 741 (effective Nov. 1, 2010); id. § 1B1.1(c). This only confirms our
conclusion: a court must first determine the guideline range and kind of sentence—
which includes any adjustment under § 5G1.3(b)—before turning to the applicable
factors in § 3553(a) and considering whether to vary from the advisory sentence.
The dissent, like Henry, sees things differently. Booker, in its view, held
invalid the provision “that made the sentencing range produced by the Guidelines
binding on the sentencing court” but did not touch “kind-of-sentence” guidelines at
all. Dissenting Op. at 30–31. In fact, the dissent says that if a guideline affects the
kind of sentence, Booker “provides no basis to disregard the mandatory language
of the guideline.” Dissenting Op. at 34. But as we have already explained,
Booker’s remedial holding explicitly addressed both “range” and “kind-of-
sentence” guidelines—meaning that just as both were mandatory before, both are
advisory now. See 543 U.S. at 244–45; 18 U.S.C. § 3553(b)(1). We do not see
how the dissent can contend that Booker “said nothing” about guidelines
determining the kind of sentence. Dissenting Op. at 34.
Past its attempt to set apart kind-of-sentence guidelines, the dissent does not
really attempt to align its two-tiered proposal with the Supreme Court’s holdings in
Gall and Kimbrough. Nor could it. Its reading of Booker is irreconcilable with
how the Court has treated sentencing requirements in the years since that opinion.
For example, the dissent says that “before and after Booker, provisions in the
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Guidelines that neither enhance a defendant’s sentence based on judicial
factfinding nor mandate the imposition of a sentence within the guideline range are
binding on sentencing courts.” Dissenting Op. at 31. But the Booker Court itself
rejected that kind of “Sixth Amendment violation only” sentencing structure. See
543 U.S. at 268 (“[W]e must apply today’s holdings—both the Sixth Amendment
holding and our remedial interpretation of the Sentencing Act—to all cases on
direct review.”); see also Lester v. United States, 921 F.3d 1306, 1314 (11th Cir.
2019) (W. Pryor, J., respecting the denial of rehearing en banc) (“[A]s a matter of
severability, the Court held that the Guidelines could not be applied as mandatory
in any cases, even when their mandatory application would not violate the Sixth
Amendment, because the resulting system would be structurally unsound and
contrary to the intent of Congress.”). Booker and the decisions that follow
foreclose the possibility of a dual system where some types of guidelines are
mandatory while others are not. See, e.g., Gall, 552 U.S. at 59–60.
Nor does the dissent align its approach with the sentencing sequence set out
in the Guidelines. Though it acknowledges the plain language of the § 1B1.1(c)
amendment—which says that the § 3553(a) factors are considered last—the dissent
seems to say that the prescribed order does not apply here, either because an
example in the commentary to § 5G1.3(b) “specifically direct[s]” courts to apply
§ 5G1.3(b) after the § 3553(a) factors, or because the word “imposition” in
§ 5G1.3(b) demands that the provision be applied out of order. Dissenting Op. at
39–43.
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We disagree. First, only subsection (a) of § 1B1.1 allows for exceptions
within its order. See U.S.S.G. § 1B1.1(a) (“The court shall determine the kinds of
sentence and the guideline range as set forth in the guidelines . . . by applying the
provisions of this manual in the following order, except as specifically directed.”).
Though § 1B1.1 used to say that its specified order applied except as “specifically
directed,” after Booker the Commission divided § 1B1.1 into three subsections and
moved the “specifically directed” language into subsection (a). See id. App. C,
Amend. 741 (effective Nov. 1, 2010); see also id. § 1B1.1(b)–(c) (the sentencing
court “shall then consider” the factors in section (b) and “shall then consider the
applicable factors in 18 U.S.C. § 3553(a) taken as a whole” (emphasis added)). So
§ 1B1.1 only allows for exceptions to the order of the eight-step sequence set out
in subsection (a) for determining the advisory Guidelines sentence—it does not
allow for moving a guideline from (a) to (c), much less to moving it after (c),
which was added to formalize the Guidelines’ compliance with Booker. See id.
App. C, Amend. 741 (effective Nov. 1, 2010). The Guidelines, in other words, do
not provide for any possible “exceptions” to the (a), then (b), then (c) order
directed in § 1B1.1. The § 3553(a) factors always come last.
But even if exceptions to that order were allowed, we fail to see one that
applies here. Although the dissent says it has “explained” why courts are
specifically directed to apply § 5G1.3(b) after the § 3553(a) factors, it is unclear
which provision of the Guidelines the dissent believes constitutes a specific
direction. Dissenting Op. at 41. Our own review reveals none. For one thing,
nothing in the text of § 5G1.3 or any other guideline “specifically direct[s]” courts
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to apply § 5G1.3(b) after the § 3553(a) factors. Nor does the commentary to
§ 5G1.3(b) cited by the dissent. Of course, commentary in the Guidelines is
authoritative. See Stinson v. United States, 508 U.S. 36, 38 (1993). But
commentary that describes itself as an “example in which subsection (b) applies”
cannot fairly be considered a specific direction to apply § 5G1.3(b) after the
§ 3553(a) factors. U.S.S.G. § 5G1.3 comment. n.2(D).
Moreover, the commentary the dissent cites does not even address whether a
court must consider the § 3553(a) factors before adjusting a sentence under
§ 5G1.3(b). That omission makes sense—this part of the commentary was added
before both Booker and § 1B1.1(c). See id. App. C, Amend. 660 (effective Nov. 1,
2003). So if there is any inconsistency between that commentary and the
Sentencing Commission’s post-Booker instructions for applying the Guidelines,
the commentary is conflicted out—whether by Booker or by the new guideline.
The dissent also argues that the fact that the guideline uses the word
“imposition” means courts must apply it after the § 3553(a) factors. But that’s just
not so. To begin, other guidelines that deal with the “imposition” of a sentence all
come into play before the § 3553(a) factors. See id. § 1B1.1(a)(8); see also, e.g.,
id. § 5B1.1 (“Imposition of a Term of Probation”); id. § 5D1.1 (“Imposition of a
Term of Supervised Release”). And the Supreme Court has already confirmed that
a court considers the § 3553(a) factors after applying a guideline that provides for
the “imposition” of a sentence. See Gall, 522 U.S. at 59–60. We must follow its
lead here. Applying § 5G1.3(b)(1) at the final step of § 1B1.1(a)—after a court has
determined the Guidelines sentence but before it considers whether to vary from
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that sentence in light of the § 3553(a) factors—is consistent with § 5G1.3(b) and
the post-Booker amendments to § 1B1.1.5 We thus do not know what to make of
the dissent’s contention that this opinion “implicitly repeal[s]” § 5G1.3(b); we are
merely applying § 5G1.3(b) in its proper place. Dissenting Op. at 43.
Recognizing that its reading creates a conflict with the order laid out in
§ 1B1.1, the dissent attempts to solve that problem by saying that § 5G1.3(b), the
more specific provision, must control over the general order provided in § 1B1.1.6
Dissenting Op. at 41–42. That “solution,” though, presents yet another problem.
The general/specific canon only applies when “the attribution of no permissible
meaning can eliminate the conflict.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 183 (2012). And we have already
explained how § 5G1.3(b) is compatible with the sequence prescribed in § 1B1.1.
Here, it takes more work to read in a conflict than to read it out.
One final note. In United States v. Gonzalez-Murillo, we held that
§ 5G1.3(b)(1) is part of the guideline range. See 852 F.3d 1329, 1336 (11th Cir.
2017). That point is irrelevant to our opinion—after all, Booker says that both
“kind-of-sentence” and “range” guidelines are advisory, so it does not matter for
our purposes which way we categorize § 5G1.3(b)(1). But that characterization is
critical to the dissent, which proposes a sentencing framework that distinguishes
5
The dissent, for what it is worth, agrees that § 1B1.1(a) is the “part of the guideline that would
ordinarily dictate when to consider section 5G1.3.” Dissenting Op. at 40.
6
The dissent states elsewhere that “section 5G1.3 and its commentary are not irreconcilable with
section 1B1.1(c).” Dissenting Op. at 43. There, we agree—nothing in § 5G1.3 is irreconcilable
with applying the guideline at the last step of § 1B1.1(a).
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between guidelines relating to the range and guidelines relating to the kind of
sentence.
Surprisingly enough, though it correctly states that Gonzalez-Murillo
involved resentencing, the dissent relies heavily on another resentencing case, this
one out of circuit, to support its view that § 5G1.3(b)(1) does not affect the
guideline range. See Dissenting Op. at 28, 34, 36 (citing United States v. Helm,
891 F.3d 740, 743 (8th Cir. 2018)). But Gonzalez-Murillo—not United States v.
Helm—is binding in this Circuit. And both cases involved sentence-modification
proceedings, so any differences that make Gonzalez-Murillo less applicable here
would also apply to Helm.7 See Helm, 891 F.3d at 741. In any event, the Eighth
Circuit itself has confirmed that § 5G1.3(b)(1) is only mandatory in the
resentencing context. See United States v. Carter, 652 F.3d 894, 896–97 (8th Cir.
2011). Like every other circuit court to have considered the question, that court
held that sentencing courts have the discretion to decline § 5G1.3’s advice. See id.;
see also United States v. Parks, 698 F.3d 1, 8 (1st Cir. 2012); United States v.
Ojeda, 946 F.3d 622, 628 & n.4 (2d Cir. 2020); United States v. Lynn, 912 F.3d
212, 217 (4th Cir. 2019); United States v. Ochoa, 977 F.3d 354, 356 (5th Cir.
2020); United States v. Lane, 509 F.3d 771, 775–76 (6th Cir. 2007); United States
v. Nania, 724 F.3d 824, 830 (7th Cir. 2013); United States v. Armstead, 552 F.3d
7
Both Gonzalez-Murillo and Helm say that an adjustment under § 5G1.3(b)(1) is mandatory
during resentencing. That causes no trouble, however. The Supreme Court has explained why a
provision might be mandatory on resentencing even where it is advisory in the first instance;
sentence-modification proceedings under 18 U.S.C. § 3582(c) “do not implicate the interests
identified in Booker.” Dillon v. United States, 560 U.S. 817, 828 (2010).
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769, 784 (9th Cir. 2008); United States v. Kieffer, 681 F.3d 1143, 1167 (10th Cir.
2012); United States v. Brown, 892 F.3d 385, 399 (D.C. Cir. 2018).
In short, any suggestion that we treat an adjustment under § 5G1.3(b) as
mandatory post-Booker is foreclosed by Supreme Court and Eleventh Circuit
precedent. And no case from our Circuit requires the framework that Henry and
the dissent ask us to create today. Courts must consider the advice of
§ 5G1.3(b)(1), of course, but they have no obligation to impose a sentence
consistent with that section’s directive.
B.
Though the district court here was not bound to follow the Commission’s
advice in § 5G1.3(b)(1), it was required to properly consider the Guidelines’
advisory recommendation. The parties dispute how that section should have been
applied. But it is not necessary for this Court to decide this issue or remand for
new proceedings because even if there was a Guidelines error, it did not affect
Henry’s sentence. See United States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir.
2006). This is not a case where the “record is silent” as to the district court’s
consideration of the Guidelines. Molina-Martinez v. United States, 136 S. Ct.
1338, 1347 (2016). Quite the opposite—the district court told Henry exactly what
it was doing. Because the district court stated on the record that it would have
imposed the same sentence either way, that is “all we need to know” to hold that
any potential error was harmless. Keene, 470 F.3d at 1349.
At Henry’s sentencing hearing, the court did not expressly resolve the
parties’ competing arguments for how to implement § 5G1.3(b)(1). But it did say
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that even under Henry’s proposed method, a sentence of 108 months was the
court’s “judgment of a fair sentence under all the circumstances in this case.” And
if 24 months should have been deducted from the initial advisory range to reach
the correct Guidelines recommendation—the government’s view—the court would
have still chosen an “upward variance” to end up at 108 months. The court’s
statements show that it both considered and understood the effect that accepting
§ 5G1.3(b)(1)’s advice would have had on Henry’s Guidelines sentence. And
because the district court would have imposed the same sentence even under
Henry’s approach, any error in when or how it considered § 5G1.3(b)(1) was
harmless. Id.
Henry’s 108-month sentence was also substantively reasonable. We review
“all sentences—whether inside, just outside, or significantly outside the Guidelines
range—under a deferential abuse-of-discretion standard.” Johnson, 803 F.3d at
618 (quoting Gall, 552 U.S. at 41). Nothing prevents a court from varying from
the Guidelines based on the § 3553(a) sentencing factors. Gall, 552 U.S. at 49–50;
see also U.S.S.G. § 1B1.1(c), comment. (backg’d.) (“If, after step (c), the court
imposes a sentence that is outside the guidelines framework, such a sentence is
considered a ‘variance.’”). Indeed, our post-Booker reasonableness review “takes
into account the § 3553(a) factors as well as the advisory guidelines range.”
Keene, 470 F.3d at 1350. When deciding whether to vary from the Guidelines
framework, a district court “may consider conduct that a probation officer already
had considered in calculating the defendant’s advisory guidelines range.” United
States v. Moran, 778 F.3d 942, 983 (11th Cir. 2015). Relying on that principle, we
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have upheld the substantive reasonableness of an above-Guidelines sentence where
the district court concluded that the defendant’s string of burglaries warranted a
stronger sentence than what the Guidelines recommended. See Johnson, 803 F.3d
at 619–20.
After evaluating Henry’s case, we are not “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quoting United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008)). The district court explained that it had
considered the Guidelines, the presentence investigation report, and the arguments
of counsel and had “evaluated the reasonableness of a sentence through the lens
of” § 3553—just as it was required to do. As the court noted, Henry’s advisory
guideline range would have been higher but for the statutory maximum. The
district court also considered Henry’s characteristics and lengthy criminal
history—specifically, the fact that Henry had been convicted of ten burglaries over
the 23 years prior to the offense he was being sentenced for. Henry’s presentence
investigation report showed that at least three of those burglaries were armed and
that Henry had previously been convicted of an assault. Given these facts and
circumstances, it was at least reasonable for the district court to impose a 108-
month sentence.
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* * *
A sentencing system where some guidelines are binding, and others are not,
is not the one that the Supreme Court set out in Booker. District courts must
consider the Guidelines, of course, but are not bound to follow their advice. Here,
the district court needed to consider the effect of § 5G1.3(b)(1) on Henry’s
recommended sentence, but it was free to decline to impose a sentence consistent
with that section’s guidance. Because the sentence the court chose was
procedurally and substantively reasonable, we affirm.
AFFIRMED.
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WILLIAM PRYOR, Chief Judge, dissenting:
I disagree with the majority opinion on three grounds. The majority first
concludes that our precedents leave us free to decide whether the provision of the
sentencing guidelines at issue, section 5G1.3(b), is mandatory. But we have
already held that it is mandatory. And even if we could decide the issue for
ourselves, I would disagree with my colleagues’ decision that the provision is
advisory. Finally, I would conclude that the erroneous decision of the district court
not to apply the provision was not harmless.
I respectfully dissent. I would vacate Henry’s sentence and remand for the
district court to adjust his sentence as section 5G1.3(b) requires. Henry should be
given credit for the twenty-four months he has already served on another sentence.
A. We Have Already Held that Section 5G1.3(b) Is Mandatory.
We have already rejected the majority’s position. In United States v. Knight,
562 F.3d 1314, 1329 (11th Cir. 2009), we vacated a sentence when the district
court did not apply section 5G1.3(b). We did so because “[t]he district court erred
when it did not reduce Knight’s sentence” under section 5G1.3(b). Id. at 1329. And
we remanded to the district court with instructions to apply the adjustment dictated
by the guideline’s mandatory language. Id.
The majority points out the parties agreed in Knight that the district court
should have applied section 5G1.3(b). Maj. Op. at 12. It reasons that our
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pronouncement in Knight was not a holding because the government conceded that
the district court should have applied the guideline. Id. But its suggestion that there
exists a “government concession” exception to our prior-panel-precedent rule is
incorrect.
Decisions involving party concessions fall into two categories. Sometimes, a
party’s concession prompts us to resolve an appeal without reaching a holding
about how the underlying law works. E.g., Wilkes v. United States, 289 F.3d 684,
687 n.6 (11th Cir. 2002) (awarding relief “[o]n the basis of these concessions, and
not on the basis of a resolution of the legal issues”); Garcia v. United States, 278
F.3d 1210, 1212 (11th Cir. 2002) (explaining that “the parties have agreed” about a
preliminary legal question and “assum[ing] for the purposes of argument” that they
were correct). This first category of course does not constrain us to reach the same
outcome in a later appeal; it is not a holding.
Other times, we point out the concession and express agreement with the
parties’ position after our own evaluation of the matter. E.g., United States v. Cain,
433 F.3d 1345, 1346 n.1 (11th Cir. 2005) (“As [Cain] concedes, our existing
precedent forecloses his argument.”); United States v. Olson, 716 F.2d 850, 852
(11th Cir. 1983) (“The government’s concession might well be the end of this case,
but since the district court did not accept the government’s concession filed with it
and addressed the matter at length, we shall do so also.”). Our own evaluation may
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even lead us to reject the concession. E.g., King v. Moore, 196 F.3d 1327, 1331
(11th Cir. 1999) (“The State’s concession notwithstanding, we think that Davis’s
rule still bars the claim.”). This second category is obviously as much of a holding
as any other decision.
Knight clearly falls into the second category because we explained why the
government’s concession was correct instead of resolving the appeal without
reaching a legal conclusion. Far from relying on the government’s concession, we
stated without qualification that “[t]he district court erred when it did not reduce
Knight’s sentence” under section 5G1.3(b). Knight, 562 F.3d at 1329. We backed
up that conclusion by quoting the guideline, explaining that the Bureau of Prisons
could not credit Knight’s time served, and determining that the state conviction
was based on conduct that was used to enhance Knight’s federal sentence. Id.
Along the way, we pointed out that the United States conceded that the district
court should have applied section 5G1.3(b). But in no way did our conclusion
depend on that concession.
Nor is the majority correct that Knight is consistent with the view that the
section 5G1.3(b) adjustment is advisory. See Maj. Op. at 12. Our instructions to the
district court on remand dispel that view. We instructed the district court to apply
the adjustment on remand, not to consider its application or rebalance the section
3553(a) factors. Knight, 562 F.3d at 1329. So if Knight was wrongly decided, it can
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be corrected by our court only through an en banc decision. United States v.
Bazantes, 978 F.3d 1227, 1243–44 (11th Cir. 2020).
Knight, by the way, is not the only post-Booker decision in which we have
applied a guideline as mandatory. We held in United States v. Moran that
“[s]upervised release is mandated whenever a sentence exceeds one year of
imprisonment and may be imposed at the discretion of the district court
‘follow[ing] imprisonment in any other case.’” 573 F.3d 1132, 1138 (11th Cir.
2009) (quoting U.S.S.G. § 5D1.1). And we recently held in United States v. Pon
that another guideline imposed mandatory requirements on concurrent and
consecutive sentencing. 963 F.3d 1207, 1241 (11th Cir. 2020) (construing U.S.S.G.
§ 5G1.2(d)).
The Supreme Court has not overruled or abrogated our precedents. The
majority says the Court “has already said” that section 5G1.3(b) is advisory. Maj.
Op. at 9–11. In Gall v. United States, it points out, the Court explained how to
conduct reasonableness review of the defendant’s probation-only sentence and
acknowledged that his sentence was “not recommended under the Guidelines when
the applicable Guidelines range is outside Zone A . . . as it is here.” 552 U.S. 38,
58–59 & n.11 (2007) (citing U.S.S.G. § 5B1.1). But Gall predated our decisions in
Pon, Moran, and Knight to treat as mandatory guidelines that restrict the kind of
sentence, not the sentencing range, that the district court may impose. Even if the
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majority is right that Gall means our precedents are wrong, Gall still does not
provide an excuse to overrule our prior panel precedents. And Gall’s statement
falls short of the weight the majority places on it. The Court never acknowledged
that the Guidelines prohibited the kind of sentence Gall received; the prohibition of
probation-only sentences for Zone D offenders like Gall appears in section
5C1.1(f) of the Guidelines, not the guideline the Court cited. Compare U.S.S.G.
§ 5C1.1(f), with id. § 5B1.1. Moreover, unlike in Knight, neither party raised the
issue of whether section 5C1.1(f) fell outside the holding of Booker. That issue
“merely lurk[ed] in the record,” so Gall is “not to be considered as having” decided
it. Webster v. Fall, 266 U.S. 507, 511 (1925). The majority accuses me of “not
really attempt[ing] to align” my views with Gall or with Kimbrough v. United
States, 552 U.S. 85 (2007). Maj. Op. at 14. But neither decision answered the
question we consider here, and both decisions predated the trio of circuit
precedents that contradict the majority’s view.
The majority also rests its rejection of my position in part on our decision in
United States v. Gonzalez-Murillo, 852 F.3d 1329, 1336–37 (11th Cir. 2017),
which requires district courts to treat section 5G1.3(b)(1) as lowering a defendant’s
“guideline range” in one narrow circumstance: sentence-modification proceedings
based on an amendment to the Guidelines, 18 U.S.C. § 3582(c)(2). In those
proceedings, Gonzalez-Murillo held that courts must apply “all eight steps” of
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section 1B1.1(a)—including any adjustment under section 5G1.3(b)(1)—“to
determine the amended guideline range” for purposes of a sentence modification.
852 F.3d at 1336 (emphasis added).
The amended guideline range in a sentence-modification proceeding carries
a significance that does not attach to the original guideline range. Unlike at
sentencing, where the guideline range is advisory, a district court in a sentence-
modification proceeding is forbidden to reduce the defendant’s sentence beneath
“the minimum of the amended guideline range” except in one limited circumstance
not relevant here. U.S.S.G. § 1B1.10(b)(2); see also Dillon v. United States, 560
U.S. 817, 819 (2010). Because Gonzalez-Murillo held that section 5G1.3(b)(1)
applies in sentence-modification proceedings—even when it mandates a sentence
lower than the guideline range produced by the first seven steps of section
1B1.1(a)—it also had to hold that section 5G1.3(b)(1) lowers the defendant’s
“amended guideline range for purposes of” a sentence-modification proceeding.
See 852 F.3d at 1337, 1340 (emphasis added).
Although I have doubts about whether Gonzalez-Murillo was correct on this
point, see United States v. Helm, 891 F.3d 740, 743–44 (8th Cir. 2018), the
decision binds district courts to treat section 5G1.3(b)(1) as lowering the amended
guideline range that applies in a sentence-modification proceeding. But its holding
extends only to the effect of section 5G1.3(b)(1) on “the amended guideline range
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for purposes of [section] 1B1.10(a)(1),” the guideline that governs the relevant
sentence-modification proceeding. Gonzalez-Murillo, 852 F.3d at 1337. And we
cannot extend its holding to the calculation of the original guideline range that
applies at sentencing. As the next section discusses, such an extension would be
contrary to the text and structure of the Guidelines. It would also contravene
Booker by making a mandatory guideline govern a defendant’s guideline range.
And it would be inconsistent with our post-Booker decision in Knight, which held
that section 5G1.3(b)(1) is mandatory at sentencing and so necessarily decided that
this guideline does not affect the guideline range. See 562 F.3d at 1329.
B. Section 5G1.3(b) Is Mandatory.
We are not only bound by our precedents to conclude that section 5G1.3(b)
is mandatory when it applies; we should also reach the same result even without
those precedents. The majority resists the straightforward application of the
mandatory language in section 5G1.3(b)(1) by invoking the well-established
principle that the Guidelines are “advisory” under Booker v. United States, 543
U.S. 220, 245 (2005). If the Guidelines are advisory, it contends, then section
5G1.3(b)(1) cannot have required the district court to adjust Henry’s sentence. See
Maj. Op. at 6–8. After all, it is hornbook law in the post-Booker era that after
considering the Guidelines and the statutory sentencing factors, district courts may
impose any appropriate sentence “within statutory limits,” subject only to
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“appellate review for reasonableness.” Pepper v. United States, 562 U.S. 476, 490
(2011) (internal quotation marks omitted). I disagree with the majority’s
conclusion because it misunderstands which aspects of the Guidelines Booker held
advisory.
To be sure, post-Booker references to the “advisory” Guidelines are
ubiquitous in judicial opinions. See, e.g., Kimbrough, 552 U.S. at 91 (“[U]nder
Booker, the cocaine Guidelines, like all other Guidelines, are advisory only.”).
Indeed, “[v]irtually all of us are in the habit of distinguishing, in one way or
another, between the ‘mandatory Guidelines’ that operated before Booker and the
‘advisory Guidelines’ that have operated since.” Lester v. United States, 921 F.3d
1306, 1312 (11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing en
banc). But sometimes idioms that are accurate in one respect “may be erroneous or
inadequate in other respects.” Id. The maxim “advisory Guidelines” is no
exception.
Booker involved a Sixth Amendment challenge to the practice of judges
finding facts at sentencing that increased a defendant’s mandatory sentencing
range under the Guidelines. 543 U.S. at 226–27. The Court held that this practice
violated the Sixth Amendment right to a jury trial. Id. at 227–29 & n.1. To remedy
the constitutional violation, a separate majority of the Court held invalid the
provision of federal law, 18 U.S.C. § 3553(b)(1), that made the sentencing range
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produced by the Guidelines binding on the sentencing court. Booker, 543 U.S. at
245. The Court also invalidated the provision that mandated de novo appellate
review of departures from the guideline range, 18 U.S.C. § 3742(e). Booker, 543
U.S. at 259. And because the Court determined that making the guideline range
mandatory in some cases and advisory in others would be contrary to the intent of
Congress, it held that the guideline range is always advisory—even when
mandatory application of the guideline range would not violate the Sixth
Amendment. Id. at 266–67.
Although Booker held the guideline range advisory, it did not make every
provision of the Guidelines optional. Both before and after Booker, provisions in
the Guidelines that neither enhance a defendant’s sentence based on judicial
factfinding nor mandate the imposition of a sentence within the guideline range are
binding on sentencing courts, so long as they do not conflict with a federal statute
or the Constitution. As explained below, a mandatory adjustment under section
5G1.3(b)(1) is one such requirement.
To understand why some aspects of the Guidelines remain binding after
Booker, it helps to review why all the Guidelines were ever considered binding in
the first place. The Sentencing Guidelines “are the equivalent of legislative rules
adopted by federal agencies.” Stinson v. United States, 508 U.S. 36, 45 (1993). The
United States Sentencing Commission promulgates the Guidelines using the
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rulemaking procedures of the Administrative Procedure Act, see 28 U.S.C.
§ 994(x), which gives the Guidelines “the force and effect of law,” Perez v. Mortg.
Bankers Ass’n, 575 U.S. 92, 96 (2015) (internal quotation marks omitted). As the
Supreme Court explained in rejecting a constitutional challenge to the Sentencing
Commission, “the Guidelines bind judges and courts in the exercise of their
uncontested responsibility to pass sentence in criminal cases.” Mistretta v. United
States, 488 U.S. 361, 391 (1989); see also id. at 413 (Scalia, J., dissenting)
(agreeing that the Guidelines “have the force and effect of laws”).
The nature of the Guidelines as law is reflected in several provisions of the
Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, which created
the Sentencing Commission and empowered it to promulgate the Guidelines. A
key provision in the Sentencing Reform Act was section 3553(b)(1), which
purported to require courts to “impose a sentence of the kind, and within the range”
prescribed by the Guidelines. 18 U.S.C. § 3553(b)(1). As we all know, Booker later
held that section 3553(b)(1) could not require courts to impose a sentence within
the range prescribed by the Guidelines. In addition to section 3553, the Act also
provided a right of appeal to both the defendant and the government if a sentence
“was imposed as a result of an incorrect application of the sentencing guidelines.”
Id. § 3742(a)(2), (b)(2). And it instructed the courts of appeals to “remand the case
for further sentencing proceedings” if “the sentence was imposed . . . as a result of
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an incorrect application of the sentencing guidelines.” Id. § 3742(f)(1). Although
Booker held invalid the provision that made the guideline range mandatory, id.
§ 3553(b)(1), it did not affect section 3742(f), which requires federal courts to
correctly apply the Guidelines in all other respects. See United States v. Crawford,
407 F.3d 1174, 1178–79 (11th Cir. 2005).
Because the Guidelines have the force and effect of law, sentencing courts
may refuse to apply them only if they conflict with a higher source of law. Cf.
Stinson, 508 U.S. at 38 (holding that even the commentary to a guideline is binding
unless it conflicts with the Constitution, a federal statute, or the guideline itself).
Booker makes clear that, in the light of its constitutional holding, mandatory
application of the guideline range would be inconsistent with the otherwise
enforceable provisions of the Sentencing Reform Act. See Lester, 921 F.3d at
1314–15 (W. Pryor, J., respecting the denial of rehearing en banc). For that reason,
sentencing courts need not—indeed, they must not—treat the guideline range as
mandatory. See United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). But
Booker neither requires nor countenances district courts treating every “shall” in
the Guidelines as a “may.” Absent a conflict with a higher source of federal law,
sentencing courts must follow mandatory instructions in the Guidelines, which
“bind [them] in the exercise of their uncontested responsibility to pass sentence in
criminal cases.” Mistretta, 488 U.S. at 391. And Booker’s holding about the
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Guidelines that determine the “guideline range” said nothing about the Guidelines
that determine the kind of sentence available.
To determine whether section 5G1.3(b)(1) is mandatory under Booker, we
must decide whether that provision speaks to the guideline range or the kind of
sentence available. 18 U.S.C. § 3553(b)(1). If it affects the guideline range, then
district courts may of course vary from the sentencing range that section
5G1.3(b)(1) would provide based on the statutory sentencing factors. See Gall, 552
U.S. at 49–50. But if it instead dictates the kind of sentence available, then Booker
provides no basis to disregard the mandatory language of the guideline.
Section 5G1.3(b)(1) “does not reduce the defendant’s guideline range.”
Helm, 891 F.3d at 743 (emphasis and internal quotation marks omitted). Instead, it
comes into play only “after the court has determined the applicable range.” Id.
(internal quotation marks omitted). And it tells courts which kind of sentence to
impose—a concurrent sentence or a consecutive sentence. The text of section
5G1.3, the structure of the Guidelines, and the commentary to section 5G1.3
support this conclusion. See United States v. Lange, 862 F.3d 1290, 1294 (11th Cir.
2017) (explaining that the traditional rules of statutory interpretation govern our
interpretation of the Guidelines).
The text of section 5G1.3 makes clear that the guideline does not govern the
calculation of the guideline range. The guideline is primarily about which kind of
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sentence, concurrent or consecutive, a court should impose. Subsection (a) requires
imposition of a consecutive sentence if the defendant committed his offense while
he was serving or about to serve a term of imprisonment for another offense.
U.S.S.G. § 5G1.3(a). Subsection (b), as we know, requires courts to impose a
sentence concurrent with an undischarged term of imprisonment for the same
relevant conduct. Id. § 5G1.3(b)(2). Subsection (c) requires the federal sentence to
be imposed to run concurrently with an anticipated state term of imprisonment for
the same relevant conduct. Id. § 5G1.3(c). And subsection (d) gives a court
discretion to impose a sentence “concurrently, partially concurrently, or
consecutively” when the other three subsections do not apply. Id. § 5G1.3(d). Each
of those provisions speaks to which kind of sentence a court may impose—
concurrent or consecutive. None dictates how to calculate the guideline range. And
subsection (b)(1) simply adjusts the sentence to account for the time already
served, effectively making the federal sentence run concurrently with the time
already served on the other sentence.
A second aspect of the text underscores the point that section 5G1.3 does not
affect the guideline range: the guideline governs imposition of the sentence, not
calculation of the guideline range. The title of the guideline is “Imposition of a
Sentence on a Defendant Subject to an Undischarged Term of Imprisonment or
Anticipated State Term of Imprisonment.” U.S.S.G. § 5G1.3 (emphasis added); see
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also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts § 35, at 221 (2012) (“The title and headings are permissible indicators of
meaning.”). Subsection (b) of the guideline provides instructions about how “the
sentence for the instant offense shall be imposed” in certain circumstances, not
how to calculate the guideline range. U.S.S.G. § 5G1.3(b) (emphasis added). And
the guideline requires district courts to “adjust the sentence” imposed on a
defendant, not the defendant’s guideline range. Id. § 5G1.3(b)(1) (emphasis
added). In short, this guideline mandates a sentence adjustment for a certain class
of defendants; it has nothing to do with calculating a defendant’s guideline range.
The structure of the Guidelines confirms that section 5G1.3(b) plays no role
in calculating the guideline range. The Guidelines provide eight steps for
determining “the kinds of sentence and the guideline range” to be used at
sentencing. Id. § 1B1.1(a). The first five steps provide instructions for calculating a
defendant’s offense level, and the sixth step explains how to determine the
defendant’s criminal history category. Id. § 1B1.1(a)(1)–(6). Step seven then
instructs the sentencing court to “[d]etermine the guideline range in Part A of
Chapter Five that corresponds to the offense level and criminal history category
determined above.” Id. § 1B1.1(a)(7). At that point, calculation of the guideline
range is complete. See Helm, 891 F.3d at 742. Finally, step eight instructs: “For the
particular guideline range, determine from Parts B through G of Chapter Five the
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sentencing requirements and options related to probation, imprisonment,
supervision conditions, fines, and restitution.” U.S.S.G. § 1B1.1(a)(8) (emphases
added). Section 5G1.3, which appears in Part G of Chapter 5, is a “sentencing
requirement[]” related to imprisonment. Id. And a sentencing court applies that
requirement only when it “impose[s]” the sentence, id. § 5G1.3(b)—that is, after it
has calculated the guideline range, determined any sentencing requirements, and
selected a sentence based on the statutory factors, see id. § 1B1.1(a)(7)–(8), (c).
The contrary view, that section 5G1.3 determines the guideline range, would
require section 1B1.1 to use “guideline range” in two different ways, and it would
read the phrase “the kinds of sentence” out of the guideline altogether. This view
would require the umbrella paragraph of section 1B1.1(a) to use “guideline range”
broadly to mean the output of the entire operation of the Guidelines (other than the
departure considerations in sections 5H and 5K). But that meaning conflicts with
the narrower meaning required by step seven, which instructs courts to
“[d]etermine the guideline range” from the sentencing table. Id. § 1B1.1(a)(7)
(emphasis added). That inconsistent usage makes little sense. And interpreting
“guideline range” broadly enough to sweep in guidelines about the kind of
sentences available would leave the “kinds of sentence” language in the umbrella
paragraph without independent meaning. I would reject this view because it
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violates the presumption of consistent usage and the surplusage canon. Scalia &
Garner, Reading Law §§ 25–26, at 170–179.
The commentary to section 5G1.3(b), which is authoritative, see United
States v. Burke, 863 F.3d 1355, 1358 (11th Cir. 2017), also makes clear that any
adjustment under that guideline must occur after the district court has calculated
the guideline range and determined the appropriate total punishment to impose.
Application Note 2(D) gives an example of a defendant with a guideline range of
12 to 18 months who has already served six months on a nine-month state sentence
for an offense that was relevant conduct. See U.S.S.G. § 5G1.3 cmt. n.2(D). If
“[t]he court determines that a sentence of 13 months provides the appropriate total
punishment,” the application note explains, then the court should impose “a
sentence of seven months, . . . to run concurrently with the three months remaining
on the defendant’s state sentence.” Id. The seven-month sentence, adjusted for the
6 months already served, achieves a total punishment of 13 months. Id. This
example confirms that a district court must first determine the total appropriate
punishment—up to the statutory maximum—and then adjust the sentence it
imposes to account for time already served on the other sentence. See id.
Because section 5G1.3(b) does not affect the guideline range, the authority
to vary from the guideline range provides no basis to refuse to adjust a defendant’s
sentence under that guideline. If the guideline applies, a district court may not
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refuse to adjust the sentence to further the statutory goals of sentencing, see 18
U.S.C. § 3553(a). The district court must instead select an appropriate sentence
after considering the guideline range and the statutory factors and then adjust the
selected sentence to account for time served on the undischarged sentence for
relevant conduct.
C. The Refusal of the District Court to Apply Section 5G1.3(b) Was Not
Harmless Error.
The majority contends that even if the district court erred in its application of
section 5G1.3(b), its error was harmless because the district court would have
imposed the same sentence even if it had applied the provision. Maj. Op. at 19–22.
That position cannot be correct. The district court’s contention that it would have
given Henry the same sentence even if it had applied section 5G1.3(b) confirms
that the district court misunderstood how the provision works.
By its terms, section 5G1.3 applies at the “[i]mposition” of the sentence.
U.S.S.G. § 5G1.3 (emphasis added); id. § 5G1.3(b) (“the sentence . . . shall be
imposed” (emphasis added)). Imposition of a sentence indisputably occurs after
consideration of the statutory factors. 18 U.S.C. § 3553(a) (“The court, in
determining the sentence to be imposed, shall consider [seven factors].” (emphasis
added)). And section 5G1.3(b) assumes the existence of an already-determined
sentence; it instructs sentencing courts to apply it by “adjust[ing] the sentence,” not
to take it into account when determining the sentence. U.S.S.G. § 5G1.3(b)(1).
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In other words, the provision is a back-end adjustment to account for the
time the defendant has already served on another sentence. U.S.S.G. § 5G1.3(b).
But the district court appears to have understood it to come into play as part of his
decision about the length of Henry’s sentence. Because section 5G1.3(b) must
make a difference when it applies, the district court underscored rather than
remediated its error when it said applying section 5G1.3(b) would not make a
difference in Henry’s sentence. Far from rendering the error harmless, the
statement that the district court would have imposed the same sentence even if it
had applied section 5G1.3(b) confirms that it did not understand the guideline and
undermines the idea that the error was harmless. And looking at the matter from
Henry’s perspective, the difference of twenty-four months was anything but
harmless.
The majority reaches the opposite conclusion only by misunderstanding the
point in the sentencing process at which section 5G1.3 applies. See Maj. Op. at 13–
18. It points out that section 1B1.1 tells courts to determine “the kinds of sentence
and the guideline range” before considering the section 3553(a) factors to
determine the total punishment to be imposed. U.S.S.G. § 1B1.1(a)(8), (c); Maj.
Op. at 13. That observation is the starting point for determining when to apply
section 5G1.3(b), not the end: Section 1B1.1(a), the part of the guideline that
would ordinarily dictate when to consider section 5G1.3, provides for exceptions to
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its order of operations. Id. § 1B1.1(a) (providing that the order applies “except as
specifically directed”). As I have explained, section 5G1.3(b) is just such an
exception.
The majority supports its contrary conclusion by pointing out that the
allowance for exceptions exists only in subsection (a) of the order of operations
prescribed by section 1B1.1. Maj. Op. at 15. And it observes that the consideration
of the statutory factors as directed in subsection (c) occurs after the consideration
of the portions of the guidelines in the manner prescribed in subsection (a). Id. But
that reading misses a fundamental point about the interaction of the three
subsections of section 1B1.1.
Although subsections (b) and (c) prescribe the steps that follow subsection
(a), they say nothing about what must occur as part of subsection (a). To make that
point more concrete, the only provision that would ordinarily prescribe when
section 5G1.3(b) must be considered is subsection (a), and that subsection is
subject to an exception to its order. If a guideline falls within that exception and
provides for its own consideration somewhere other than within subsection (a),
nothing about subsection (b) or (c) contradicts that possibility.
Moreover, section 5G1.3(b) would come into play after consideration of the
statutory factors even without the explicit allowance for exceptions in section
1B1.1(a). When two provisions conflict, the specific provision prevails. Scalia &
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Garner, Reading Law § 28, at 183. Section 5G1.3(b) conflicts with the general
order provided in section 1B1.1 for applying the guidelines. It tells district courts
how to impose the sentence determined from the application of the statutory
factors in a specific circumstance—when the defendant is subject to an
undischarged state term of imprisonment that is relevant conduct to the offense of
conviction. U.S.S.G. § 5G1.3(b)(1) (instructing courts to “adjust the sentence”). So
even if section 1B1.1 did not explicitly provide for exceptions to its general rules,
the specific rules of section 5G1.3(b) would control.
The majority next expresses its view that the commentary to section
5G1.3(b), including an example of its application, “cannot fairly be considered a
specific direction” about how to apply section 5G1.3(b). Maj. Op. at 16. It does not
explain why it holds this view. Commentary authoritatively dictates the meaning
and application of the guideline unless it is inconsistent with or a plainly erroneous
reading of the guideline. United States v. Isaac, 987 F.3d 980, 991 (11th Cir. 2021)
(citing Stinson v. United States, 508 U.S. 36, 38 (1993)). Placing so much weight
on the commentary makes sense: just like the guidelines themselves, amendments
to the commentary are ordinarily subject to notice and comment and are submitted
to Congress with other guidelines amendments. See U.S. Sent’g Comm’n, R. of
Prac. & Proc. 4.1, 4.3 (2016); U.S. Sent’g Comm’n, R. of Prac. & Proc. 4.1, 4.3
(2007); U.S. Sent’g Comm’n, R. of Prac. & Proc. 4.1, 4.3 (1997). And this portion
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of the commentary has repeatedly been subject to notice and comment and
submission to Congress. E.g., 57 Fed. Reg. 20,148, 20,159 (May 11, 1992)
(submission to Congress); 68 Fed. Reg. 26,960, 26,975–76 (May 16, 2003) (same);
67 Fed. Reg. 42,308–09 (June 21, 2002) (notice and comment); 67 Fed. Reg.
77,532, 77,540–43 (December 18, 2002) (same). The majority is wrong to brush
aside the commentary.
The majority additionally points out that the Sentencing Commission
adopted section 1B1.1(c) more recently than it promulgated the portion of the
commentary making clear when to apply section 5G1.3(b), and that the latter
commentary predates Booker. Maj. Op. at 15. It suggests that the commentary is
“conflicted out” either by Booker or by the new section 1B1.1(c). Id. at 15–16. I
disagree.
There are at least two problems with that argument. As to Booker, the
majority never explains its puzzling view that Booker told courts when in the
sentencing process to consider section 5G1.3(b). And as to the idea that section
1B1.1(c) implicitly repealed section 5G1.3(b), “[r]epeals by implication are
disfavored—very much disfavored”—and occur only when the earlier and later
provisions are irreconcilable. Scalia & Garner, Reading Law § 55, at 327–28
(internal quotation marks omitted). And section 5G1.3 and its commentary are not
irreconcilable with section 1B1.1(c). As I have just explained, subsection (c) says
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nothing about when to apply section 5G1.3(b), and it provides only that courts
should apply subsection (c) after working through subsections (a) and (b). Nothing
about my reading of section 5G1.3(b) conflicts with that order.
The majority offers one more argument that misses the mark. It
acknowledges that section 5G1.3(b) applies at the imposition of the sentence, and
it responds that other guidelines in Chapter Five, which would ordinarily be
considered as part of section 1B1.1(a)(8), “deal with the ‘imposition’ of a
sentence.” Maj. Op. at 16. That point is right enough, as far as it goes; many of the
guidelines in Chapter Five use the word “impose” in the course of explaining when
certain kinds of defendants are eligible for certain kinds of sentences. To the extent
those guidelines do not provide otherwise, courts take their directions into account
when considering the statutory factors to decide what total punishment to impose.
See 18 U.S.C. § 3553(a)(4) (directing courts to consider “the kinds of sentence and
sentencing range established” by the guidelines). Those guidelines, in other words,
guide courts in selecting the total punishment. Section 5G1.3(b), in contrast to
those guidelines, applies at the imposition of the sentence. It tells courts what to do
after determining the total punishment through the application of the section
3553(a) factors. Tellingly, the majority never reckons with how a court should
“adjust the sentence for any period of imprisonment already served” if the sentence
has not yet been determined. U.S.S.G. § 5G1.3(b)(1). So the majority’s observation
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that other guidelines in Chapter Five use the word “impose” does not succeed in
making section 5G1.3(b) indistinguishable from its neighbors.
I would reverse and remand for resentencing with correct application of
section 5G1.3(b), so I respectfully dissent.
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