United States v. Brian Mikkelson
24-11393
| 11th Cir. | Jul 15, 2025Background
- Brian James Mikkelson was charged with two counts of assault in aid of racketeering under 18 U.S.C. § 1959(a)(3), related to violent attacks against fellow members of the white supremacist group, the Unforgiven.
- Mikkelson pled guilty to both counts without a plea agreement and admitted his role in violent assaults to enforce internal gang discipline.
- The Presentence Investigation Report (PSI) calculated an offense level of 27 and a criminal history category VI, resulting in a guideline sentencing range of 130-162 months; the statutory maximum was 20 years per count.
- The district court imposed an upward variance, sentencing Mikkelson to 192 months on each count, citing the brutality of the offenses and his extensive criminal record, with sentences to run concurrently.
- Mikkelson appealed, arguing procedural error in calculating his criminal history and that his sentence was substantively unreasonable given mitigating personal circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Criminal history calculation (procedural) | Court erred counting state offense already prosecuted federally | Even if mistaken, score would not affect sentencing range | No reversible procedural error; category VI unchanged |
| Substantive reasonableness of sentence | Sentence too high given mitigating factors, not justified | Violence and history justify upward variance | Sentence is substantively reasonable; not excessive |
| Consideration of sentencing factors | Court improperly weighed factors (focused on disregard for law) | Court properly considered all § 3553(a) factors | Court had discretion; considered all factors; no abuse |
| Sufficiency of upward variance justification | Justification for major upward variance inadequate | Justification appropriate given severity, record, deterrence | Degree of variance justified by compelling circumstances |
Key Cases Cited
- United States v. Butler, 39 F.4th 1349 (11th Cir. 2022) (discusses court discretion in weighing § 3553(a) sentencing factors and upholding upward variance)
- United States v. Early, 686 F.3d 1219 (11th Cir. 2012) (standard for vacating upward variance: clear error of judgment in weighing § 3553(a) factors)
- United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007) (district court need not discuss every mitigating fact to show consideration for sentencing factors)
- United States v. Riley, 995 F.3d 1272 (11th Cir. 2021) (sentence well below statutory maximum viewed as reasonable)
- United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009) (upward variance based on need to protect society is permissible)