United States v. Martinez Rodriguez, 508 F. App'x 573

Martinez Rodriguez pleaded guilty to illegal reentry after deportation (8 U.S.C. §1326) and to failing to register as a sex offender (18 U.S.C. §2250).
The district court calculated a guidelines range of 33–41 months on the two counts and sentenced him to 40 months on each count, to be served concurrently.
The eight-level increase for a sex offense against a minor was included as a specific offense characteristic under §2A3.5(b)(1)(C), based on the state court sexual-abuse conviction.
The court treated whether §5G1.3(b) applied as discretionary guidance and ordered 25 months of the federal term to run consecutively to the undischarged state sentence.
Martinez argued the state offense should be treated as relevant conduct and thus support concurrent sentencing under §5G1.3(b).
The panel held that any error in applying §5G1.3(b) was harmless because the court would have imposed the same sentence regardless, and the guidelines were only advisory.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §5G1.3(b) applied to make sentences concurrent	Martinez argues the state offense was relevant conduct and should have concurrent sentencing	Martinez maintains the court erred by treating §5G1.3(b) as non-applicable or as discretionary	Harmless error; same sentence would have been imposed

U.S. v. Henson, 550 F.3d 739 (8th Cir. 2008) (harmless error when advisory guidance does not influence result)
U.S. v. Lone Fight, 625 F.3d 523 (8th Cir. 2010) (§5G1.3(b) advisory; district court retains discretion)
U.S. v. Pietrantonio, 637 F.3d 865 (8th Cir. 2011) (failure-to-register as continuing offense; relevant conduct considerations)
U.S. v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009) (relevant conduct concepts for specific offense characteristics)