[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-15251

________________________

D.C. Docket No. 2:17-cr-00508-WKW-GMB-1

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

CHRISTOPHER JASON HENRY,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_______________________

(August 7, 2020)

Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and ANTOON,

*

District Judge.

WILLIAM PRYOR, Chief Judge:

* Honorable John Antoon II, United States District Judge for the Middle District of Florida, 

sitting by designation.

Case: 18-15251 Date Filed: 08/07/2020 Page: 1 of 20
2

This appeal requires us to decide whether the district court erred by refusing

to adjust Christopher Henry’s federal sentence for time served on a related state 

sentence. See United States Sentencing Guidelines Manual § 5G1.3(b)(1) (Nov. 

2016). The Sentencing Guidelines provide that a district court “shall adjust” a 

defendant’s sentence for time served on a related sentence if certain requirements

are satisfied. Id. The parties have never disputed that the relevant requirements are 

satisfied, but the district court nonetheless refused to adjust Henry’s sentence. The 

government argues that because the Guidelines are advisory, see United States v. 

Booker, 543 U.S. 220, 245 (2005), the district court was not required to adjust 

Henry’s sentence. But our precedent establishes that an adjustment under section 

5G1.3(b)(1) of the Guidelines is mandatory when its requirements are satisfied, 

and our precedent is consistent with Booker. We vacate Henry’s sentence and 

remand for the district court to adjust his sentence as section 5G1.3(b)(1) requires.

I. BACKGROUND

In November 2016, Christopher Henry broke into a business in Covington 

County, Alabama, and stole eight firearms. Police arrested Henry a few days later. 

At the time of his burglary, Henry had a prior conviction for assault and 10 prior 

convictions for burglary. He pleaded guilty to burglary in the Covington County 

Circuit Court for his latest crime. In February 2017, that court sentenced Henry to 

20 years of imprisonment.

Case: 18-15251 Date Filed: 08/07/2020 Page: 2 of 20
3

In November 2017, a federal grand jury indicted Henry on one count of 

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), based on his theft 

of the firearms. In January 2018, while Henry was still serving his state sentence

for burglary, the United States obtained a writ of habeas corpus ad prosequendum

from the district court. The writ directed the Covington County Jail to deliver 

Henry to the United States Marshal for prosecution on the pending federal charge. 

After entering federal custody, Henry pleaded guilty to the felon-in-possession 

charge.

A probation officer prepared a presentence investigation report using the 

2016 edition of the United States Sentencing Guidelines. The report assigned

Henry a total offense level of 27 and a criminal history category of VI. Based on 

those calculations, Henry’s guideline range of imprisonment was 130 to 162 

months. But because the statutory maximum sentence for his crime was 10 years of 

imprisonment, see 18 U.S.C. § 924(a)(2), his guideline sentence became 120 

months of imprisonment, see U.S.S.G. § 5G1.1(a).

At his sentencing hearing in November 2018, Henry relied on section 

5G1.3(b) of the Guidelines to request a downward adjustment of his sentence. He 

argued that the district court was required to adjust his sentence for the 24 months 

he had already served on his state sentence for burglary, which was relevant 

conduct to his federal firearm offense. See U.S.S.G. § 5G1.3(b)(1). Subtracting 24 

Case: 18-15251 Date Filed: 08/07/2020 Page: 3 of 20
4

months from his guideline sentence of 120 months of imprisonment would yield a 

sentence of 96 months of imprisonment. And Henry urged the district court to vary 

downward and sentence him to 60 months of imprisonment based on the statutory 

factors. See 18 U.S.C. § 3553(a). Henry also requested that his federal sentence run 

concurrently with his state sentence. See U.S.S.G. § 5G1.3(b)(2).

The government “conceptually agree[d]” with Henry that his sentence 

should be adjusted for the 24 months he had already served on his state burglary 

sentence. But because Henry’s original guideline range of imprisonment was 130 

to 162 months, the government proposed that the district court subtract the 24 

months from that range to yield a new guideline range of 106 to 138 months. The 

government asked the district court to impose the statutory maximum sentence of 

120 months of imprisonment, near the middle of the new range it had calculated. 

The government also agreed with Henry that his federal and state sentences should 

run concurrently.

The district court sentenced Henry to 108 months of imprisonment. Because 

of Henry’s many prior convictions for burglary, the court refused to impose a 

lower sentence. But it explained that Henry’s federal and state sentences would run 

concurrently because his state burglary conviction was relevant conduct to the 

federal offense. See U.S.S.G. § 5G1.3(b)(2).

Case: 18-15251 Date Filed: 08/07/2020 Page: 4 of 20
5

Henry asked the district court to clarify whether it had adjusted his sentence 

by 24 months under section 5G1.3(b)(1). The district court responded, “No. I’m 

giving the sentence under all the circumstances. . . . [And] 108 [months of 

imprisonment] is my judgment of a fair sentence under all the circumstances in this 

case.”

Henry objected to the sentence. He explained that section 5G1.3(b)(1) 

provides that a court “shall” adjust a defendant’s sentence based on an 

undischarged term of imprisonment for relevant conduct. The district court 

responded that “Congress gets to say ‘shall,’” but “[t]he Sentencing Commission 

doesn’t get to say ‘shall.’” It overruled Henry’s objection.

II. STANDARD OF REVIEW

We review an interpretation of the Sentencing Guidelines de novo. United 

States v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019).

III. DISCUSSION

Section 5G1.3 of the Guidelines governs the “Imposition of a Sentence on a 

Defendant Subject to an Undischarged Term of Imprisonment.” U.S.S.G. § 5G1.3. 

Subsection (b)(1) of that guideline requires the district court to adjust a defendant’s

sentence for time served on an earlier sentence if certain conditions are satisfied:

(b) If . . . a term of imprisonment resulted from another offense that 

is relevant conduct to the instant offense of conviction . . . , the 

sentence for the instant offense shall be imposed as follows:

Case: 18-15251 Date Filed: 08/07/2020 Page: 5 of 20
6

(1) the court shall adjust the sentence for any period of 

imprisonment already served on the undischarged term 

of imprisonment if the court determines that such 

period of imprisonment will not be credited to the federal 

sentence by the Bureau of Prisons[.]

Id. § 5G1.3(b)(1).

This guideline uses mandatory language: it says that “the sentence . . . shall

be imposed as follows” and that “the court shall adjust the sentence” if the relevant 

requirements are satisfied. Id. (emphases added); see also Antonin Scalia & Bryan 

A. Garner, Reading Law: The Interpretation of Legal Texts § 11, at 112 (2012) 

(“Mandatory words impose a duty; permissive words grant discretion.”). Our 

precedents hold that this language “renders the provision mandatory; a court must 

adjust a prisoner’s sentence when [the] requirements are satisfied.” United States v. 

Gonzalez-Murillo, 852 F.3d 1329, 1338 (11th Cir. 2017); see also United States v. 

Knight, 562 F.3d 1314, 1329 (11th Cir. 2009) (vacating a sentence because the 

district court failed to apply section 5G1.3(b)(1)).

To trigger a mandatory adjustment under this guideline, four requirements

must be satisfied. First, the defendant must have served a period of imprisonment 

for another offense. Second, that term of imprisonment must remain undischarged. 

Third, the other offense must be relevant conduct to the instant offense of 

conviction. And fourth, the Bureau of Prisons must not credit that period of 

Case: 18-15251 Date Filed: 08/07/2020 Page: 6 of 20
7

imprisonment to the defendant’s new sentence. U.S.S.G. § 5G1.3(b)(1); see also 

Gonzalez-Murillo, 852 F.3d at 1337.

The parties have never disputed that the requirements were satisfied in 

Henry’s case. Henry had served 24 months in custody for his state burglary offense 

at the time of his federal sentencing—from November 2016 to November 2018. 

Although he entered federal custody in January 2018 through a writ of habeas 

corpus ad prosequendum, he continued to serve his state sentence as his federal 

proceedings progressed. See Vignera v. Att’y Gen., 455 F.2d 637, 637–38 (5th Cir. 

1972). The 20-year state sentence remains undischarged, and his theft of the eight 

firearms was relevant conduct to his federal felon-in-possession offense. See 

U.S.S.G. § 1B1.3(a)(1)(A). And finally, the parties agree that the Bureau of Prisons 

will not credit those 24 months to Henry’s federal sentence. By statute, the Bureau 

awards credit for prior custody if the time spent in official detention is not 

“credited against another sentence.” 18 U.S.C. § 3585(b). And the government 

does not dispute that Alabama will credit to Henry’s state sentence the 24 months 

he spent in official detention between his arrest by state authorities and his federal 

sentencing.

A straightforward application of the guideline required the district court to 

adjust Henry’s sentence. But the district court refused to do so on the ground that

“[t]he Sentencing Commission doesn’t get to say ‘shall.’” The government echoes

Case: 18-15251 Date Filed: 08/07/2020 Page: 7 of 20
8

this proposition on appeal. It argues that because the Guidelines are advisory under 

Booker, the district court was free to vary from section 5G1.3(b)(1) based on the 

statutory sentencing factors. See 18 U.S.C. § 3553(a). We reject this argument 

because Booker did not render section 5G1.3(b)(1) advisory.

The government 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. See 543 U.S. at 245. If the Guidelines are 

advisory, the government contends, then section 5G1.3(b)(1) cannot have required

the district court to adjust Henry’s sentence. 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 “appellate review for reasonableness.” Pepper v. United 

States, 562 U.S. 476, 490 (2011) (internal quotation marks omitted).

To be sure, post-Booker references to the “advisory” Guidelines are 

ubiquitous in judicial opinions. See, e.g., Kimbrough v. United States, 552 U.S. 85, 

91 (2007) (“[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 

Case: 18-15251 Date Filed: 08/07/2020 Page: 8 of 20
9

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.

Mandatory application of section 5G1.3(b)(1) would have further limited the

permissible sentences for Henry beyond those permitted by his statutory range.

After the district court considered the Guidelines and the statutory factors, it 

imposed a sentence of 108 months of imprisonment—well below the 120-month 

statutory maximum. But a mandatory adjustment for the 24 months Henry had 

already served on his state burglary sentence would have required an even lower 

sentence. At most, the district court could have sentenced Henry to 96 months of 

imprisonment—the statutory maximum sentence of 120 months adjusted 

downward by 24 months.

According to the government, this result would contravene the advisory 

Guidelines regime of Booker. Cf. United States v. Bangsengthong, 550 F.3d 681, 

682 (7th Cir. 2008) (“Booker made all Guidelines advisory . . . .” (emphasis 

added)); United States v. De La Cruz, 897 F.3d 841, 846 (7th Cir. 2018) (“[T]he 

notion of a mandatory term in the advisory Guidelines requires . . . intellectual 

flexibility.”). We disagree. This argument misunderstands which aspects of the 

Guidelines Booker held advisory.

Case: 18-15251 Date Filed: 08/07/2020 Page: 9 of 20
10

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

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, sentencing 

requirements 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 

Case: 18-15251 Date Filed: 08/07/2020 Page: 10 of 20
11

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 

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. As 

we all know, the Act purported to make the sentencing range produced by the 

Guidelines binding on the sentencing court, although Booker later held that it could 

Case: 18-15251 Date Filed: 08/07/2020 Page: 11 of 20
12

not do so. 18 U.S.C. § 3553(b)(1). But 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 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). 

Case: 18-15251 Date Filed: 08/07/2020 Page: 12 of 20
13

Mandatory language in the Guidelines also must yield to any contrary instructions 

in other federal statutes. Compare U.S.S.G. § 5G1.2(c)–(d) (mandating that certain 

sentences “shall run concurrently”), with 18 U.S.C. § 3584(a)–(b) (giving 

sentencing courts discretion to run multiple terms of imprisonment “concurrently 

or consecutively” and instructing that they “shall consider” the section 3553(a) 

factors in making that determination); cf. United States v. Jarvis, 606 F.3d 552, 

554 (8th Cir. 2010) (concluding that “the guidelines do not control whether 

sentences run concurrently or consecutively”). 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.

To determine whether section 5G1.3(b)(1) is mandatory under Booker, we 

must decide whether that provision affects the guideline range. If it does, 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 v. 

United States, 552 U.S. 38, 49–50 (2007). But if it does not, then Booker provides 

no basis to disregard the mandatory language of the guideline.

Case: 18-15251 Date Filed: 08/07/2020 Page: 13 of 20
14

Section 5G1.3(b)(1) “does not reduce the defendant’s guideline range.” 

United States v. Helm, 891 F.3d 740, 743 (8th Cir. 2018) (emphasis and internal 

quotation marks omitted). It instead mandates a sentence reduction for certain 

defendants “after the court has determined the applicable range.” Id. (internal 

quotation marks omitted). This conclusion follows from the text of section 5G1.3, 

the structure of the Guidelines, and the commentary to section 5G1.3. 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 governs the 

imposition of a sentence, not the calculation of the guideline range. The title of that 

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 also Scalia & Garner, Reading Law § 35, at 221 

(“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

Case: 18-15251 Date Filed: 08/07/2020 Page: 14 of 20
15

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 

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]” 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).

Case: 18-15251 Date Filed: 08/07/2020 Page: 15 of 20
16

The commentary to section 5G1.3(b), which we must follow, 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 

refuse to adjust the sentence in order to further the statutory goals of sentencing, 

see 18 U.S.C. § 3553(a). The district court must instead select an appropriate 

Case: 18-15251 Date Filed: 08/07/2020 Page: 16 of 20
17

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.

We are unpersuaded by the contrary decisions of our sister circuits. See 

United States v. Carter, 652 F.3d 894, 896–97 (8th Cir. 2011); United States v. 

Armstead, 552 F.3d 769, 784 (9th Cir. 2008); United States v. Lane, 509 F.3d 771, 

775–76 (6th Cir. 2007). These circuits reasoned that the refusal to adjust a

defendant’s sentence under section 5G1.3(b)(1) may amount to a permissible 

“variance from the guidelines” based on the statutory sentencing factors. Carter, 

652 F.3d at 897; accord Armstead, 552 F.3d at 784; Lane, 509 F.3d at 775–76. But

a variance from the guidelines refers to “a sentence imposed outside the applicable 

guideline range based upon the statutory sentencing factors found at 18 U.S.C. 

§ 3553(a).” U.S. Sentencing Comm’n, Primer: Departures and Variances 1 (Mar.

2020) (emphasis added); see also, e.g., Chavez-Meza v. United States, 138 S. Ct. 

1959, 1963 (2018); Pepper, 562 U.S. at 490; Irizarry v. United States, 553 U.S. 

708, 715 (2008); Gall, 552 U.S. at 51. And as discussed, section 5G1.3(b)(1) does 

not affect the guideline range. So a refusal to apply that guideline cannot be 

evaluated as a “variance” from the guideline range.

We acknowledge that our decision in Gonzalez-Murillo, 852 F.3d at 1336–

37, requires district courts to treat section 5G1.3(b)(1) as lowering a defendant’s 

Case: 18-15251 Date Filed: 08/07/2020 Page: 17 of 20
18

“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 

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 we may have doubts about whether Gonzalez-Murillo was correct 

on this point, see Helm, 891 F.3d at 743–44, the decision binds district courts to

Case: 18-15251 Date Filed: 08/07/2020 Page: 18 of 20
19

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 for purposes of” a sentencemodification 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 discussed, 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.

In sum, sentence adjustments under section 5G1.3(b)(1) remain mandatory 

after Booker. An adjustment for time served reduces a defendant’s sentence instead 

of enhancing it, so mandatory application of the guideline does not violate the 

Sixth Amendment. See Booker, 543 U.S. at 244. And because this guideline has no 

impact on the guideline range, mandatory application of the guideline does not 

violate the remedial holding of Booker. Even when this guideline applies, the

district court, consistent with Booker, remains free to select a sentence above or 

below the applicable guideline range. But after the district court has selected the 

appropriate sentence—whether above, below, or within the guideline range—it 

Case: 18-15251 Date Filed: 08/07/2020 Page: 19 of 20
20

must adjust that sentence for time served on an undischarged term of imprisonment

if the requirements of section 5G1.3(b)(1) are satisfied.

The district court erred by failing to adjust Henry’s sentence as section 

5G1.3(b)(1) requires. The maximum adjusted sentence the district court could have 

imposed consistent with section 5G1.3(b)(1) was 96 months of imprisonment—12 

months less than the 108-month sentence Henry received. For that reason, we 

reject the argument that the error was harmless. On remand, the district court 

should determine whether the requirements of section 5G1.3(b)(1) are satisfied

and, if so, adjust Henry’s sentence accordingly.

IV. CONCLUSION

We VACATE Henry’s sentence and REMAND for resentencing.

Case: 18-15251 Date Filed: 08/07/2020 Page: 20 of 20