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                                                                                     [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 18-15251
                                ________________________

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



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,
                                              versus

CHRISTOPHER JASON HENRY,

                                                                        Defendant-Appellant.

                                ________________________

                       Appeal from the United States District Court
                           for the Middle District of Alabama
                              _______________________

                                       (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.
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      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.

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, 

, 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.



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      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



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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).




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         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, 

, 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:



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             (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[.]

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.

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, 

, 1338 (11th Cir. 2017); see also United States v.

Knight, 

, 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




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

.

      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., 

, 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



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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. 

. 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, 

, 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, 

,

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, 

, 1312 (11th Cir. 2019) (W. Pryor, J., respecting the denial of



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rehearing en banc). But sometimes idioms that are accurate in one respect “may be

erroneous or inadequate in other respects.”

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, 

,

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

added)); United States v. De La Cruz, 

, 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.




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      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 

–27. The Court held that this practice

violated the Sixth Amendment right to a jury trial.

& 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. 

. The Court also invalidated the provision that mandated de novo appellate

review of departures from the guideline range, 18 U.S.C. § 3742(e). 

. 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.

      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




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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, 

, 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, 

, 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, 

, 391 (1989); see also

(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



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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.”

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.”

Booker held

invalid the provision that made the guideline range mandatory

did not affect section 3742(f), which requires federal courts to correctly apply the

Guidelines in all other respects. See United States v. Crawford, 

,

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.

(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 

–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, 

, 1219 (11th Cir. 2009).



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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, 

,

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.”

.

      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, 

, 49–50 (2007). But if it does not, then Booker provides

no basis to disregard the mandatory language of the guideline.




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

United States v. Helm, 

, 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.”

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, 

, 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.

added). In short, this guideline



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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.

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.

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.”

that point, calculation of the guideline

range is complete. See 

. 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.

court applies that

requirement only when it “impose[s]” sentence

after it has

calculated the guideline range, determined any sentencing requirements, and

selected a sentence based on the statutory factors, see

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

States v. Burke, 

, 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.”

adjusted for the

6 months already served, achieves a total punishment of 13 months.

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

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



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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, 

, 896–97 (8th Cir. 2011); United States v.

Armstead, 

, 784 (9th Cir. 2008); United States v. Lane, 

,

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. 

; accord 

; 

–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, 

, 1963 (2018); 

; Irizarry v. United States, 

, 715 (2008); 

. 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 

–

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



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“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 

(emphasis added).

      The amended guideline range in a sentence-modification proceeding carries

a significance that does not attach to the original guideline range. Unlike at

sentencing, where the guideline range is advisory, a district court in a sentence-

modification proceeding is forbidden to reduce the defendant’s sentence beneath

“the minimum of the amended guideline range” except in one limited circumstance

not relevant here. U.S.S.G. § 1B1.10(b)(2); see also Dillon v. United States, 

, 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.

, 1340 (emphasis added).

      Although we may have doubts about whether Gonzalez-Murillo was correct

on this point, see 

–44, the decision binds district courts to



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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 sentence-

modification proceeding. 

. 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. 

.

      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 

. 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



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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.




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