United States of America v. CHRISTOPHER JASON HENRY

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

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-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

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.