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United States of America v. CHRISTOPHER JASON HENRY
Case Number: 18-15251
Judge: Britt C. Grant
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Atlanta, Georgia - Criminal defense lawyer represented defendant with a felon in possession of a firearm charge.
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-inpossession 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
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.
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).
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.
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
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
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-ofsentence” 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
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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
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.
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
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
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-
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Outcome: 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.