United States Court of Appeals
           For the Eighth Circuit
       ___________________________

               No. 18-2040
       ___________________________

            United States of America

       lllllllllllllllllllllPlaintiff - Appellee

                          v.

                 Kendrick Moody

      lllllllllllllllllllllDefendant - Appellant
        ___________________________

               No. 18-2041
       ___________________________

            United States of America

       lllllllllllllllllllllPlaintiff - Appellee

                          v.

                 Kendrick Moody

      lllllllllllllllllllllDefendant - Appellant
                      ____________

   Appeals from United States District Court
for the Eastern District of Arkansas - Little Rock
                 ____________
                             Submitted: April 19, 2019
                               Filed: July 19, 2019
                                  ____________

Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
                              ____________

SMITH, Chief Judge.

       Kendrick 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 court1
calculated 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.

       We 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


      1
      This case was heard by a magistrate judge, sitting by consent of the parties
pursuant to 28 U.S.C. § 636(c).
                                         -2-
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. 2006).

       A 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);2 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 defendant’s sentence).

      Because 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


      2
       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 the sole objective of the attempt.”
                                          -3-
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 not
harmless.

      Accordingly, we vacate Moody’s sentence and remand to the district court for
resentencing.
                      ____________________________




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