United States v. Henry, No. 18-15251

• Decision Date: 07 August 2020
• Docket Number: No. 18-15251
• Citation: 968 F.3d 1276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Jason HENRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

968 F.3d 1276

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher Jason HENRY, Defendant-Appellant.

No. 18-15251

United States Court of Appeals, Eleventh Circuit.

August 7, 2020

Thomas R. Govan, Jr., Sandra J. Stewart, Brett Joseph Talley, 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.

WILLIAM PRYOR, Chief Judge:

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

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 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).

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:

(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 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 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, 125 S.Ct. 738. If the Guidelines are advisory, the government contends, then section 5G1.3(b)(1) cannot have required the district court to adjust Henry's...