[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-15251

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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-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. 

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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 sentencemodification 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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