In United States v. Henry, No. 18-15251 (June 21, 2021) (William Pryor, Grant, Antoon (MD Fla)), the Court vacated the panel opinion upon a petition for rehearing by the government and affirmed the defendant’s sentence.

Contrary to the panel’s original opinion, the panel now held that USSG 5G1.3 is advisory, not mandatory.  After Booker, all Guidelines are advisory.  There is no distinction between Guidelines that affect the sentencing “range” and those that affect the “kind of sentence” available.  While the district court needed to consider 5G1.3(b) when determining the sentence recommended by the Guidelines, it was then free to exercise its discretion to impose the sentence it deemed appropriate under 3553(a).  And, in any event, because the district court considered 5G1.3 and said it would impose the same sentence regardless, any error was harmless.

Chief Judge Pryor, author of the original panel opinion, dissented.  Elaborating on his original opinion, he maintained that, under circuit precedent, 5B1.3(b) is mandatory, and that precedent was correct because it involves the imposition of the sentence, not the calculation of the guideline range.  He also disagreed that any error here was harmless because 5G1.3(b) involves a back-end adjustment to the sentence.