Sentencing Guidelines/Credit for Time Served – Based on Booker, a district court is not bound to grant a defendant a downward departure under USSG 5G1.3 based on time served on a state sentence for relevant conduct.
The Court vacated its prior panel opinion and substituted the following its place. Judge W. Pryor went from authoring the majority opinion to authoring a dissent.
Christopher Henry was sentenced to 108 months for possession of a firearm as a convicted felon. On appeal, Henry argued that the district court erred in failing to grant him a downward departure for time served under USSG 5G1.3(b)(1). Henry had already been serving time on a state burglary conviction when his federal prosecution started, but the burglary at issue was part of the “relevant conduct” at sentencing.
Under 5G1.3(b)(1), if a defendant is serving “an undischarged term of imprisonment resulting from another offense that is relevant conduct,” the district 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.” Here, Henry requested a 24-month downward departure based on his time served on the state sentence.
The district court declined to grant the requested departure, and the Eleventh Circuit affirmed. The Court rejected Henry’s argument that 5G1.3(b)(1) was binding notwithstanding Booker. The Court held that “all guidelines are advisory” and the district court here did not err in declining to grant the requested downward departure since there was evidence that Henry was armed during three of his burglaries and he was previously convicted of assault in addition to ten burglaries.
Judge W. Pryor dissented. First he argued that the majority’s decision was contrary to prior panel precedent in United States v. Knight, where the Eleventh Circuit vacated a defendant’s sentence based on the district court’s failure to apply 5G1.3(b). Judge Pryor also noted other Eleventh Circuit cases where other Guidelines had been held to be mandatory notwithstanding Booker. As such, Judge Pryor argued that 5G1.3(b) and that the sentencing court committed reversible error in failing to apply the downward departure for Henry’s time served on the state case.
On appeal from the Middle District of Alabama
Opinion by Grant, joined by Antoon (by designation from M.D. Fla)
Dissent by W. Pryor
Click here to read the opinion.