United States v. Henry

• Decision Date: 21 June 2021
• Docket Number: No. 18-15251,18-15251
• Citation: 1 F.4th 1315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Jason HENRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

1 F.4th 1315

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher Jason HENRY, Defendant-Appellant.

No. 18-15251

United States Court of Appeals, Eleventh Circuit.

June 21, 2021

Thomas R. Govan, Jr., Sandra J. Stewart, Brett Joseph Talley, U.S. Attorney's Office, Montgomery, AL, Sonja Ralston, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, U.S. Attorney Service-Middle District of Alabama, U.S. Attorney's Office, Montgomery, AL, for Plaintiff-Appellee.

Mackenzie S. Lund, Christine A. Freeman, Cecilia Vaca, Federal Defender Program, Inc., Montgomery, AL, for Defendant-Appellant

Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and ANTOON,^* District Judge.¹

GRANT, Circuit Judge:

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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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.

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-in-possession 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 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 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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. 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, 125 S.Ct. 738.

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 a jury beyond a reasonable doubt." Id. at 244, 125 S.Ct. 738 (citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 125 S.Ct. 738. 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 Congre...