Alternative-Sentence Harmlessness for § 5G1.3 Concurrency Disputes and No Plain Allocution Error When the Court Only Announces an Intent to Run Consecutively

1. Introduction

Case: United States v. Andrew Francois Martin (11th Cir. Mar. 5, 2026) (unpublished, “NOT FOR PUBLICATION”).
Parties: United States (Plaintiff-Appellee) v. Andrew Francois Martin (Defendant-Appellant).
Posture: Martin appealed a federal sentence imposed after a guilty plea to conspiracy to commit Hobbs Act robbery, challenging the district court’s decision to run the federal term consecutively to an undischarged Florida sentence arising from a separate robbery.

Core issues: (1) Whether the district court erred in declining to apply U.S.S.G. § 5G1.3(b) (concurrent sentencing when the undischarged term resulted from “relevant conduct”); and (2) whether Martin was denied the right of allocution because the court stated—before allocution—that it intended to impose a consecutive sentence.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held that even if the district court erred in concluding that the Florida robbery was not “relevant conduct” (and thus § 5G1.3(b) did not apply), any error was harmless because the court made an explicit alternative-sentence statement that it would impose the same sentence anyway, and the resulting consecutive sentence was substantively reasonable under 18 U.S.C. § 3553(a).

The court also rejected the allocution claim on plain-error review: the district court did not “impose” sentence when it announced its intent to run the term consecutively, and Martin in fact allocuted before the court imposed the sentence. In the absence of published authority deeming this sequence erroneous, any error was not “plain.”

3. Analysis

3.1. Precedents Cited

  • Setser v. United States, 566 U.S. 231 (2012): Confirmed judicial discretion to select concurrent or consecutive sentences relative to other proceedings, including state sentences. The panel used Setser to frame concurrency as a discretionary choice under 18 U.S.C. § 3584(a), with the Guidelines providing advice rather than a mandate.
  • United States v. Henry, 1 F.4th 1315 (11th Cir. 2021): Central to the court’s treatment of U.S.S.G. § 5G1.3(b). Henry requires district courts to consider § 5G1.3 when the defendant is serving a state sentence, but emphasizes that the Guidelines remain advisory—so even a “shall run concurrently” directive in § 5G1.3(b) does not eliminate sentencing discretion after considering § 3553(a).
  • United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): Provided the harmless-error pathway. Under Keene, appellate courts need not decide a disputed Guidelines question when (1) the district court states it would impose the same sentence absent the alleged error, and (2) the sentence is substantively reasonable.
  • United States v. Goldman, 953 F.3d 1213 (11th Cir. 2020): Refined Keene into a two-part test (alternative sentence statement + substantive reasonableness). The panel relied on Goldman to justify bypassing the “relevant conduct” dispute.
  • Gall v. United States, 552 U.S. 38 (2007): Supplied the abuse-of-discretion framework and “totality of the circumstances” approach to substantive reasonableness review.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Provided the “definite and firm conviction” standard for finding a clear error of judgment in weighing § 3553(a) factors.
  • United States v. Gruskho, 50 F.4th 1 (11th Cir. 2022): Reiterated that district courts may assign greater weight to some § 3553(a) factors (even a single factor) than to others.
  • United States v. Moran, 778 F.3d 942 (11th Cir. 2015): Supported the principle that a court may vary based on § 3553(a) using conduct already considered in the guidelines calculation.
  • United States v. Owens, 96 F.4th 1316 (11th Cir. 2024) and United States v. Wilson, 788 F.3d 1298 (11th Cir. 2015): Authorized consideration of uncharged conduct at sentencing if proven by a preponderance of the evidence, and explained its relevance to multiple § 3553(a) factors (history/characteristics; deterrence; protection of the public; respect for law).
  • United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002) and United States v. George, 872 F.3d 1197 (11th Cir. 2017): Defined allocution and established that failure to allow allocution before imposing sentence requires vacatur and remand. The panel distinguished those cases on the facts and, critically, on the plain-error posture.
  • United States v. Corbett, 921 F.3d 1032 (11th Cir. 2019) and United States v. Lejarde-Rada, 319 F.3d 1288 (11th Cir. 2003): Provided the plain-error framework and the requirement that an error be “plain,” typically meaning clearly established by binding precedent.
  • United States v. Dimitrovski, 782 F.3d 622 (11th Cir. 2015): Set out the standards of review for Guidelines interpretation/application (de novo) and factfinding (clear error).
  • United States v. Nattiel, No. 24-10954, 2026 WL 22065 (11th Cir. Jan. 5, 2026) (unpublished): Referenced for background detail about related robberies; not used as a controlling legal rule.

3.2. Legal Reasoning

A. Concurrency vs. Consecutivity and the Role of § 5G1.3(b)

The statutory baseline is 18 U.S.C. § 3584(a), which authorizes a sentencing court to run a federal term concurrently or consecutively to an undischarged term. Against that backdrop, U.S.S.G. § 5G1.3(b) recommends concurrency when the undischarged term “resulted from another offense that is relevant conduct to the instant offense of conviction” (as defined by U.S.S.G. § 1B1.3).

The district court concluded the Florida “Daytona Beach robbery” was not relevant conduct to the charged federal conspiracy (which it characterized as a conspiracy “to steal from drug dealers”), viewing the Daytona Beach robbery as spontaneous and targeting a perceived wealthy victim rather than as part of the charged drug-robbery scheme. On that view, § 5G1.3(b) “just doesn’t apply.”

On appeal, the panel declined to decide whether that “relevant conduct” conclusion was right or wrong because it applied the Keene/Goldman harmlessness approach: the district court explicitly stated that it would impose the “exact same sentence” regardless of any potential Guidelines error, and the appellate court found the resulting sentence substantively reasonable under § 3553(a).

B. Substantive Reasonableness and the “Alternative Sentence” Safety Valve

Having accepted the district court’s alternative-sentence statement as satisfying the first prong of Goldman, the Eleventh Circuit focused on whether 210 months consecutive was substantively reasonable.

The panel emphasized that the district court:

  • Conducted an extensive § 3553(a) analysis, emphasizing seriousness of the offense conduct and repeated violence, specific and general deterrence, protection of the public, and respect for law.
  • Considered Martin’s participation in multiple robberies involving firearms and shootings, and also considered uncharged conduct—most notably, the killing of Tiara Register—found by a preponderance of the evidence, as permitted by United States v. Wilson and United States v. Owens.
  • Considered disparity concerns, imposing less than the statutory maximum and noting differences between Martin and codefendants (including his guilty plea).

In short, the panel treated the consecutive structure not as a mechanical product of § 5G1.3(b), but as a discretionary choice supported by the district court’s § 3553(a) findings and permissible consideration of uncharged conduct.

C. Allocution: “Intent” Announcement vs. “Imposition” of Sentence

Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) requires that the court address the defendant and permit allocution before imposing sentence. Under United States v. George, if sentence is imposed first and allocution is denied, vacatur is required.

Martin’s argument was narrower: he claimed allocution was ineffective because the court announced—before allocution—that it would run the sentence consecutively. The Eleventh Circuit rejected this on plain-error review for two key reasons:

  1. Factually, the district court had not yet “imposed” sentence when it stated its intent; Martin and counsel later addressed § 3553(a), and Martin allocuted before the formal pronouncement of sentence.
  2. Legally, Martin identified no published binding authority holding that a pre-allocution statement of intent regarding consecutivity violates Rule 32. Under United States v. Lejarde-Rada, without such clear authority, any error is not “plain.”

3.3. Impact

Although unpublished and not binding precedent, the opinion illustrates several practical points likely to influence sentencing litigation in the Eleventh Circuit:

  • § 5G1.3 disputes may be difficult to win on appeal when the record contains a clear alternative-sentence statement. The decision underscores the importance of the Keene/Goldman framework: if a district judge expressly states that the same sentence would be imposed regardless of the Guidelines dispute, the appellate battleground shifts to substantive reasonableness.
  • District courts can “route around” concurrency recommendations through § 3553(a). Consistent with United States v. Henry, even if § 5G1.3(b) recommends concurrency, a court may impose consecutivity as an exercise of discretion—so long as the court considers the policy statement and explains the § 3553(a) basis.
  • Uncharged conduct remains a powerful driver of sentence structure and length. The court’s approval of considering uncharged conduct (proven by a preponderance) aligns with United States v. Owens and United States v. Wilson, and highlights how such findings can support not only an upward variance but also the decision to make the sentence consecutive.
  • Allocution claims are highly sensitive to preservation and timing. The opinion signals that defendants should object contemporaneously if they believe the court’s sequencing or comments render allocution meaningless. Absent objection, plain-error review—and the need for published authority—creates a steep appellate climb.

4. Complex Concepts Simplified

  • “Relevant conduct” (U.S.S.G. § 1B1.3): Conduct outside the exact offense of conviction that is sufficiently connected (e.g., same course of conduct or common scheme/plan) to be treated as part of the sentencing picture. If a prior state sentence is for “relevant conduct,” § 5G1.3(b) typically recommends concurrency to avoid double-counting punishment.
  • U.S.S.G. § 5G1.3(b): A Guidelines policy that aims to coordinate federal and state sentences when they punish overlapping behavior. Even though it uses “shall,” it is advisory after Booker and, in this circuit, explicitly treated as advisory in United States v. Henry.
  • “Keene statement” / alternative sentence: A district judge’s on-the-record statement that the same sentence would be imposed even if a disputed Guidelines issue were decided the other way. This can make a potential Guidelines error harmless if the ultimate sentence is substantively reasonable.
  • Allocution: The defendant’s personal right to speak to the judge before sentence is imposed (Rule 32). A complete denial ordinarily requires a remand (United States v. George), but here the defendant did speak before the final sentence, and the complaint was about a preliminary statement of intent.
  • Plain-error review: If an issue wasn’t raised below, the defendant must show a clear (plain) legal error that affected substantial rights and seriously undermined the proceedings’ integrity. Without binding precedent directly supporting the claim, courts often find no “plain” error.

5. Conclusion

United States v. Andrew Francois Martin affirms a consecutive federal sentence by relying on two stabilizing appellate doctrines: (1) the Keene/Goldman harmless-error approach when a district court announces an alternative identical sentence and the sentence is substantively reasonable; and (2) strict plain-error limits on allocution challenges where the defendant ultimately allocutes before the formal imposition of sentence and no published authority clearly deems the court’s sequencing unlawful.

The decision’s broader significance lies less in resolving “relevant conduct” boundaries for § 5G1.3(b) and more in demonstrating that, in practice, sentencing outcomes may hinge on § 3553(a) findings (including uncharged conduct proven by a preponderance) and on whether the district court builds an appellate-proof record through an explicit alternative-sentence statement.