Submitted: April 19, 2019
Appeals from United States District Court for the Eastern
District of Arkansas - Little Rock
SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
Moody pleaded guilty to having a prohibited object in prison,
in violation of 18 U.S.C. § 1791(a)(2), on two separate
occasions. The district courtcalculated an advisory Guidelines
range of four to ten months' imprisonment for each
offense. Moody requested concurrent four-month sentences. The
court believed that it lacked authority to impose the
sentences concurrently and rejected Moody's alternative
suggestion of two consecutive two-month terms before
sentencing him to two consecutive four-month terms. Moody
appeals, claiming the district court erred in concluding it
lacked authority to run the four-month sentences
concurrently. We agree and vacate Moody's sentence and
remand to the district court for resentencing.
review Moody's claim of legal error de novo. See
United States v. Mitchell, 476 F.3d 539, 543 (8th Cir.
2007). "When a district court does not consider an
argument because it is unaware of its power to do so . . . a
remand is appropriate." United States v.
Roberson, 517 F.3d 990, 995 (8th Cir. 2008). A district
court's failure "to understand the scope of its
authority and discretion at sentencing" is considered a
significant procedural error. United States v.
Tabor, 531 F.3d 688, 692 (8th Cir. 2008). When a
defendant objects to such an error at sentencing, we are
required to reverse the sentence unless the error was
harmless. Id. "An error is harmless only if we
are convinced that the error did not affect the district
court's sentencing conclusion." Id. The
government, as the "beneficiary of the error,"
bears the burden of demonstrating the district court would
have imposed the same sentence absent the error. See
United States v. Thorpe, 447 F.3d 565, 569 (8th Cir.
sentencing judge imposing multiple terms of imprisonment at
the same time may impose sentences concurrently unless
consecutive terms are mandated by statute. 18 U.S.C. §
3584(a); see also Setser v. United States,
566 U.S. 231, 236 (2012) ("Judges have long been
understood to have discretion to select whether the sentences
they impose will run concurrently or consecutively with
respect to other sentences that they impose, or that have
been imposed in other proceedings . . . ."). In this
case, Moody pleaded guilty to twice violating 18 U.S.C.
§ 1791, which requires an inmate's custodial
punishment for contraband possession be imposed
"consecutive to the sentence being served by such inmate
at the time the inmate commits such violation." 18
U.S.C. § 1791(c). This language limits the sentencing
court's discretion to impose the sentences concurrently
with Moody's undischarged term of imprisonment, but it
does not deprive the court of its authority to impose the two
§ 1791 sentences concurrently with each other. The
district court's mistaken belief to the contrary
constituted a significant procedural error. Accord United
States v. Joseph, 716 F.3d 1273, 1280-81 (9th Cir. 2013)
(holding that a district court's failure to recognize its
authority to impose concurrent sentences for multiple
violations of § 1791 was plain error warranting reversal
because the error potentially increased the length of
we find that significant procedural error occurred, we must
reverse unless the error was harmless. The government argues
it was harmless because the court acted within its discretion
by ordering consecutive sentences, appropriately considered
the § 3553(a) factors to justify the sentences, and
imposed within-Guidelines sentences after correctly
calculating the advisory Guidelines range for each offense.
Although we acknowledge both the court's authority and
its justifications for the sentence imposed, we are uncertain
"that the court would have arrived at the same term of
imprisonment absent the procedural error." United
States v. Mulverhill, 833 F.3d 925, 931 (8th Cir. 2016)
(internal quotations omitted). We find no support in the
record for the government's contention that the court
intended to sentence Moody to a total of "eight
months' imprisonment, regardless of whether that outcome
was reached by consecutive or concurrent sentences."
Appellee's Br. at 7. The sentencing court stated that it
could not agree to two-month consecutive sentences, but it
chose a sentence at "the very low end of the [G]uideline
range on each count" and emphasized that its decision
was "in compliance with the statute and the [S]entencing
[G]uidelines." Tr. of Ct. Proc. at 16, United States
v. Moody, No. 4:18-cr-00120 (E.D. Ark. June 7, 2018),
ECF No. 14. When Moody pressed the court for concurrent
sentences, the sentencing court replied, "The law-I just
don't-the law just won't allow it" and concluded
that "the statute trumps the [G]uidelines. And the
statute requires it to be consecutive." Id. at
17. On this record, we find that the sentencing court's
error affected its sentencing conclusion and therefore was
we vacate Moody's sentence and remand to the district
court for resentencing.
This case was heard by a magistrate
judge, sitting by consent of the parties pursuant to 28
U.S.C. § 636(c).
Though not at issue here, §
3584(a) also places a limit on the sentencing court's
discretion by requiring concurrent sentences when
the terms are "for an attempt and for another offense
that was ...