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United States v. Jesus Rosales-Bruno
789 F.3d 1249
11th Cir.
2015
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Docket

*1 complaint it was unclear from the what

disability alleging, and wheth- Surtain was Hamlin ever believed her to have

er

disability. Surtain failed correct these notice, being put even after

deficiencies

thus the District Court did err

dismissing disability-discrimination her

claim.

IV. sum, we AFFIRM the District judgment

Court’s denial of default and dis- disability-discrimination

missal of Surtain’s

and FMLA retaliation claims. We VA- the District

CATE Court’s dismissal with

prejudice of Surtain’s race-discrimination claims,

and FMLA interference as well as judgment

its denial of default as to the

race-discrimination claim and REMAND proceedings

for further consistent with opinion.

this America,

UNITED STATES of

Plaintiff-Appellee, ROSALES-BRUNO,

Jesus

Defendant-Appellant.

No. 12-15089. Appeals,

United States Court of

Eleventh Circuit.

June *2 Herman, Ferrer,

Carol A. Wifredo Schultz, Mary Salyer, Kathleen Anne Ruth Widlanski, Benjamin Attorney’s U.S. Of- fice, Miami, FL, Cooperstein, Theodore Office, Pierce, FL, Attorney’s Fort U.S. sentence was 60 months above high Plaintiff-Appellee. end of Rosales-Bruno’s revised range but 33 months statutory below the Caruso, Michael Federal Public Defend- maximum of 120 imprisonment. months er, Office, Federal Public Defender’s Mia- mi, FL, sole issue in this Peacock, appeal is Fletcher Federal whether Public *3 Office, Pierce, FL, Defender’s Fort that sentence is substantively for unreason- Defendant-Appellant. able.

I. 4, 2007, August On Rosales-Bruno at- girlfriend, tacked his Rodriguez. Edith CARNES, ED Judge, Before Chief stove, He shoved her a into and when she WILSON, Judge, Circuit tried to punched leave he in her the back CORRIGAN,* Judge. District and caused her to fall. When she fell he grabbed by her pinned the face and CARNES, her ED Judge: Chief between two beds. He then took out a This is the second appeal to come before cigarette lighter and threatened to burn involving us a on Jesus her with it. Rosales-Bruno was arrested Rosales-Bruno because of his conviction for that violent conduct. illegally reentering the United States in violation of 8 U.S.C. later, Two months in October appeal original first we vacated his sen- bond, while he out on Rosales-Bruno concluding tence after the district court Rodriguez attacked again. After pulling in finding prior had erred that his Florida their daughter 18-month-old out of her imprisonment conviction for false qualified arms, he punched Rodriguez at least five aas “crime of violence” conviction for en- times and forced her into his car. She purposes hancement under United States struggled managed escape, to but Ro- 2L1.2(b)(l)(A)(ii). down, sales-Bruno chased her threatened Rosales-Bruno, United States v. her, kill grabbed hair, to her by pulled (11th Cir.2012) (Rosales-Bruno 1017, 1024 out, some of it choking and started her I). That error had increased Rosales- with his arm. employees When at a near- advisory Bruno’s sentencing guidelines Rodriguez’s business heard screams for months, to70 and the district help, Rodriguez Rosales-Bruno released court had sentenced him to 87 months but girl took the little with him when he imprisonment. fled from the scene. remand, On the district court recalculat- In November an Indian River advisory ed Rosales-Bruno’s County, Florida court convicted Rosales- range without the crime of violence en- battery Bruno of assault and for the first hancement, which lowered to 27 Rodriguez, attack on sentencing him to months imprisonment. After considering days jail year fifteen probation. factors in 18 U.S.C. 3553(a), awaiting trial for however, battering While Rodri- up- the court varied time, guez from guidelines range, again ward im- second Rosales-Bruno posing an 87-month prison officer, term. That to report probation failed to his * da, Timothy Corrigan, Honorable J. sitting by designation. United States Judge District for the Middle District of Flori- categorically domestic-violence not a crime of violence required within complete

didn’t pay probation and didn’t fees. programs, meaning of that enhancement. He had result, the court issued April As pleaded guilty battery also in connection pro- for his violation of an arrest warrant with the same incident that led to the Possibly because Rosales-Bruno’s bation. but, imprisonment conviction for false charges arising trial for from the second opinion, battery we noted in our earlier scheduled for later attack was categorically under Florida law is not month, warrant was not imme- that arrest crime of violence either. See Rosales- diately Rosales-Bruno was con- served. I, (citing Bruno 676 F.3d at 1024 Johnson battery imprisonment and false victed of States, 133, 138-44, United U.S. attack. The court for the second sen- 1265, 1270-73, (2010)). S.Ct. 176 L.Ed.2d 1 jail him to six months and three tenced properly The district court did not consid- *4 later, A month years probation. of a Unit- battery er the conviction as a crime of Immigration Judge ordered that ed States purposes violence Rosales-Bruno, national, a Mexican be re- 2L1.2(b)(l)(A)(ii) § enhancement. Mexico, deported and he was on moved - At that hearing, first sentence Rosales- May objected alleged Bruno also to the facts Sometime Rosales-Bruno ¶ PSR, 30 of the which were taken from crossed the border back into the United police report filed in connection with way States in Arizona and then made his imprison- his arrest for the crimes of false back to Florida. March he was battery. ment and He asserted that the violating probation arrested for on the police report hearsay was and that it was April 2008 warrant. While he was cus- an inaccurate account of the leading events tody, Immigration and Customs Enforce- up hearsay objection to his arrest. His agents ment found that Rosales-Bruno challenged po- the court’s use of the illegally in the United States after was report’s lice facts purpose “for the of de- result; having deported. been As a he was termining whether imprison- [false indicted one count of illegal reentry ment] conviction a crime of violence.” following deportation, [was] in violation of 8 Although § he applicable penalty report U.S.C. asserted that the pro- statutory events, vision of which carried a maxi- not an accurate recitation of he mum sentence of 120 months. See 8 conceded that the district court could con- 1326(b)(1). § U.S.C. He pleaded guilty to police réport sider the “for the purpose of charge. that sentencing” except on the issue of 2L1.2(b)(l)(A)(ii) § whether the crime of At illegal his first for his applied. violence enhancement Specifical- conviction, reentry pre- Rosales-Bruno’s ly, depends he said: on what “[I]t investigation report calculated his considering. Court The Court could guidelines range as 70 to im- 87 months police review report] purpose for the [the prisonment. That in part resulted sentencing, purpose but not for the from a 16-level enhancement of Rosales- determining predicate whether the con- Bruno’s base offense level under U.S.S.G. viction is a crime of 2L1.2(b)(l)(A)(ii) violence.” The district § based on the PSR’s objec- court overruled Rosales-Bruno’s characterization of his 2008 Florida convic- tions and sentenced him to tion for 87 months im- imprisonment false as a conviction prisonment, top for a of his “crime of violence.” Rosales-Bruno objected enhancement, sentence, range. appealed to that He that chal- contending that imprisonment a false lenging conviction was the crime of violence enhancement imprisonment (3) received for his false need promote respect law, he had for the conviction. provide deterrence, the need to adequate (4) the nature and circumstances of the agreed with Rosales-Bruno’s con-

We (5) offense, present protect need to imprisonment false under tention the public. 3553(a)(1), See 18 categorically is not U.S.C. Florida law crime (a)(2)(A)-(C). I, violence. See Rosales-Bruno at 1022. We also decided that the record In determining that an 87-month' sen- did not establish Rosales-Bruno’s tence was appropriate, the district court imprisonment 2008 Florida false conviction placed particular emphasis Rosales- on. statutory had been under a alternative history. Bruno’s criminal At the resen- qualifies as a crime of violence for hearing, tence the court read for the rec- 2L1.2(b)(l)(A)(ii). purposes of Id. ord the descriptions PSR’s of several of reason, For that 1023-24. we vacated the prior Rosales-Bruno’s convictions. Those sentence and remanded the case to the descriptions detailed the crimes that led to district court for resentencing without the his 2007 convictions for battery assault and crime of violence Although enhancement. and his 2008 convictions imprison- for false we the court to directed consider the rec- ment battery. Finally, the court read ord and resentence Rosales-Bruno “in the PSR’s list of Rosales-Bruno’s driv- light factors,” of the 18 U.S.C. ing convictions, offense which included sev- “expressed] opinion no ... as what *5 eral DUI convictions. sentence would be appropriate.” now Id. at 1024. did not rule We out the court objected Rosales-Bruno the reimposing the same sentence on remand procedurally and substan long so as it was not on treating based tively unreasonable.1 He contended that imprisonment Rosales-Bruno’s false con- placed the court had emphasis” “too much

viction as a crime of violence under prior on his convictions imprison for false 2L1.2(b)(l)(A)(ii). § ment, assault, battery. for and for This is resentenced, Before Rosales-Bruno was appeal his of the sentence imposed on re the probation office amended the PSR and n mand. guidelines range recalculated his without the 16-level crime of violence enhance- II. ment. The result was a of 21 to 27 The district court’s task is to impose a so, months. Even the district court im- (1) adequately sentence that will “reflect posed before, the same sentence as relying (2) offense,” the seriousness of the “pro- 3553(a) § vary the factors to above the (3) law,” respect mote for “provide guidelines range by new 60 months. The (4) just punishment,” adequate “afford court did so after conducting a full resen- (5) deterrence,” “protect public from hearing, during pointed tence which it to (6) defendant,” further crimes of the and supporting several factors var- (1) provide § any iance under 3553: the defendant with needed history and (2) defendant, characteristics of the training and treatment in the most effec- were, procedural objections ("Any appellant Whatever his issue that an [us] wants to specifically clearly Rosales-Bruno has abandoned them not address should be Otherwise, raising appeal. Sapuppo them on v. All- identified in the brief.... the is- Co., 678, state properly preserved Floridian Ins. 739 F.3d 680 sue—even if at trial —will (11th Cir.2014) (issues abandoned.”) appeal (quotation not briefed on be considered marks abandoned); Now, result, omitted). are Access Inc. v. Air- Sw. As a substantive reasonable- Co., 1324, (11th Cir.2004) lines 385 F.3d appeal. ness is the issue in this 3553(a)(2). appropriate § To arrive at an 18 U.S.C. sen tive manner. tence, all that re- the district court must consider a holistic endeavor The task is 3553(a) applicable factors. court to consider a the .district quires Unit Shaw, (1) 1230, v. 560 F.3d ed States factors: the nature and variety of (11th Cir.2009). mean, (2) That does not how offense, the de- circumstances of ever, (3) give that it must all of the characteristics, history fendant’s Instead, (4) equal weight. factors the sentenc available, the kinds of sentences attach ing permitted ‘great court “is to sentencing guidelines range, applicable weight’ to one factor over others.” Id. (5) policy statements of the pertinent States, 38, (quoting v. Gall United U.S. (5) Commission, the need to 57, 600, 169 L.Ed.2d 445 S.Ct. victims, provide restitution to (2007)). The decision about how much (6) the need to avoid unwarranted sen- weight assign particular sentencing 3553(a). disparities. tencing Id. factor is “committed the sound discre clear, governing As the statute makes tion of the district court.” United States id., explained in an en and we have banc Williams, (11th opinion, advisory guidelines range Cir.2008) omitted). And, (quotation marks many but one of considerations that “if importantly, the sentence is outside the exercising court must take into account in range, the [reviewing] its discretion. See United may apply presumption not of unreason Irey, 612 States v. Gall, ableness.” 552 U.S. at 128 S.Ct. Cir.2010) (en banc). not at- “We have at 597. tempted specify any particular weight given that should be to the The abuse of discretion standard is review; is, instead, id., range,” rejected “any de novo deferen and we have that, reviewing tial. Because of when prescription regarding across-the-board abuse of discretion we will sometimes appropriate give deference to *6 Hunt, though “affirm the district court even Guidelines.” v. we United States 459 (11th 1180, Cir.2006). gone way would have the other had it F.3d 1184 been “We that, Irey, (quota our call.” 612 F.3d at 1189 subject decided instead to re- [have] omitted); also, reasonableness, e.g., for tion marks see sentencing view courts Ledford determine, 871, may' basis, Peeples, case-by-case on a Cir. 2010) Guidelines, (explaining that when weight give long reviewing the so ques as that an abuse of discretion “the relevant determination is made with refer- 3553(a) ence to the tion is not whether we would have come to remaining section fac- if deciding tors that the court same decision the issue in must also consider instance,” calculating the the first but instead “whether defendant’s sentence.” tenable, Irey, (quotation 612 F.3d at 1217 the district court’s decision was marks omitted). or, ‘in Supreme might say, ballpark’ per The we Court has held outcomes”). advisory Supreme that variances from missible Court guidelines reviewing can has instructed us that when sometimes be based on the sen- tencing out-of-guidelines sentence for reasonable judge’s disagreement with whether ness, 3553(a) may: a we guideline properly reflects the factors, a holding deviation, which indicates that the consider the extent of the but overly are not restrictive. See give must due deference to the [we] States, 85, Kimbrough v. United 552 U.S. district court’s decision that 105-09, 3553(a) 558, 572-75, factors, whole, justify S.Ct. 169 L.Ed.2d on a (2007). extent of the variance. The fact that the might reasonably experience.) have a appellate point, On related the Su- sentence was preme pointed concluded that different Court has out that district justify re- appropriate is insufficient courts so many “see more Guidelines cases court. versal of the district appellate than courts do.” Id. at omitted). at (quotation S.Ct. marks Gall, 51,128 S.Ct. at 597. U.S. Appellate courts see the sentences courts so give The reason we appealed. are District courts also see in making sentencing much discretion de- the ones that are not. they great cisions is that have advan- it tages appellate over courts when comes great advantages Given the sentencing. they One reason is that enjoy district courts when comes to de do it and we don’t. Because the district sentence, ciding proper it would be hearings, it is in court conducts sentence strange if we didn’t review the substantive position sentencing to make de- better reasonableness of the sentences under a than are. terminations See id. As deferential abuse of discretion standard. Supreme explained, Court has “[t]he See id. at 128 S.Ct. at 597. Although sentencing judge superior position is in a the deference we afford district courts in un- judge import to find facts and their unlimited, this area is not it is substantial. individual case” der be- Irey, 612 1191. We cannot —be evidence, cause he “sees and hears the cause the Supreme Court has held that we determinations, credibility has full makes presume must falling that a sentence not— knowledge gains insights of the facts and advisory guidelines outside the range is conveyed by the record.” Id. at Gall, unreasonable. See 552 U.S. at (quotation 128 S.Ct. at 597 marks omit- 128 S.Ct. at 597. If we did presume an ted). out-of-guidelines-range sentence was un reasonable, advisory guidelines would advantage Another that district courts advisory. not be That the guidelines are enjoy sentencing when it comes to is that reality only advisory they is made unmistak greater sentencing experi- have far ably clear the fact that in the most appellate judges, many ence than of whom year single have never recent for which data is sentenced defendant available (At single for a crime. the time resen- more than half —54%—of the sentences he Rosales-Bruno, tenced the district court in federal court were outside the judge twenty years had federal If guidelines range.2 sentencing outside Comm’n, 18,183 (24.5%) range. 2. See U.S. Statistical In- That included number *7 Packet, 2014, departed Fiscal Year Eleventh cases in which the court downward formation (2015). 12,894 (17.4%) According Circuit 11 tbl.8 guidelines range; to the Sen- from the Commission, 74,126 tencing of the cases cases in which the court varied downward 1,645 year, (1.1%) were sentenced in guidelines the 2014 fiscal range; from the 807 cases (2.2%) guide- in resulted sentences above the report depar- in which the indicated both a range. lines Id. That total included 343 ture and a variance downward from the (0.5%) imposed 6,068 cases in which the sentence (8.2%) guidelines range; in cases which departure guidelines involved a above the government “sponsored” guide- the a below 1,104 (1.5%) range; that involved a variance Sentencing lines sentence that the Commis- (0.2%) guidelines range; above the classify departure sion did not as either a or a departure involved a variance; both and a variance (0.6%) and 412 cases in which (0.1%) guidelines range; above the and 75 in guidelines there was a sentence below the Sentencing which the Commission could not but the Commission could guidelines determine whether the above sen- determine whether it resulted from vari- departure. tence resulted from a variance or a departure. ance or a Id. 38,364 (51.8%) In another of the cases the The total of all of these sentences that are (1,645, 2.2%) guidelines guidelines range was below the above the or Langston, ing a sen- courts. United States range made advisory guidelines the (11th Cir.2009). 1226, 1236 590 F.3d unreasonable, half of .substantively tence courts imposed in federal the sentences III. substantively unreasonable.3 would be im The sentence the district they of discretion the breadth spite In substantively un case is not posed this can courts and some- district given, are spirit the The court followed reasonable. by impos- their discretion times do abuse Supreme and the letter of the Court’s unrea- substantively is ing a sentence applicable precedent obeyed our States, 551 U.S. v. United sonable. Rita it considered all statutory provisions when 2456, 2466-67, 127 S.Ct. 3553(a) sentencing. at factors (“In (2007) sentencing, as in L.Ed.2d 203 weighing the corrected adviso addition to areas, at times make judges district other gave also ry guidelines range, the court times, At that are substantive. mistakes the other relevant weight to several of that are unrea- they impose will sentences (1) factors, the histo including: to correct courts exist sonable. Circuit (2) defendant, ry and characteristics of occur.”); they see also mistakes when such law, promote respect the need to (“We at 1165 believe that Irey, 612 F.3d (3) adequate deter provide the need to meant what it said Supreme Court (4) rence, nature and circumstances of about our opinion and elsewhere the Rita (5) crime, protect the need to sentencing mistakes. At duty to correct considering all of the other public. After time, recognize that our sub- the same 3553(a) factors, relevant is review of sentences deferential stantive they outweighed court was convinced that only to see if the district and that we look advisory range, guidelines the corrected by committing its discretion court abused Rosales- adequately capture which did not judgment.”). a clear error It history Bruno’s and characteristics. for that reason the district court var consid A district court abuses its range. guidelines from the ied imposes discretion and substan erable months above the only it The variance tively unreasonable sentence when major “(1) advisory range was a one. guidelines afford consideration to relevant fails to has forbidden us Supreme But the Court significant weight, that were due factors that a sentence outside presuming from (2) significant weight improper to an gives range is unreasonable. (3) factor, a clear or irrelevant or commits So, Gall, at 128 S.Ct. at 597. 552 U.S. considering prop judgment error of too, requiring us from has forbidden Irey, (quota er factors.” justify” “extraordinary circumstances to omitted). rarely Because that tion marks 47,' 128 S.Ct. at such a sentence. Id. “it the rare sentence that happens, omitted). (quotation marks substantively unreasonable.” Unit will be McQueen, 727 F.3d ed States v. supported the 60- The district court (11th Cir.2013). party challenging significant justifica- month variance with *8 showing tions, has the burden of that of Rosales-Bru- including, the facts in light is unreasonable of the The sentence the sentence no’s earlier violent crimes. 3553(a) record, factors, § months imposed the and the district court was 33 entire of 120 statutory the maximum deference afforded sentenc- below the substantial Comm’n, 2, (38,364, supra. range n. guidelines or 3. See U.S. and below the 51.8%) 40,009 (54.0%). See id. is months, is a favoring weight which consideration cant to an improper factor” by its resentencing reasonableness. See 8 U.S.C. though him as he prior had a 1326(b)(1); Gonzalez, § United States v. crime of violence conviction qualifying him (11th Cir.2008) (hold- 2L1.2(b)(l)(A)(ii) § for a enhancement de- ing that a violating 50-month sentence for spite our in holding Rosales-Bruno I that 1326(b)(1) § substantively U.S.C. was the Second, enhancement did not apply. part in because reasonable the sentence he contends that the district gave court statutory was below the well maximum weight unreasonable to his criminal histo- imprisonment). 120 months ry, which he asserts is not extensive enough to support a variance 60 months vary The district court’s decision up- to guidelines Third, above the range. he con- ward advisory guide- from the corrected tends that upward variance is unrea- range lines within its substantial dis- sonable because his case does not fall out- Regardless of cretion. whether we would side the illegal reentry heartland of cases. have done the same if thing we had been Irey, See 612 F.3d at 1182 (explaining sentencer, that the sentence was within a case falls “outside the heartland” when outer of the bounds district court’s sub- unusual, “there something [is] either about stantial discretion—“in ball- or defendant park permissible circumstances Irey, outcomes.” sur- crime,” rounding the omitted). that (quotation F.3d at 1189 warrants a marks sen- tence outside of the range). rv. valid; None of those contentions is none of Neither Rosales-Bruno nor the dissent supports them Rosales-Bruno’s position. has pointed any. precedent establishing A. an 87-month sentence for a crime this like one on a defendant with a Rosales-Bruno’s first contention is that history materially criminal to Ro- identical the district gave significant court weight to sales-Bruno’s is substantively unreason- improper by resentencing factor him as able. The cases which we have held though prior he still had a crime of vio- to be substantively sentences unreasonable lence purposes conviction for of U.S.S.G. materially are different from one. this 2L1.2(b)(l)(A)(ii). § This contention im- (citing the three decisions plicitly infra that the assumes district court had which we upward have vacated variance impose resentencing lower sentence at unreasonable); sentences as App’x B because the guidelines range, which is one (showing the twelve decisions which we 3553(a) factors, had been lowered. have vacated downward variance sentences The dissent makes that explicit, contention unreasonable). arguing that when the change be- position

Rosales-Bruno’s initial sentencing that his sen- tween and resentencing decrease, tence is substantively is advisory guidelines unreasonable based First, on three range, contentions. he con- court must decrease the tends that the district gave “signifi- defendant’s thinks sentence.4 dissent says 4. The dissent it has "little doubt that if varied on remand. The best evidence correctly Guidelines had been calculated of what the court would have done the first around, the first time would Rosales-Bruno advisory guidelines time around with an have sentenced been to months.” Dissent- 3553(a) of 21 to 27 months and the ing Op. nothing at 1280. There is all in the is, all, factors that exist in this case after what support speculation record it ais —and very range did very it with those groundless guess that is contradicted on remand. factors explanation why district court's careful *9 defendant, because, view, an error was com- anything in its the because that is so that the district demonstrate else would the first time. The dissent would mitted weight at all” to the adviso- “no gave court if hold that the district court In Dissenting Op. at 1278. ry guidelines. higher guide- that was within a view, the the evidence the dissent’s sentencing, initial it range lines at the advisory guide- the ignored district court impose a sentence within the correct- must strong by affirming range is so lines range on remand. See guidelines ed lower “no saying we are court the district in the Dissenting Op. (“Nothing at 1278 to enough be” reverse ever would evidence at initial sentenc- record Rosales-Bruno’s failing give enough to court for a district ing hearing suggests that the court viewed advisory guidelines. Id. at to the weight type Rosales-Bruno as the of defendant isn’t, aren’t. it and no we 1278. No an variance at' who warranted ”). words, advisory all.... other mandatory on remand. guidelines become court resentencing, At the district was involving the error required to correct States That is not the law. See United (ii) 2L1.2(b) (1)(A) enhancement, § to calcu- Booker, 220, 246, 125 S.Ct. U.S. error, range free of that guidelines late the (2005); Irey, L.Ed.2d 621 range. It and to consider that corrected 1183; Spencer F.3d at see also v. United required to consid- did so. The court States, 3553(a) 1141-42 Cir. § the other sentenc- weigh er and 2014) ing as well. It did so. And the “advisory every factors (noting the nature whether, required to determine court was provision guidelines” stating and sentencing judgment, in those other its judge that “a district cannot treat th[e] advisory outweighed the lower factors mandatory”). guideline[s] as As the Book range. judg- It did so. In the guidelines establishes, guidelines er decision district court experienced ment of the application provide their advice about sen 3553(a) factors, judge, espe- the other they it. Book tencing; do not control See cially history criminal Rosales-Bruno’s er, 757; Irey, at 543 U.S. 125 S.Ct. against girlfriend, his record of violence why change at 1183. That is in advisory guidelines range outweighed change guidelines range may lead to a proper 27 months sen- to require does not one. the sentence but months. tence was 87 advisory is that an position The dissent’s The consider the ad- must advisory becomes less visory making guidelines range the sen- if mandatory correctly it was not and more decision, only tencing but it is one of hearing. at the initial sentence calculated or so factors that the court must dozen Dissenting Op. why? at 1278-79. But Booker, take into account. See 543 U.S. Why appeal should the fact that it took an 757; 245, 125 S.Ct. at see also 18 U.S.C. get advisory guidelines and remand 3553(a). has been Supreme Court advisory range correct make the corrected clear that Guidelines are not “[t]he advisory guidelines range any less than Accordingly, consideration.... after if the district court had would have been argue giving parties opportunity both correctly begin calculated it to with? We they appropri- deem for whatever sentence remand cases like this one to correct ate, judge the district should then consider steps leading errors to the district all factors determine decision, punish court’s not to the sentence re- they support the court or the or reward whether government,

1259 Gall, quested by party.” 552.U.S. at 49- show that the district court thought that 50,128 at 596. S.Ct. appropriate sentence in view of all of the facts and circumstances was 87 exactly That is what the district months. At the initial sentencing, no vari- in resentencing court did Rosales-Bruno. ance was necessary to reach appropri- correctly It advisory recalculated the ate sentence. At the resentencing, after guidelines range, gave parties it both reconsidering everything in light of the opportunity argue to they for the sentence guidelines new range, the court concluded thought appropriate, and it then consid that an 87-month was still the sentence 3553(a) § the remaining sentencing ered appropriate light sentence in all of in deciding factors what the sentence circumstances, facts and why which is should be. The court exercised its author varied upward to that same sentence. The ity assign weight heavier to several goal of sentencing is not to change the sentencing other assigned factors than it sentence in lockstep changes with in the guidelines range. Nothing to the requires advisory guidelines range “impose but to sentencing give advisory sufficient, guidelines range greater as much but not weight as it than 3553(a) gives any necessary, § comply other factor or with purposes combi set Shaw, 3553(a)(2) nation factors. See 560 forth F.3d at [§ 18 ].” U.S.C. 3553(a). (noting sentencing 1237 that a court “is The district court did that. permitted great to attach weight” to cer factors)

tain (quotation omitted); marks Gall, see also 552 U.S. at at S.Ct. ruling contention that out the Williams, 600; 526 F.3d at 1322. 2L1.2(b)(l)(A)(ii) required enhancement a sentence guidelines within the wrong A sentence’s guide- variance outside the for another reason. When it comes to range, downward, lines whether upward or sentencing, particularized facts about the represents a district judgment court’s Gall, defendant matter. See at U.S. the combined force of the other 54, 128 at (noting S.Ct. that “the factors are entitled to greater weight than ” unique of the defendant’s guidelines range. Otherwise, situation there facts provided support would never be for the district every variances. Yet court’s year determination that guidelines thousands of sentences outside a below sen See, guidelines are upheld. appropriate) (emphasis added); tence was e.g., Comm’n, U.S. Sentencing Kimbrough, Statistical at U.S. 128 S.Ct. at Packet, Fiscal Year (holding that the district court did not Information (2015) Eleventh Circuit 11 (showing tbl.8 by abuse its imposing discretion a below that in year fiscal 2014 district im- courts guidelines sentence where it “properly 20,000 posed more than sentences outside homed in on the particular circumstances range for reasons other case”) (emphasis [the defendant’s] add departure). than a This is one of them. ed); Pugh, United States v. (11th Cir.2008) (noting that we must points

The dissent “[njothing out that vacate a sentence and remand for resen- the record at Rosales-Bruno’s initial sen- tencing “if we are left with the definite tencing hearing suggests the court firm conviction that the viewed district court ... type Rosales-Bruno as the of de- fendant who a sentence that outside arriv[ed] warranted an vari- lies (cid:127) all, ance let alone significant such a reasonable sentences dictated ”) No, added) one.” Dissenting Op. at 1280. (emphasis but the the case facts of record and result of (quotation omitted); the initial marks Irey, See also *11 (“In court hearing, first sentence the district reviewing the 1189-90 at

612 F.3d sentence, must, underlying review the facts his earli- we could of reasonableness us, deciding proper con- on the has instructed er convictions Court Supreme and circum- in this case. totality sentence for his conviction sider facts of added). stances”) (emphasis is what the court did. Which original Rosales-Bruno’s We vacated to the assigning weight government had sentence because weighing part factors as § showing from carry failed to its burden of should) (and may consider a court process, documents, in- the state court individualized, specific facts particularized, actual stead of from Rosales-Bruno’s guidelines label that merely not and conduct-itself, false im- criminal that his The put on the facts. can be Florida law prisonment conviction under individualized, particular on the did focus fit definition of categorically within the Ro ized, resentencing specific facts required applica- for “crime of violence” against argument His sales-Bruno. 2L1.2(b)(l)(A)(ii) guidelines § tion of the does not focus on sentence he received I, Rosales-Bruno enhancement.6 See them. (citing Shepard v. United the facts about Rosales-Bruno’s None of States, 1254, 161 544 U.S. 125 S.Ct. or his extensive reentry conviction illegal (2005)). L.Ed.2d 205 This Court never the first history changed between criminal meaning and given plain said—and sentencing. only change second .and understanding common of the word “vio- for false his earlier conviction was that say lence” we would never what Ro- —that categorized as could not be imprisonment actually did to Edith Rodri- sales-Bruno conviction for the a “crime of violence” not guez separate on two occasions was the U.S.S.G. purposes limited and more violence. violence 2L1.2(b)(l)(A)(ii) enhancement, see Ro- § 1022-24, attacked Edith Rodri- I, Rosales-Bruno no sales-Bruno was, her into a guez and shoved stove. When actually and matter how violent grabbed her adjusted escape, she tried he in a lower change resulted her two pinned face and down between advisory guide- offense level and a lower lighter cigarette beds and took out his and considered range.5 lines The district court threatened to burn her with it. Then But also con- range. the correct the court charges while out on bond because of the unchanged underlying facts his sidered the attack, that violent Ro- assault, stemming from impris- false prior convictions offenses, again. onment, Rodriguez sales-Bruno attacked battery and separate two pulling daughter After their 18-month-old including offenses some driving a dozen Rodriguez at punched conceded at the out of her arms he DUIs. As Rosales-Bruno I, applied “single, the "modi contain indivisible set elements In Rosales-Bruno categorical approach” broadly correspond- fied to determine sweeping more than the imprisonment convic false Rosales-Bruno’s (quo- ing generic 133 S.Ct. at offense.” Florida Statute 787.02 was not tion under That, course, omitted). does tation marks guidelines purposes. of violence” for "crime change inapplicability of F.3d at 1020. Our decision in Ro See 676 enhancement, 2L1.2(b)(1)(A) nor does it Supreme predated the Court’s sales-Bruno I change underlying the facts Rosales-Bruno’s States, - U.S. Descamps opinion in v. United prior duty convictions or the district court's -, (2013), 186 L.Ed.2d 438 133 S.Ct. 3553(a). them under to consider categori that the modified which made clear approach apply like cal does not to statutes supra 6.' See note 5. imprisonment statute that the Florida false least five times and forced her into his car. B. managed struggled escape, She and but reject We also Rosales-Bruno’s Rosales-Bruno chased her down and contention, second which is that in resen- grabbed to kill threatened her her hair tencing him the gave district court unrea pulled some of it out started weight sonable to his criminal history as a her with arm choking his around her neck. whole. District courts have broad leeway Rodriguez was saved because some em- in deciding weight how much to give to ployees nearby at a business heard her *12 prior crimes the defendant has committed. screams, causing flee, Rosales-Bruno to See, eg., Overstreet, United States v. 713 taking the little child with him. His brutal (11th 627, Cir.2013); 638 United Rodriguez assaults on were violent crimes Williams, 1312, States v. 526 F.3d 1323-24 term is understood in the civilized (11th Cir.2008) (holding that “it is within

world, they may properly and be consid- the district court’s discretion to decide how ered as violent crimes for sentencing pur- 3553(a) much weight give § each factor” poses application other than for the of an previous and that squarely offenses “fit[ ] advisory guidelines enhancement under 2L1.2(b)(1)(A). § factors, into one of the § the histo ry offender”); and characteristics of the The district court was entitled to look (“No see also 18 U.S.C. limitation beyond guidelines labels the actual facts placed shall be on the information concern of Rosales-Bruno’s earlier crimes and to ing background, character, the and con find that some of criminal his conduct was person duct of a convicted of an offense weight. violent and deserved substantial which a Shaw, may court ... receive and consid F.3d at 1240-41. Giv purpose en the broad er for the imposing discretion that of an appro have, sentence.”); district courts we are not “left priate with United v. Early, States the definite and firm conviction that the Cir.2012) (“The 686 F.3d district court a committed clear error of gave great district court weight to [the judgment,” Irey, 612 F.3d at (quota defendant’s] three bank robberies within a omitted), tion marks exactly when it did week, and his substantial criminal histo that. United States Herrera-Gar Cf. ry. This is not a clear in judg error duno, (5th Cir.2008) ment.”). (rejecting argument defendant’s the And history Rosales-Bruno’s criminal possible disagreement district court’s with extensive. already We have described his “drug trafficking how offenses” were de woman, two violent attacks on the same fined under U.S.S.G. 2L1.2 was an insuf the of second which occurred while he was ficient reason to impose non-guidelines a out on bond pending charges trial for sentence). The sentencing statute at least stemming from the first attack. See supra authorizes, arguably requires, a court pp. 1261. He violated the of terms to do what the district court did consid probation his in multiple ways. In addi- hard, ering ugly facts of Rosales-Bru tion, driving- Rosales-Bruno has numerous prior no’s convictions. See 18 U.S.C. related In convictions. November 2000 he 3553(a)(l)-(2) (“The court,.in determin driving was convicted of without a license. ing particular imposed, sentence to be In December 2001 he was convicted of (1) shall ... history and cir consider — driving under the (2) influence with a blood defendant; cumstances of the [and] alcohol (C) legal level twice the limit. In need for the' Feb- —... protect ruary public from 2002 he was of driving further crimes of convicted defendant....”). suspended with a again license. He was pro- ... and to offense seriousness the influence driving under convicted offense,” was for the just punishment in vide license suspended a driving with illegal unreasonable” because “clearly to addi- incident led Another July 2003. view, is, a “rela- in the dissent’s reentry July giving for tional convictions Dissenting Op. offense.” tively low-level or arrested detained name while false to its is entitled The dissent at 1283. license. In June suspended driving with to substitute it is not entitled opinion, but separate on three convicted 2004 he was the crime influence, punishment about the its views driving under for counts the district court. for the views of license, and deserves suspended rer driving with out, are not we review- pointed offenses. As have citations those sign fusing to novo, judgment de district court’s ing 2007 he was convicted Finally, April the court whether only to determine af- but license a valid driver’s driving without discretion. See its considerable speeding him for abused stopped police ter F.3d at 1184. Irey, 512 containers open beer and observed several course, And, present car.7 in his event, the dissent underestimates *13 he was convicted arose because case convic- of Rosales-Bruno’s the seriousness reentering illegally felony of the 2011 committed a tion. Because Rosales-Bruno been de- after he had the United States deported, then felony, and was later felony. for a his conviction following ported illegally, he the United States reentered has someone who is not Rosales-Bruno calls dissent the of what the moved.out complying to or effort much time devoted of 8 category U.S.C. “relatively low-level” 1 the law. with 1326(a) much more serious § and into the 1326(b)(1). Dissenting § category in resen- explained court The district That escalation resulted in Op. it an that believed tencing Rosales-Bruno crime of for his statutory maximum the “appropriate” was sentence 87-month increasing from reentry deportation after history, lengthy his criminal on based latest years. The crime to ten weigh- years two took into account the court which convicted, 3553(a) was for Rosales-Bruno § which the several of ing was sentenced this for which he the one history and characteris- the factors such as case, “relatively low-level offense.” is not a defendant, promote need to tics of law, pro- to and the need for respect give weight to more decision The court’s See 18 U.S.C. adequate deterrence. vide 3553(a) § factors combined other to the (a)(2)(A)-(B). 3553(a)(1), The court also § range alone advisory guidelines than to the that government with the agreed States unreasonable. See United was not 3553(a)(2)(C) need for factor about the § (11th Mateos, F.3d 1368 Cir. v. 623 an 87- public supported of the protection 2010) (“[I]t court’s district] is within [the 3553(a)(1) § did the As month sentence. weight much to to decide discretion how [illegal of the and circumstances “nature long § factors as give each 3553 factor, the court which reentry] offense” judg a clear error it not committed has considered. (“The ment.”); Shaw, at 1237 to ... attach permitted district argues

The dissent others.”) over 3553(a)(2)(A), to one factor great weight §of court’s consideration Williams, omitted); 526 marks (quotation to “reflect requires which account that in take into trajectory fails to suggests that 7. The dissent Rosales-Bruno conduct esca- criminality.'’ Rosales-Bruno’s criminal decreasing pattern of "a shows beating up a driving from drunk rosy picture the Dissenting Op. lated at 1284. criminal woman. paints of Rosales-Bruno’s dissent (noting months, at 1323 F.3d is “within the the variance being justified by district court’s discretion to decide how the defendant’s extensive criminal histo- 3553(a) § weight give much each fac- ry); United States v. Yanez-Rodriguez, tor”). Placing weight substantial on a de- Cir.2009) (af- F.3d 946-49 entirely fendant’s criminal record is consis- firming 144-month sentence for illegal 3553(a) tent with because five of the reentry following removal for an aggra- requires factors it a court to consider are felony vated conviction substantively rea- history. related criminal See 18 U.S.C. sonable even though the guidelines range (a)(6). 3553(a)(1), (a)(2)(A)-(C), 41-51 imprisonment, months upward variance being justified in part by precedent supports Our the conclusion prior defendant’s aggra- conviction for the district court did not abuse its sexual battery), vated overruled in to, part in assigning discretion weight grounds by unrelated weighing, Puckett Unit- sentencing factors. States, 133-34, ed U.S. review, Under substantive reasonableness S.Ct. 1423, 1428, (2009). 173 L.Ed.2d repeatedly we have affirmed sentences major upward that included variances from C. guidelines signifi- defendants with criminal

cant histories that the sentencing Rosales-Bruno’s final contention is that See, weighed e.g., courts heavily. Over- his sentence was substantively unreason- street, 636-40 (affirming because able his case “squarely fell within 420-month sentence where rec- illegal the heartland of reentry cases” and months); ommendation was only 180-210 therefore didn’t merit variance. *14 Early, at 1221-22 686 F.3d (affirming 210- Relying impressions that his attorney moiith sentence guidelines range where has formed from anecdotal “evidence” only months); Shaw, was 78-97 560 F.3d alone, posits Rosales-Bruno many that il- 1238-41 (affirming statutory maximum legal reentry have defendants substantial 120-month sentence guidelines where criminal argues histories and that because range months); only was 30-37 see also his criminal history only is “average” it Turner, 1265, United States v. cannot serve as the upward basis for an 1274, (11th Cir.2007) 1280-81 (affirming Putting legal variance. the premise aside 240-month despite guidelines contention, of this premise its factual range only of 51-63 months and defen- According false. Sentencing Com- dant’s lack of criminal history). mission, illegal reentry 86.9% of offenders in 2013 fell within Other of the first four circuits one have affirmed above history categories criminal guidelines sentences under the sen- illegal reentry for de See, tencing guidelines.8 fendants with criminal histories. Rosales-Bruno does e.g., Rivera-Santana, not. He has a history category United States v. criminal 668 of 95, 98-100, 5, category His 99 n. V. V sets him apart Cir. status 2012) (holding illegal offenders, that from most reentry 240-month sentence illegal reentry for following good. removal not to the Only 13.1% of illegal aggravated felony an reentry conviction was sub offenders fall into a criminal histo- stantively reasonable though even ry category that is comparable to or worse guidelines range 120-150 than his.9 Comm'n, Quick Sentencing

8. See U.S. Facts: research-and-publications/quick-facts/Quick_ Illegal (2014), Reentry Facts_Illegal_ReentryFY .pdf. available at Offenses http://www.ussc.gov/sites/default/files/pdi7 Comm’n, 9. See supra U.S. n. 8. court should position that dissent’s Rosales-Bru dissent believes man- range as illegal guidelines of treated the “mine-run case” have is a no’s offense advisory vari deserving datory. correctly A calculated reentry not In sup at 1280-82. Dissenting Op. a defen- range always reflects guidelines ance. it belief, says that the dissent that we’ve port history, yet as criminal dant’s -history of criminal “suspect[s] discussed, 1255, courts district supra p. convicted-felon, criminals category V most guideline impose sentences outside than Rosales-Bruno’s or worse” is as bad time, than half the because ranges more it at 1281. But Dissenting Op. history. outweigh other, factors non-guidelines only with its similar suspicion up its backs Here, the non- advisory ranges. those is true that whatever ly unsupported belief that most influenced guidelines factors history must criminal of Rosales-Bruno’s focus on the court are those that district convicted- true of other “equally also be earlier facts of Rosales-Bruno’s violent Id. felon, illegal reentrants.”10 category V crimes. way all is ‘turtles “Truly, this at 1256. Indeed, I deci- that our Rosales-Bruno ” States, 547 Rapanos v. United down.’ technical stripped sion 126 S.Ct. & n. U.S. 2L1.2(b)(l)(A)(ii) “crime of violence” de- (2006) (plurality L.Ed.2d & n. unques- from acts that were scription label and tautolo Conjecture proof, is not op.). suggests crimes tionably violent If reasoning. Rosales-Bruno gy is not insists the dissent —which court made a clear believes everything longer else—no trump should him when it sentenced judgment error “history accurately complete reflects in a have done harshly than would more of the defendant.” See and characteristics case,” prove it is his burden “mine-run 3553(a)(1). court The district 18 U.S.C. 590 F.3d at 1236. Langston, much. account the actual facts had to take into nor the dissent offers Neither he convictions underlying Rosales-Bruno’s assertions and unsupported Their proof. “history and fully account for his order a “definite and support do not suspicions it imposed. in the sentence characteristics” the district firm conviction” *15 (not- id.; at 1222 Early, 686 F.3d See cf. that Rosales-Bru it decided erred when court found that the ing that the district history the other no’s criminal ac- advisory “guidelines adequately did not 3553(a) made an 87-month sen factors criminal histo- defendant’s] for [the count Irey, 612 F.3d appropriate. tence See history “did ry” the criminal score because 1190. nature of [the the sustained not reflect contends that because The dissent also conduct”). Doing so criminal defendant’s] to history category assigned the criminal was not error. fact already reflects the Rosales-Bruno require would the district The dissent crimes, earlier that he convicted of court, vary guide- from the before it could vary outside court had no reason range, distinguish Rosales-Bruno’s lines yet another range. This is guidelines history average from that of “the criminal smuggle into the discussion the attempt to amount to no more variance here repeats and relies on the same 10. The dissent that are than a of characteristics speculation that the district recitation when it contends convicted-felon, category V justification that was to most provide a common court did not Dissenting Op. illegal at 1282 support degree reentrants.” "sufficiently compelling to 1282; omitted). But there is no Dissenting Op. (quotation marks see of the variance.” guess Gall, repetition transmutes a alchemy in at 597. It 552 U.S. at 128 S.Ct. also longed fact. justifications supporting into a suggests "the category illegal felony reentrant with a V evidence” but found the “circumstances in- Dissenting atOp. conviction.” See 1283. sentence”). sufficient to warrant a [lower] requirements, To meet those onerous dis- The dissent’s proposed averaging new trict courts would have to have a detailed requirement is neither feasible nor reason- profile average offender for each places able. It impossible burden on crime, including average number and district courts to have granu- detailed and crimes, prior nature of his and then it lar knowledge of the criminal résumé of all would have to show of its work in the “average” offender for each offense’of distinguishing the criminal before it from conviction at each offense level each average one commits that crime. who history criminal category. sentencing Despite argues, what the dissent nearly list 60 categories of of- Dissenting Op. at district courts are fenses, levels, 43 offense and six criminal required figure out who is the “aver history categories. See U.S.S.G. Tbl. of crime, age” offender for each at each of Contents; A, id. Ch. 5 Pt. Sentencing Tbl. fense level and within each criminal histo approach, dissent’s there would Under ry category, explicitly and then compare = (60 15,000 be more x x than the details of the case before it with the 15,480) different “average” kinds of crimi- average details of the average offender’s nals. And the dissent wants district degree case. That of explicit comparison go courts to further still. It would require far exceeds the level of explanation we distinguish them to among individual require of district courts exercising their crimes of conviction among individual sentencing discretion.11 Irey, 612 F.3d circumstances, aggravating such as the (“No at 1195 member of this Court has presence prior or felony convic- absence ever before indicated that Dissenting tions. See Op. at 1280-81. judge required to articulate his findings and reasoning great with detail or in The dissent insists that it doesn’t awant matter.”); detail for that United States v. “statistical analysis” and that all it is ask- Sanchez, Cir.2009) ing is for “district courts use [to] their (“In general, the district court is not re common experience” sense and and their quired to state the record that it “good judgment.” has Dissenting Op. at 1283 3553(a) explicitly considered each of the exactly n. But that is what the district factors or to discuss each of the court did in Drawing this case. on his two factors.”) omitted); (quotation marks see experience decades of sentencing crimi- ¿nd Rita, also nals, 551 U.S. at 127 S.Ct. at exercising common good sense (noting that the “sentencing judge’s judgment, *16 the district court determined statement of reasons was legally brief but that an 87-month sentence was warranted judge sufficient” after the “listened to each for this criminal in this case. Its reward argument” and supporting “considered the doing exactly for what the dissent said The dissent claims its new test would not court did advisory guide- here: faced with an 11.. "require unprecedented degree an explicit longer of lines that no reflected the vio- offenders,” comparison crimes, between because lence of Rosales-Bruno's earlier the require "[a]ll would sentencing [it] is that the district court described that violence in some judge give detail, justification major credible showing for a how in the court’s view Ro- beyond variance from the "typical factors sales-Bruno was not of defendants typical that are subject of subject defendants to the advisory ránge,” to the same Dissent- advisory range.” same Dissenting Op. ing Op. at at and then the court varied 1285. But of course that upward is what the district to account for it. determining that from court was forbidden by the second-guessed to be do is

should one was the same appropriate the sentence dissent. See Rosales-Bru- it had before. “[n]othing the that argues dissent (“We no I, express no 676 F.3d at Rosales-Bruno is that suggests record however, sentence as to what opinion, convicted-felon, category other than worse for Rosales- appropriate now be would reentrants, so much let alone illegal V Bruno.”). advisory his high end of that the worse tripled.” Dis- should be sentencing range But the district Op. at

senting V. record, with that familiar court—more criti- dissenting opinion II Part defendant, and far the familiar with more message as a whole for cizes this Court “other than we are with more familiar judge we have sent dissenting believes convicted-felon, category illegal V reen- we review courts about how to district sense, experi- common trants” —exercised The dis- for reasonableness. sentences it ruled ence, judgment when good legal stan- criticism is not about sent’s appropri- sentence was that an 87-month or the hold- that we have announced dards facts and circumstances ate under made clear of our decisions. We ings this case. Irey prin- that the our en banc decision nature of Rosales-Bruno’s The extensive ap- in that decision ciples we announced history specific and the details of criminal above and below plied equally sentences an conduct made him violent criminal his Irey, 612 F.3d guidelines range. See upward an vari- outstanding candidate for (“What is a requires at 1196 advisory guidelines range from the ance sufficient, greater than but not sentence illegal reentry. His a conviction after purposes set necessary, comply with than criminal conduct is worse history of subsection.”) (2) of that paragraph forth in reentry typical illegal conviction that of the omitted); marks id. at (quotation inside, outside, not He falls defendant. proper analysis is under (stating that the illegal reentry defendants. the heartland means principle,” which “the Goldilocks that (explaining 612 F.3d at 1182 Irey, See that goal is to lock a sentence “the “if the heartland there a case is outside long, just too but is not too short and not unusual, something either about the 3553(a)”) purposes right to serve defendant or the circumstances surround- omitted). marks (quotation crime, ing the that warranted different acknowledges that our deci- The dissent sentence”). all the more reason This is sions, correctly have particularly Irey, variance sentence is not why Dissenting Op. stated the law. See of the district court’s substantial abuse that some think “we (positing 1288-89 Kimbrough, discretion. are impression given have (“[A] 128 S.Ct. at 574-75 552 U.S. likely to vacate a lenient more vary from the district court’s decision to one,” stating emphatical- but than a harsh may greatest attract advisory Guidelines this cir- is not the law of ly “[t]hat sentencing judge finds a respect when the cuit”); (conceding that our en at 1291 id. particular case outside heartland *17 meaning- “Irey articulated banc decision which the intends individual Commission on a court’s upper limits ful lower and apply.”) (quotation marks (ac- discretion,”); id. at omitted). sentencing case to we remanded the When “Irey articulates knowledging resentencing the district court for we did sentences hold, only we use to review standard imply, not much less reasonableness, for substantive and that this circuit good are not at receiving them. applies regardless standard of whether a The irrefutable fact is that district courts imposed by the district court is in our impose circuit far more downward harsh”). challenged as too lenient or too variance sentences than upward variance So, we gotten right. have the law ones. disparity And the in the rate at which upward downward and variance sen-

The dissent’s criticism of this Court is tences are being imposed is increasingly that even though gotten we have the law favoring downward variances.12 right, it believes that the results of our substantive reasonableness decisions have The table that is Appendix A to this message sent a to district courts that opinion, which is drawn from Sentencing will not vacate unreasonably long sen- Commission reports survey of deci- tences, only unreasonably Court, short ones. See sions of this story. tells the It 1285, Dissenting Op. at are not We shows that years fiscal 2006 through told whether 2014, accusation is that years nine fiscal since the Booker Court has done deliberately just this or decision for available, which data is event, negligently. if we have been district courts in this circuit have sen- sending message 61,866 that contrary to the tenced They defendants.13 imposed neutral principles we have announced we upward sentences, variance which will favor variances more than amounts to 1.34% of all sentences.14 ones, downward good contrast, either we are not By 9,307 they imposed downward sending messages or the district sentences, courts of variance which ap- amounts to Packet, 12. We 2009, look to these facts because Fiscal Year Eleventh Information they, any graphic (2010); one-time occur- Circuit 11 tbl.8 Sentencing U.S. rences, Comm’n, are the Packet, most reliable method of deter- Statistical Fis- Information mining 2008, message whether the the dissent fears cal Year Eleventh Circuit 11 tbl.8 (2009); Comm’n, has been “Cognitive psy- sent and received. Sentencing U.S. Statistical chology Packet, 2007, tells us that the unaided human mind Fiscal Year Eleventh Information many (2008); is vulnerable to fallacies and illusions Circuit 11 tbl.8 Sentencing U.S. Comm’n, because of memory Packet, its reliance on its for vivid Statistical Fis- Information 2006, systematic anecdotes rather than (2007). statistics.” cal Year Eleventh Circuit 11 tbl.8 Pinker, quoted Steven in "Steven Pinker: Peace,” Fighting Prophet Talk from the figures 14.These also come from Table 8 in Observer, 15, 2011, http:// Oct. available at Sentencing reports Commission cited su- www.theguardian.com/science/2011/oct/15/ pra They in footnote 13. exclude instances steven-pinker-better-angels-violence-interview imposed departure, where a district court (last 9, 2015). visited June variance, opposed to a above or below the guidelines range. They also exclude instances figure 13. This comes from data collected in which appears the district court to have the United Sentencing States Commission. departure both a and a variance Comm'n, Sentencing U.S. Statistical above or range. below the Howev- Informa- Packet, 2014, er, tion Fiscal Year Eleventh Circuit Sentencing data in Table 8 of those (2015); Comm’n, Sentencing 11 tbl.8 U.S. reports Commission also shows that courts in Packet, Statistical grant Fiscal Year our departures circuit downward far Information (2014); (about Eleventh Circuit 11 tbl.8 U.S. more often five times more often if we Comm’n, Sentencing Statistical government-sponsored exclude downward de- Information Packet, Fiscal partures, Year Eleventh Circuit 11 and about 45 times more often if we (2013); Comm'n, tbl.8 Sentencing them) U.S. they grant upward Statis- include depar- than Packet, tical Fiscal Year tures. Which means that if we included de- Information (2012); Eleventh Circuit partures 11 tbl.8 U.S. Sen- in our numbers the results would Comm’n, tencing greater Statistical Pack- disparity show an even between out- Information et, Fiscal Year side-the-guidelines Eleventh Circuit 11 tbl.8 sentences favorable to de- (2011); Comm'n, U.S. opposed Statistical government. fendants as to the *18 so and have done variance sentences ward of all sentences.15 15.04% proximately increasing rate. at an era, the post -Booker in the means That have been variances in which only period that district real reason The eleven message more than responded have been judges there have not possible, in the results hidden variance sen- that the dissent sees downward many as times there is no is that our review sentences. upward variance tences as in the chart that The data message. such nine that, during those but Not A that. The district shows Appendix is variance the number of downward years imposed 828 in our circuit have courts every year but gone up has sentences in the nine sentences upward variance in 2006 one,16 from 437 increasing overall have data since years for which we in down- 1,516 247% increase in 2014—a in released decision was year the Booker at The rate sentences. ward variance claim Contrary to the dissent’s 2005. have in our circuit courts which district a set aside expressly not ... have “[w]e more variances has granted downward harsh,” Dis because it was too sentence well, 2006 to- from 6.59% tripled than as .in 1292, in fact vacat at we have senting Op. variances, by Upward 22.52% in 2014. variance sen upward of those ed three (1.67%).and contrast, peaked in 2011 unreasonably long. See United as tences (11th Valdes, 1291, years, of the next three v. decreased each States Cir.2007) upward (1.37%) (vacating 108-month by 2014. And falling to fraud where sentence for bank variance increase in down- with the 247% contrast months); range was 41 to 51 guidelines sentences, upward variance ward variance Fed.Appx. Lopez, v. United States up only 39.4% the gone sentences have Cir.2009) (11th (unpublished) 485-86 showing A chart post years. -Booker n variance upward a 60-month (vacating Appen- contrasting trends is contained smuggling unlawful aliens sentence opinion. dix to this C guidelines country where the into the insists, If, the results of as the dissent months); to 41 United range was 33 have been our reviews for reasonableness Gardner, Fed.Appx. States that an message courts a sending district (va Cir.2007) (unpublished) 476-77 likely is less upward variance sentence mis a sentence for cating as unreasonable one, variance get vacated than a downward months, felony that was 36 prision of a courts appear that the district does to 16 guidelines range was 10 where the they if gotten message. have Or months, it resulted regardless of whether have, They have they simply don’t care. or .varia upward departure from an nce).17 have vacated This means that we more down- indisputably imposing been unreasonably long vacating figures supra cited in our decisions 15. See n. 13. Like the Dissenting departures. supra, 'upward exclude variance sentences. See these footnote category They contends that Op. also exclude 1286-88. It first "government-sponsored” calls Commission because none of decisions do not count those that includes both below sentences sentencing ceiling "impose on re- them departures. variances and There are two funda- mand.” Id. at 1287. is that criticism. first mental flaws with n variances de- 16. The number of downward explains why never that mat- that the dissent 1,272 1,215 (from year in 2010 to creased one ters, holding a not. A decision and it does 2011). Every supra n. 13. other one of unreasonably long is a decision is 2014, they in- years 2006 to nine from unreasonably long regard- that the sentence creased. long opinion specifies how less of whether can be without also on remand pages the sentence spends several on an The dissent being distinguish unreasonable. attempt to or belittle unsuccessful *19 position procedural The second flaw in the dissent’s with its duties: it considered the that, 3553(a) ignores only § that the fact with one ex- Fed.Appx. factors. 343 at 486. ception, sentence, we when have vacated as sentences When we vacated the we did so on unreasonably specified we grounds, short have not namely substantive that the court’s imposed sentence that should be “justification” on remand reason—for the sentence —its reasoning either. So under the dissent's' inadequate, own was not jus its discussion of that only Further, one of our downward variance decisions tification. See id. the dissent does position counts in favor of its argue decision that the downward variance sen —one years. noting in nine It is also worth that the we tences have vacated for similar reasons specified See, one case in only which we rea- should e.g., not count. United States v. 771, sonable sentence Hooper, (11th that could be Fed.Appx. Cir. it, Irey. 2014) top remand is and bottom of (unpublished) (noting that "the court guidelines range were the same sufficiently failed to cite significant justifica maximum, statutory 100%, which meant that granting tion for 70-month down guidelines range variance”); sentence within the McQueen, was ward United States v. 1144, (11th the maximum Cir.2013) sentence. 612 F.3d at 1224. 727 F.3d (noting Irey We decided that the facts of the crimes in that the district court offered "no reasoned were so horrendous that no justification downward vari- other than that [a codefendant] ance sentence could be reasonable getting "under the was a lower sentence” for defendants' totality of the downward'variances); facts and circumstances th[e] of Pugh, United States v. 1179, dissenting colleague (11th case.” Id. Our agreed, Cir.2008) (“Quite 515 F.3d joining view, holding in full that simply, and all of rest in our the district court did not Irey opinion. of Irey We did support major in the case departure this signifi with a exactly required what he believed justification.”) we were (quotation cant marks omit right ted). do in that case. He was then and is wrong now. argues The dissent also that Valdes and Next, argues the dissent that Valdes Gardner precedents were decided under that Lopez procedural, were (Those decided on longer good not sub are precedents no law. stantive, grounds, citing unreasonableness required extraordinary justification for an Irey proposition adequacy variance.) for the extraordinary "the of Dissenting Op. at explanation district court’s ... sentence is a 1287-88. But so what? The dissent does not procedural classic Dissenting Op. issue.” at claim that the decisions were inconsistent omitted). (emphasis 1289 & n. 13 then-binding That rea precedent. with Why See id. soning Irey. language misreads the dis correctly applying would decisions the law at Irey sent cites in stands for the unremarkable suggest anything the time other than that we proposition that aif district court correctly apply fails to will continue to the law? required procedures follow the vacating upward Those two decisions vari- —chief which is to consider the substantively factors— ance sentences as unreasonable procedural court has committed a error. apply binding prece- show that we will our 1194; Gall, reasonableness, 612 F.3d at see also 552 U.S. at dent on which the dissent (explaining 128 S.Ct. at “failing correctly concedes states the law. 3553(a) factors, (as dissent, to consider the ... or fail We Dissenting Op. note does the ing adequately explain 1286-87) the chosen sen that two of these three decisions error”); "procedural tence” is unpublished United States are and as such do not serve as Scott, (11th binding precedent 1329-30 Cir. about the law. See 11th 2005) (”[T]he explicitly Judge ac recently Cir. R. 36-2. Martin seemed knowledged that it had point [the considered defen to seize on that in her dissent from an arguments dant’s] unpublished and that it opinion in United States v. Rive - ro, 14-10121, -, -, had considered the factors set Fed.Appx. forth in No. 3553(a). This statement alone is sufficient Apr. 2015 WL at *5 Cir. post sentences.”). 2015) J., (Martin, -Booker (unpublished) dissenting) opinion Booker, The Valdes (“[D]uring states that the period “reasons the ... since I am inadequate discussed support were an ex- published opinion aware of no in which we traordinary variance to a sentence of 108 have held that an above-Guidelines sentence months,” unreasonable.”) not that the discussion substantively (emphasis the rea- inadequate. added). sons was itself charge 500 F.3d at 1292 But the of the dissent this added). (emphasis The dissent Judge dissenting opinion misses that case and of Martin’s Similarly, distinction. Lopez, explicitly published in Rivero is not that we haven't stated that the district complied enough opinions court had correctly stating the law sentencing. vacate on substan- when We upward vari- 0.36% as unreasonable 1% less than imposed. grounds tive reasonableness that have been ance sentences or 9,307 vary upward variance downward the sentences There have been *20 12 of them sentences, vacated The range. have guidelines and we from the downward means that This unreasonably short. is as to the district courts message we send as unreasonable they vacated not, we have “that suggests, the dissent as (about of one-eighth percent) of one 0.13% sentencing dis- enjoy virtually unfettered sentences. variance downward cretion, harshly.” long they as sentence so It that Dissenting Op. at 1287. is instead assume, position as the dissent’s if we So enjoy substantial discretion district courts closely does, judges are that district they of whether sentencing regardless in results, review sentencing our following guidelines— or below sentence above mean what is that we they will see what say.18 precedents our See exactly what deferring to their discretion saywe about Gardner, (de- is, 2009); Fed.Appx. at 475 in It in- concerning review. reasonableness 2007). stead, cided in our sentence review that the results of Next, suggests Judge Bark- that the dissent contrary message to the a have somehow sent Judge problem” as ett “identified same in principles that we have announced neutral decided,” point- Irey was Martin "even before including published ones. opinions, our separate opinion in ing Judge Barkett's to under it is the result that matters Given that Op. Docampo. Dissenting at United States theory, it makes no difference the dissent’s 10; 573 F.3d 1287 n. see also published in a or an the result comes whether J., Cir.2009) (Barkett, (11th concurring in opin- opinion. unpublished unpublished Our part). part dissenting in The dissent and all, are, readily online after as accessible ions selectively very carefully from quotes Ironically, Judge Mar- published ones. as our Docampo opinion Judge to make Barkett’s Rivero, dissenting opinion in like the tin's what she argument, it must because that as case, unpub- majority opinion that is itself in position the actually argued in it not the is Still, unpublished opinion ade- lished. that Docampo, the defendant dissent advances. In position message her quately her about sends mid-point exact at almost the was sentenced theory. sending-a-message on the Docampo, advisory guidelines range. argu- attempts its dissent to bolster 18. The (affirming of at sentence separate opinions dicta from of ment with months, midpoint just of Do- below judge judge of this and a former another range campo's guidelines of 248 to 295 than of two of the more Court and the views months). Judge argument Barkett's And so —(cid:127) country. attorneys 1.2 million in this language just after the which she made attempt fails. ... be quotes should "[w]e dissent —was First, Judge length discusses at the dissent it, that, willing in a case that warrants to find judgment in Unit concurrence in the Martin’s greater within-guidelines than sentence is Early, F.3d 1219 Cir. ed States v. objectives sentenc- necessary serve the 1276, 1282, 2012). Dissenting Op. at See J., (Barkett, concurring in ing.” Id. at 1110 Judge Martin & n. 1287-88. added; 1285-86 (emphasis part dissenting part) concurring opinion’s argument in course, based her Here, omitted). quotation marks that, had part as of she on statement position that a of the dissent’s the basis we vacated an in which [no cases] "found only a within-guidelines with- sentence—and See, Guide variance from in-guidelines reasonable. sentence—is grounds.” Early, 686 lines on reasonableness (arguing Dissenting Op. e.g., at 1276-78 J., (Martin, concurring in the F.3d at 1223 give guide- the district court’s failure question good judgment). We do not faith weight” renders Rosales-Bruno's lines "real statement, colleague making unreasonable). but Judge of our Bark- Both sentence Valdes, Lopez, and Gardner the fact is that the Docampo and the dissent in opinion ett’s decisions, vacating upward all unreasonable, variance sen wrong. this case are pieces the books Finally, were on two of what tences the dissent cites commentary” Early "scholarly decided. that it well before 2012 when to as it refers Valdes, (decided Judge concern. Martin's ”echo[]” 500 F.3d at 1291 believes 11; (decided 2007); Dissenting Op. at n. see also Fed.Appx. 1287-88 Lopez, 343 at 484 Mateos, 1366; 623 F.3d at Irey, 612 F.3d of downward variance sentences that dis- Shaw, 1188-89; 1238; 560 F.3d at trict courts imposed, have while we have Williams, 1322; see also Dis- vacated than a more third of a percent (“District (0.36%) senting Op. at 1282 courts clear- of upward variance sentences. ly enjoy range words, wide discre- other an upward variance sentence tion our in Irey after decisions has been than likely more twice as be .”). Pugh... And district courts use their found unreasonable as a downward vari- range “wide of sentencing discretion” to ance exactly the opposite of sentence — below the more what the dissent believes. The message than they eleven times as often as sent, do to that we any, have if is not “that we *21 above it.19 are more likely to vacate a lenient sen- one,” tence than a harsh Dissenting atOp. The numbers also refute the dissent’s just but the opposite. argument when we compare rate at which upward vacate we variance sen- The dissent does not challenge any tences with the rate at which we vacate our vacating decisions sentences as unrea- downward variance ones. We have vacat- sonably short, easy and it is to understand (0.13%) only ed one-eighth percent of one why.20 Appendix B to opinion this is a Shajnfeld, Ransom, Adam The Eleventh (D.C.Cir. Circuit’s Selec- States v. 756 F.3d 770 Discretion, tive Assault on 2014)). 65 U. quoting Judge Other than Martin’s (2011); Marx, Miami L.Rev. 1133 Daniel N. separate opinion Early, in Marx’s article men Disparity Appellate Unwarranted in Review of only passing, tions our saying circuit in that it Non-Guidelines Sentences Rea- Substantive for is one of the circuits that have "vacated be sonableness, 29 No. 2 Westlaw J. White-Col- low-guidelines sentences for of white-collar (2014). Well, lar Crime it is at least com- being substantively fenders as unreasonable.” article, mentary. lawyer Shajnfeld his Marx, supra, (quotation omitted). at 6 marks makes the same error as the dissent and We are indeed one of several circuits that Martin, Judge claiming that we have never have done The that. article fails to even found a sentence “unreasonably severe.” vacating mention our upward cases vari Shajnfeld, Valdes, supra, ignores at 1155. He Instead, report ances. it relies on a 2012 Lopez, and predate Gardner all of which his states not cite "did cases in which Valdes, (decided article. See 500 F.3d at 1291 appeals above-guidelines courts had vacated 2007); (decid- Lopez, Fed.Appx. in at 484 2009); Gardner, being sentences in substantively cases as ed in (decided Fed.Appx. at 475 fraud 2007). added). passing strange (emphasis in And it unreasonable.” Id. is That rely dissent would at all on an article report not true. Both the and the article premise whose central Irey is that our citing it came out after our 2007 in decision —which dissenting colleague joined in full—was Valdes, substantively where we vacated as un wrongly generally decided. Shajnfeld, See su- upward reasonable an variance sentence pra. bank-fraud See conviction. 500 F.3d at 1292 Attorney Judge Marx’s article echoes Mar ("Nelson pled guilty Valdes and was convict literally, tin quoting more the same section of fraud....”). ed of bank opinion Marx, her that the quotes. dissent supra, (quoting Early, 7at 686 F.3d at 1223 19. The contends that dissent this makes no (Martin, J, concurring judgment)); in the see difference, "Qjust because because district Dissenting Op. at 1285. But it appears un vary courts can above the Guidelines with Martin, likely Judge writing about this virtually scrutiny no does’not mean that dis- Court could talking have been about vary trict courts will above the Guidelines mind, the same cases Marx has in because^his regularity.” Dissenting Op. with at 1291. So article, which focuses on sentences in white- dissent concedes that district courts are cases, collar crime discusses what calls an he heeding message it believes our deci- disparity” "unwarranted between two cases sending. Okay. sions are by decided 2014—one the Sixth Circuit and the other Marx, generally the D.C. Circuit. See Indeed, supra, (comparing dissenting colleague partici- United v. States Mus our grave, (6th Cir.2014) 761 F.3d 602 pated deciding and United three of those cases. See cases, massive in a participant those in which of the decisions listing all table had result fraud that nine-year vari- securities a downward has vacated this Court in losses unreasonably dur- in more than a billion dollars short ed as ance sentence and the had been sentenced for shareholders years nine between ing the days have vacated in detention. See United Although only we seven current date. (11th Martin, variance Cir. many downward v. times as States four (twelve) 2006). other, variance sen- who upward as And in a defendant sentences that there were (three), nearly remember out of a bank tences had defrauded many downward $500,000 times as to detention than eleven had been sentenced more (9,307) up- as Mar custody sentences of the United States variance in the (828). App’x hours, sentences ward variance to be served either only shal for five vacating downward If had been A. we or whenever day the same rate, the same convenient, variances upward by probation. followed to be thirty-three than more have vacated would Crisp, 454 F.3d 1285 See United States (the three Cir.2006). downward variances That was not so much thirty-three) equals eleven times variances delay minor as it was a detention sentence twelve. instead of is, where we plans. point dinner *22 variance have vacated downward sentences shows, B seven of Appendix And as short, done so unreasonably we have as vacated sen in which we twelve cases really unreasonably they were because unreasonably short involved seri as tences and circumstances of given the facts short sentencing court had where the ous crimes including, notably, most the cases jail no time at way down to varied all the crimes. cases include probation-only all. Those ranged the losses in which fraud crimes show, simply do not as the Our decisions of thousands of dollars from hundreds believes, that we review below dissent v. E.g., United States 1.4 billion dollars. especially close guidelines sentences with (11th Cir.2014); 1300

Hayes, 762 F.3d for reasons to vacate scrutiny, searching 1274 Livesay, 587 F.3d v. United States Instead, regularly reject rea them. we Cir.2009). (11th They include a case also challenges by government sonableness officer’s sentence where a law enforcement ap after to downward variance sentences though he had jail no time even included that we principles neutral plying the same a handcuffed beating for been convicted See, in other .decisions. applied Irey locking unresisting arrestee and then McBride, v. 511 F.3d e.g., United States Hooper, him in States v. a hot car. United (11th Cir.2007) (affirm 1293, 1295, 1297-98 Cir.2014) (11th (unpub Fed.Appx. 566 771 months, was a a of 84 which ing lished). guidelines from the downward variance months, a defen 151 to 188 range of in we remaining five cases which Of the and 45 possessed images dant who unreasonable downward vari- vacated as United pornography); videos of child sentences, two were cases which ance 1323, Gray, v. 453 F.3d 1323-25 States committed a serious the defendant had (11th Cir.2006) of 72 (affirming a sentence virtually jail time. received no crime but months, a downward variance which was custodial term was little In both cases the guidelines range of 151 from the tiny one at fig more than a leaf—and months, who distributed for a defendant the naked un- that —insufficient to cover v. United States pornography); child of the sentence. one reasonableness Hendrick, banc); Fed. Kuhlman, v. 711 F.3d 1321 United States v. United States Cir.2009) (11th (en (11th Cir.2013); (unpublished). Appx. 867 F.3d 1160 Irey, (11th Williams, theory 1353-55 is that the facts established Cir.2006) (affirming a sentence of 90 undisputed data show that signal no such months, which awas downward variance has been sent or received. The message guidelines range from the of 188 to 235 that the results of our decisions have sent months, for a defendant who sold five is our substantive review of sen- cocaine); grams of crack United States tences we defer to the district courts’ (11th Neufeld, Fed.Appx. 888-90 broad regardless discretion of whether Cir.2007) (unpublished) (affirming a sen they sentence above or below guide- months, tence of 48 which was a downward range, lines except the rare instances guidelines range variance from the of 135 they where impose clearly unreasonable months, to 168 for a defendant who con sentence. And the district courts’ sentenc- spired MDMA); to distribute United ing behavior shows that they have not Halsema, States v. Fed.Appx. phantom received the message the dissent (11th Cir.2006) (af (unpublished) 103-05 Booker, fears have sent. Since months, firming a sentence of 24 which district courts in this circuit have was a downward guide variance from the many eleven times as downward variances months, lines of 57 to 71 for a variances, they have done possessed defendant who pornogra child steadily so increasing rate. To quote phy); Vawter, United States v. 167 Fed. the eminent logician Mark Twain: “How Cir.2006) Appx. 101-03 (unpub empty theory presence of fact!”21 lished) (affirming a months, sentence of 6 which awas downward variance from the VI. months, range of 24 to 30 for a considering After and giving reasonable checks). defendant who kited *23 weight to each of the relevant summarize, To underlying dissent’s factors, the district court in this case im- theory is that Rosales-Bruno is the victim posed an upward variance sentence. The of what it claims longer is bias favor of sentence did not exceed the outer bounds because, though sentences even we have of the wide of discretion that district gotten right, the law the results of our courts are afforded. Given all of the rele- signaled decisions have to district courts circumstances, vant facts and the sentence that we are more likely to affirm is not unreasonable. variance than sentences downward vari- ance ones. primary problem with the AFFIRMED.

APPENDIX A1

Upward Variance Sentences Vacated

as Unreasonable dissent, Twain, thesis, 21. Mark King A Connecticut Yankeein the actual facts refute its (1st 1889). "facts, bemoaning Arthur’s Court 420 should ed. instead be damned facts, and more facts." questioning accuracy Instead of sentencing opinion, data cited in this showing 1. The data the number of defendants “[tjhere quotes the dissent the old cliché that sentenced and the number of variances is lies, lies, are three kinds of lies: Comm’n, damned Sentencing drawn from U.S. Statis- Dissenting Op. Packet, statistics.” at 1291 n. 14. That tical Fiscal Year Information hackneyed (2015); formulation does not fit here be- Eleventh Circuit 11 tbl.8 U.S. Sen- sentencing Comm’n, cause the tencing facts re- Statistical Pack- Information et, opinion view facts cited in this are not mere Fiscal Year Eleventh Circuit 11 tbl.8 Comm’n, extrapolations. 2014);- clearly statistical Given how U.S. Statistical 1274 Upward Number of Number Number of Sentences Variance Upward Defendants Variances as Unreasonable2

Fiscal Year Sentenced Vacated 0 6,731 92 2014 6,716 94 2013 100 6,837

2012 6,932

2011 116 6,989

2010 107 7,098 99

2009 7,038 6,892 6,633

Totals 61,866

2006-14 Upward Rate of Vacatur of Variance Sentences: 0.36% Downward Variance Sentences

Vacated as Unreasonable Number of Downward ' Number of Number of Variance Sentences Fiscal Year Defendants Sentenced Downward Vari- Vacated as Unreasonable2 _anees_

2014_6/731_R516_2__

2013_6/716_1,282_2_

2012_6/337_1/278__0_

2011_6/332_1/215_1_

2010_6,989_1,272_2_

2009_7/098_984_1_

2008_7,038 740_2_

2007_6,892_583_0_

2006_6,633_437_2_

_Totals_

2006-14_61,866_9/507_12

Rate of Vacatur of Downward Variance Sentences: 0.13% Packet, 2012, Packet, 2008, Fiscal Year Eleventh Fiscal Year Eleventh Information Information (2013); Sentencing (2009); Circuit 11 tbl.8 U.S. Sentencing Circuit 11 tbl.8 U.S. Comm’n, Packet, Comm’n, Statistical Packet, Fis- Statistical Fis- Information Information 2011, Eleventh Circuit 11 tbl.8 cal Year Eleventh Circuit 11 tbl.8 cal Year (2012); Comm’n, Sentencing U.S. Statistical Comm’n, (2008); Sentencing U.S. Statistical Packet, Fiscal Year Eleventh Packet, Information Fiscal Year Eleventh Information (2011); Sentencing 11 tbl.8 Circuit U.S. (2007). Circuit 11 tbl.8 Comm’n, Packet, Statistical Fis- Information Sentencing Commission tracks its sta- cal Year Circuit 11 tbl.8 Eleventh (2010); Comm’n, by year year. U.S. tistics fiscal instead of calendar Statistical

APPENDIX B

Downward Variance Sentences Vacated Substantively Unreasonable Sentence Vacated Range

Criminal Conduct as Unreasonable United States v. Business owner masterminded a 135-168 in public months Probation with no prison term of including 762 F.3d Hayes, corruption over imprisonment scheme— (11th Cir. in $600,000 bribes to state officialin 2014) charge higher education, as well as laundering a money conspiracy —that more than yielded million ill- $5 gotten profits. United States v. Officer a much hand- punched smaller, 70-87 months in Probation with no prison term of Hooper, unresisting 566 Fed. cuffed, arrestee multiple imprisonment (11th locking times in the face before him in Appx. Cir.2014) a hot car. United States v. Corrections officers head-slammed, Defendant # 1: 15-21 Defendant # 1: 1 month McQueen, 727 F.3d and beat with a bro- knuckle-rapped, months in prison prison (11th underage Cir. ken broomstick inmates, 2013) provoking fight one inmate to back, and then choked” him while “fiercely Defendant # 1: 1 month Defendant # 122: begged he officers contin- mercy; n prison months priso ued to beat the breathless until inmate he was “curled into a defensive ball,” lured him to his feet him punch in the nose, choked him finally until he was unconscious. Officers vi- beat at least five other ciously inmates leaving injuries occasions, separate that were visible after the at- days tacks, then obstructed an investi- gation into their conduct. United States Doctor bilked insurance 57-71 months in providers Probation with no prison term of Kuhlman, million in nearly over five payments imprisonment $3 Cir. for services he knew were not yeai's 2013) rendered to his He admitted patients. greed, that was motivated not need. *25 United States v. From 1993 to defendants 360 months to in provid- life 208 in months pris- prison Jayyousi, 657 F.3d ed recruits, money, equipment (11th 1085 Cir. radical and violent Islamist terrorist organizations, including De- 2011) al-Qaeda. fendants were also convicted of con- to murder, or maim spiracy kidnap, overseas. persons (11th consistency Cir.2007)

To maintain practice with that (unpublished), aas fiscal 2008 purposes of this chart we have counted case and United States v. 587 F.3d Livesay, (11th Cir.2009) Gardner, Fed.Appx. 255 475 1274 as a fiscal 2010 case. United States v. 1276 in 210 months in United, sodom- 360 months prison prison Remorseless defendant raped, States fif- and humiliated over ized, tortured, 612 F.3d 1160

Irey, Cir.2010) (11th children, Cambodian ty impoverished young were as as four some of whom a five He over old, year span. year’s memorialized the cruel acts more in photographs that he then 1,200 than the Internet. disseminated on knowingly accounting manager with no term of months in Probation 78;-97 prison States v. Senior United a critical role in a massive nine- imprisonment 587 F.3d Livesayfi played (11th mail fraud scheme securities and Cir. year 2009) in in billion that resulted nearly $1.4 of whom shareholders, losses for some savings their life in the had invested stock. company’s guilty with no term of Probation Defendant was of conspiracy, Unspecified States v. United justice, and witness imprisonment 324 Fed. obstruction of Hendrick, (11th tampering. Appx. Cir.2009) in Probation with no term of of several defen- 97-120 months prison States v. Over a period years, United knowingly Pugh, and dis- imprisonment 515 F.3d dant downloaded (11th to other web users at least 68 Cir. tributed 2008) pornography, images child as well of raping an as videos of an adult male young girl girl of a infant ing perform- oral sex on adult male. Defen- that he once saw an dant admitted having image a man sex with a two- dog or who had collar three-year-old around her neck. There were ten images child victims in the known found on defendant’s computer. knowingly Probation with no term of 87-108 months United States v. Treasurer company par- prison in a massive securi- nine-year imprisonment 294 Fed. McVayfi ticipated ties and mail fraud scheme that result- (11th Appx. Cir.2008) ed in billion losses for nearly $1.4 in- some of whom had shareholders, savings in vested their life the compa- stock. ny’s knowingly in detention United States v. CFO a mas- 108-135 months prison days participated 455 F.3d sive securities and mail nine-year Martinf3 n (11th fraud scheme that resulted in nearly Cir. 2006) billion in losses for shareholders, $1.4 some of whom had invested their life savings in the stock. company’s 24-30 months in Probation and 5 hours in United States v. of construction company prison Comptroller knowingly false financial of U.S. Marshal custody Crisp, prepared a bank Cir. statements that defrauded out 2006) $500,000. nearly APPENDIX C Booker) Livesay, were allowed before instead of vari-

3. The defendants in the related cases (which not). Martin, McVay, ances were Because we re- all of which arise out of activity, originally under the Booker rea- the same criminal were viewed those sentences standard, we have included them decision sonableness sentenced in before Booker merely and in our totals for variances. rendered the in this chart *26 Doing advisory. increases our rate of vacatur of See 543 U.S. at 125 S.Ct. at so variances, downward inclusive of 757. Their below sentences there- cases, (which departures fore were from classified as 0.10% 0.13%. *27 I. CORRIGAN, Judge, concurring District reasons, in the result: I conclude primary three For abused its discretion that the district court a imprisonment is months Eighty-seven on re- sentence imposing 87-month reentry illegal in an very long sentence mand, vacated Ro- previously after we previously has de- Court this case where sentence. initial 87-month sales-Bruno’s 21- range is guidelines that termined 1188-89; v. Ro- United States See id. that, in arriv- concerned I was 27 months. (11th sales-Bruno, 1017, 1024 sentence same 87 month the exact ing at massive, Cir.2012). First, a 60- despite imposed previously he had on remand month, upper in the 68-percent decrease (the guide- the now-discredited high end of range resulting from advisory end judge pay did not the district range), lines vacating Rosales-Bru- opinion this court’s this decision Court’s sufficient heed sentence, imposed initial the sentence no’s as correct- not consider did resentencing did not at Rosales-Bruno’s However, has not as- Rosales-Bruno ed. day. the cir- single a Under decrease procedur- other or ground, this serted cumstances, clear that the district it is appeal. As to the irregularity, on al as failed to consider the Guidelines appeal, whether actually raised ground 3553(a)(4). § required under 18 U.S.C. substantively month sentence the 87 Second, than the sentence —more reasonable, did agree I that the “sentence of the Guide- upper three times the end bounds of the wide the outer not exceed product substan- lines —is courts are range of discretion entirely variance in an unre- tial Thus, I at 1273. Maj. Op. afforded.” harshly in case. so markable I think it unneces- in the result. concur ordinary inevitably cases will create wide me, and unwise for the decision sary to contrary to con- sentencing disparities, visitor, join important in the debate 18 U.S.C. gressional intent. Judge Judge Carnes between Chief 3553(a)(6). Third, Rosales-Bruno was Eleventh Circuit sen- regarding Wilson reentering the illegally convicted of United tencing precedent. States, daughter where his lives and gainful employ- found WILSON, dissenting: previously where he Judge, Circuit concluding In that this crime war- ment. reentering the United illegally For years’ of more than 7 ranted statutory States, no minimum a crime with court failed to imprisonment, the district range of 0-6 and a Guidelines base the nature and cir- appropriately consider months, was sentenced to Rosales-Bruno of the crime for which Ro- cumstances prison. imposing years more than 7 as re- being sentenced sales-Bruno sentence, more than the district court this 3553(a)(1). quired under 18 U.S.C. applicable upper end of tripled ..., Irey “In ... such as we vacat- justifications sup- cases range. The they ground on the major variance are insuffi- ed sentences porting this weight’ to the give in effect to ‘real cient, product of a failed and this sentence —the reflect adequately or to “greater than Guidelines judgment clear error in —is underly- purposes policy Guidelines’ statements necessary[] comply with the Early, concerns.” States ing See United United set forth” in 18 U.S.C. Cir.2012) (Martin, J., 1160, 1187, Irey, 612 F.3d States v. (11th Cir.2010) (en banc). Therefore, The same is concurring judgment). I (vacating a Irey here. Adherence to true dissent. *28 low) sentence that was too requires clearly thus se» prove the district court’s failure (of give high, vacatur a sentence that is too like the Guidelines “real weight.” one).1 this Initially, the district court calculated a and,

70-87 month range Guidelines con- cluding upward that an variance was not A. warranted, the district court sentenced Ro- highly subjective, is at top sales-Bruno range. We standardization, without sentencing based vacated that sentence because the district 3553(a) on the factors is unpredictable mistakenly court believed that Rosales- disparate. why That is the Guidelines Bruno had been convicted of a violent felo- Irey, were created. See 612 F.3d at 1181. ny applied a 16-level enhancement as And, while the longer Guidelines are no Rosales-Bruno, result of that error. mandatory, Booker, see United States v. F.3d at 1024. 220, 226, 738, 746, 543 U.S. 125 S.Ct. At resentencing, without the erroneous (2005),they L.Ed.2d 621 incredibly remain enhancement, violent-felony the Guidelines

useful. Supreme it, As the put Court range decreased from 70-87 to 21-27 ... “[t]he courts must consult th[e] months, meaning that instead of facing a Guidelines and take them into account years, sentence of 7.25 Rosales-Bruno sentencing.” when Id. at at S.Ct. faced a sentence under the correctly calcu- Or, 767. put Irey, we “though not of, most, lated Guidelines years. 2.25 [Guidelines, bound a sentencing However, despite this substantial decrease may court not give them so little consider- applicable range, Guidelines Ro- ation that it amounts to not giving any real sales-Bruno received the exact same 87- weight to the in imposing month sentence as before. To re-impose (internal the sentence.” 612 F.3d at 1217 vacated, the sentence initially we the court marks, omitted). quotation That exactly is had to radically depart from its initial de- Indeed, what occurred here. will rare- termination that Rosales-Bruno did not ly be confronted with circumstances that upward variance, deserve an this time con- I do reasons, not need to reach Majority whether the tion.” For these Rosales-Bruno av- opinion is finding correct in that this court's ers that his sentence was “unreasonable” and review is limited to substantive reasonable- Thus, “unsupported by regard- the record.” ness or whether Rosales-Bruno’s sentence grounds less of whether vacating Ro- also warrants procedural vacatur for error. sales-Bruno’s sentence discussed here are la- procedural To the extent may error be nar- "substantive,” "procedural” beled as or rowly characterized as whether the district issues were not waived and are therefore be- court stated that it considered the factors and And, course, irregularities fore us. just Guidelines, did calculating not err in I quoted from Rosales-Bruno’s brief necessari- If, agree that no such error occurred. howev- ly implicate substantive reasonableness con- er, procedural giving error includes insuffi- cerns, irregularities even if some of the with weight cient decision, to the prior Guidelines or our issues, his sentence technically could fall under the labeled, then those however heading "procedural Compare error.” Gall v. squarely are before us. States, 38, 51, United 552 U.S. 128 S.Ct. brief, opening argues his Rosales-Bruno (2007) ("failing L.Ed.2d 445 to con- that none of the Guidelines factors account procedural sider the factors” is er- major imposed for the variance on remand ror), Irey, (failing with 612 F.3d at 1189 and that "[t]he coincidence of the vacated factors, giving consider relevant Guidelines sentence and the imposed on re- significant weight, irrelevant “quite mand” make it factors clear that or com- the district bypass mitting publish- judgment intended this a clear error Court's in consider- opinion ed justifica- unreasonable). with or without ing sufficient substantively the factors is Irey, entirely incompatible with that he in fact deserved vari- Con-

eluding one, that, major as the 87- gress’s ance—and a command to consider the Guide- required a 60- imposing month sentence lines when a sentence. See 18 variance, tripling 3553(a)(4). more than month U.S.C. , range. of the Guidelines upper end *29 course, Majority opinion suggests Of the uncanny re- ignore

It is difficult to the that, very beginning, from the the sentenc- the district ini- semblance between court’s ing judge thought that 87 months was the imposed the sentence on tial sentence and Rosales-Bruno; correct sentence for the remand, I have little doubt that if the up court came with 87-month correctly calculated had been Guidelines own, experi- sentence all on its based around, the first time Rosales-Bruno ence, sense, good judgment. common have sentenced to 27 months. would been sentence, imprison- But this 87 months’ in record at Nothing the Rosales-Bruno’s ment, did not come from the district heáring sentencing suggests initial that the judgment experience. court’s or It came as type court viewed Rosales-Bruno the or, from the more Guidelines— an upward defendant who warranted vari- accurately, from a miscalculation of the all, significant at let alone such a one. ance Majority opinion Guidelines. rewrites initial And between Rosales-Bruno’s sen- that, history suggesting regardless in tencing resentencing, and his the Guidelines, the district court was al- the. changes that occurred cut in of a favor ways going impose an 87-month sen- Guidelines, lower sentence. Under tence, even if it had calculated the Guide- longer Rosales-Bruno was no deemed a correctly lines the first time around. felon, advisory range violent and his de- Indeed, Majority opinion even as- months, by roughly per- creased or serts that the best evidence of what the Despite changes, cent. these Rosales-Bru- district court have would done the first single no’s sentence did not decrease a time around is the court what did day. second time around on remand. Not so. The conclusion to be drawn from a sen- The best evidence of what the court would change tence that does not based on such a have done the first time around is what the substantial decrease in the Guidelines time, around, court did the first which was range given is that the Guidelines were no upper sentence Rosales-Bruno to the all, weight at requiring Irey. vacatur under range. n end of the Again, Guidelines See 612 at Ordinarily, it is product number 87 was not a of the sen- (or, just difficult to tell how much in this tencing judgment; product court’s was a little) weight given how is case* persuasive Guidelines. There is no particular sentencing factor because the explanation why in the record as to many Guidelines are but one of factors defendant, criminal whom the district the court must take into account. fact decided to sentence within the Here, however, one of the variables —the instance, Guidelines in the suddenly first isolated, Guidelines range perfectly as —is became a requiring triple-up- defendant nothing changed else between Rosales- ward variance on remand. Bruno’s first and his second. Further, concluding that a massive de- The fact that such a dramatic decrease range crease the Guidelines should have had no impact Guidelines on the sen- at tence least some influence on the sentence imposed clearly shows all, given weight suggesting Guidelines were no is not the same as which, requiring aside from mandatory vacatur under the Guidelines should be in violation of Booker. I suggest only reflect considerations even in a binding precedent Irey what our has Irey, mine-run case.’” 612 F.3d at 1188 already Congress’s held: that command to (quoting Kimbrough, 552 U.S. at respectfully consider the Guidelines in- 575). just S.Ct. This case, such a giving weight” cludes “real to the Guide- primary basis for the variance was lines, by imposing and that the exact same Rosales-Bruno’s criminal history, which despite 68-percent decrease in already reflected in applicable Guidelines, clearly the district court See, range. Guidelines e.g., United States give did not the “real Lopez, Fed.Appx. weight” they Irey, deserve. See 612 F.3d Cir.2009) curiam) (per (vacating an above- at 1217-18. Guidelines sentence because the district *30 This proposition stops limited far short court abused its “[b]y discretion focusing treating the Guidelines as mandatory. only on [the history, defendant’s] criminal There is an obvious difference between without providing any justification other as finding an abuse of discretion here —where to the need to fifty deviate almost percent already district court that found a with- high above the guideline end of the range” in-Guidelines sentence to appropriate be (footnotes omitted)). As in Lopez, the only subsequently disregarded a massive de- basis the record for the district court’s crease in advisory range the making —and substantial upward variance is a rote reci- the mandatory.2 Guidelines If the evi- tation of the history criminal portion of dence before us is not enough to establish presentence Rosales-Bruno’s report. This that the district court to adequately failed already information was factored into the weigh Guidelines, then no evidence Guidelines calculation. be, ever would which case Irey would rewritten, have to be and 18 U.S.C. Rosales-Bruno’s base offense level was 3553(a)(4) § might as well not exist. 2L1.2(a). 8. U.S.S.G. He then received a 2-level reduction for acceptance of respon- B. 3El.l(a). sibility. Id. A base offense The district court’s decision to sentence level of 6 translates to a range Guidelines Rosales-Bruno to more than three times prison. 0-6 months in But that was not upper advisory end of the range even the offense level or range appli- Guidelines though he falls in the “heartland to which cable to Rosales-Bruno. felony He had the Commission intend[ed] [the 21-27 name, convictions to his so his offense level [range] apply” month] Guidelines is fur- 2L1.2(b)(l)(D), increased to id. in- ther evidence that the court abused its creasing applicable range Guidelines discretion. Kimbrough v. United from 0-6 to 6-12 months. In addition to States, 85, 109, U.S. 128 S.Ct. felon, being a Rosales-Bruno was convict- 574-75, (2007) (internal 169 L.Ed.2d 481 violating ed of a variety of traffic laws and omitted). quotation marks We have held “ driving while intoxicated on several occa- may ‘closer review be in order when prior sions. These sentencing judge placed convictions Ro- varies from the Guidelines solely history based sales-Bruno in criminal judge’s category view that the range Guidelines fails properly to V. And, as degree” discussed in more detail in Part and "extent” of the variance with I.C., it is not the Gall, mere fact that the district properly which I am concerned. See court varied from Guidelines on remand 552 U.S. at 128 S.Ct. at 595. criticism; rather, my that draws it is "the range” (emphasis account for all of the Guidelines

And the Guidelines lating added)).3 then, recidivism is the this, Why, Rosales-Bruno’s did the district court him in landed precise characteristic more than tri- sentence Rosales-Bruno to categorization increased That category V. upper advisory range of an ple the end again, this applicable specifically designed that was for eonvict- months to 21-27 months. time from 6-12 pat- illegal ed-felon reentrants with similar Thus, the 21-27 month advi- creating when terns of recidivism? case, applicable this sory range Majority attempts to an- opinion dealing knew it was with ille- Commission question by noting swer this Rosales- Rosales-Bruno, just like gal reentrants outstanding Bruno is “an candidate for felony conviction and at prior who have a advisory guide- variance from history points. 10 criminal least range” primarily lines because he is a cate- range al- Accordingly, this Guidelines criminal, gory placing among him V ready the fact that Rosales-Bruno reflects percent illegal worst 13.1 reentrants. repre- has done repeat is a criminal who Maj. But it Op. 1263-66. makes no all, it hard things. hensible After suggest person sense to that a is “an out- category defendant who is not imagine a V standing being candidate” for treated repeat criminal or felon who has not three times than other category harsher V reprehensible things. The Commis- done *31 category criminals because he is a V crimi- punish to designed sion the Guidelines Being category nal. V criminal does no others, harshly more than such defendants more than make an out- Rosales-Bruno. 6 by increasing offense levels from to 10 standing candidate to be treated as a cate- increasing history catego- criminal by and criminal, which, case, gory V this means short, In ries from I to V. as a result of being sentenced to somewhere between 21 breaking doing the law and repeatedly Valdes, imprisonment. and 27 months’ (at once), reprehensible things illegal least Valdes, 2; 500 F.3d at 1292 n. 298 Fed. reentrants like Rosales-Bruno face a at that a Appx. (indicating 930 months, range Guidelines of 21-27 rather by imposing court abuses its discretion an than 0-6 months. upward solely prior variance based on con- record Nothing suggests Ro- already incorporated victions are into than other con- sales-Bruno is worse history category). a defendant’s criminal vieted-felon, reentrants, category illegal V Quite simply, in the nothing sug- record high let much worse that the alone so end gests that Rosales-Bruno falls outside the advisory of his should be convicted-felon, category “heartland” of V tripled. previously have an We vacated See, illegal Kimbrough, reentrants. 552 sentence for similar above-Guidelines rea- 109, at at U.S. 128 S.Ct. 574-75. The Valdes, sons. States v. 500 See United Majority’s response Rosales-Bruno Cir.2007) 1291, (per 1292 & n. 2 —that curiam) falls outside the of illegal “heartland” reen- (vacating in part “[m]any because category trants because he is a recidi- the bases for the district court’s sen- V already entirely. tence were accounted in calcu- point vist—misses When for Valdes, that, Gall, reaching 3. In our conclusion in even after a defendant's “criminal McVay, history justify upward relied on United States v. alone would not an 1348, (11th Cir.2006), departure which was subse- behavior is accounted for such Court, quently abrogated by Supreme through history cat [the defendant’s] see criminal Valdes, Gall, 46, egory.” U.S. at 128 S.Ct. at But 298 Fed. United States (11th Cir.2008) curiam) appealed Appx. (per when Valdes the sentence remand, added). opportunity clarify (emphasis we had the Supreme Court referenced the “heartland” other illegal reentrants place does not him Kimbrough, when we referenced outside the relevant “heartland.” Of the “mine-run in Irey, case” 612 F.3d at course he has a worse criminal record. point compare the That why place him in being defendant sentenced to all other de- criminal history category V and increase fendants who underly- committed the same his advisory range accordingly. But in was, ing is, offense. The point that we considering whether Rosales-Bruno falls compare must the defendant being sen- outside the “heartland” purposes tenced to other “to defendants which the justifying variance from the Commission intendfed] individual Guide- sentencing range applicable category V apply.” lines to Kimbrough, 552 at U.S. illegal reentrants, we must compare Ro- 109,128 S.Ct. at 574-75. sales-Bruno to defendants who have simi- all, After purpose considering the lar records thus are similarly treated “heartland” or the “mine-run” case is “to under the Guidelines. avoid excessive sentencing disparities,” id. Properly understood, then, question (internal at 128 S.Ct. quotation of whether Rosales-Bruno falls “outside omitted), “among marks defendants with the heartland to which the Commission similar records who have been found individual apply,” intend[ed] Guidelines to guilty conduct,” of similar 18 U.S.C. Kimbrough, 552 U.S. at S.Ct. 3553(a)(6) added). (emphasis pur- That (internal quotation omitted), marks pose is by comparing not served Rosales- can be answered comparing Ro- Bruno generic reentrants,' to other illegal sales-Bruno to average category V most of whom fall in lower history criminal illegal felony reentrant with a categories and thus conviction.4 face lower Guidelines words, ranges. other Congress only by it is clearly comparing wants sentenc- ing disparities category between I Rosales-Bruno to illegal people “with similar *32 felonies, reentrants with prior no the records on who have been guilty found of hand, convicted-felon, one and category V similar that we conduct” can avoid unwar- illegal reentrants, other, on the because ranted sentencing disparities. 18 U.S.C. these two types illegal reentrants do not 3553(a)(6) added). § (emphasis And the records,” have thus, “similar and sen- a record here does not show that “there was tencing disparity between the two is en- unusual, something either [Rosales- about tirely warranted. See id. or the Bruno] surrounding circumstances

So, again, the illegal fact that reentry], [his Rosales-Bruno that warranted a dif- has a worse criminal record than most ferent sentence” than by the one advised Majority as, 4. The place that insists I example, unrea- for defendants in the same crimi- sonable by burden expecting on courts history nal category having some —without them to know the characteristics of the "aver- "heartland,” typical, idea what "mine- age” category illegal V reentrant with a base category run” By V criminal was like. insist- offense level place The burden 10. I would ing that "average” district courts consider sentencing on courts is no different than— particular with a defendant offense level and and, indeed, carrying is essential out—the history category, criminal I insist that placed sentencing burden on by courts Con- district courts use their common sense and gress, which directs them to consider experience to ensure that defendants with need to avoid sentencing dispar- unwarranted similar who records similar crimes commit ities between defendants with similar records. similarly. are sentenced This calls on district 3553(a)(6). See 18 U.S.C. It would be im- judges good judgment, court to use not to possible to avoid disparities unwárranted be- analysis. conduct statistical tween defendants with similar records —such And here. convicted-felon, authority requires vacatur this other for the Guidelines court abused the district concluding that Irey, illegal reentrants. category V way that would acting in a its discretion F.3d at in ordi- sentencing disparities to wide lead way not mean Indeed, I do while inconsistent with not at all nary cases is lengthy crimi- Rosales-Bruno’s condone treating the Guide- prohibition Booker’s criminal that history, suspect I nal all, Booker did mandatory. After lines convicted-felon, category V history of most vacating Pugh’s sen- from prohibit us worse. The district as bad or criminals is court’s failure on the district tence based insisted, Majority opin- as does sentencing reflect ... “adequately re- proper lacked ion, Rosales-Bruno by the Guidelines.” established range deterred, law, to be needed spect (internal quotation 515 F.3d at 1200 Pugh, public. of harm to a risk presented omitted). clearly District courts marks 3553(a)(2)(A)-(C). All of U.S.C. See 18 sentencing discre- range enjoy wide true true, equally that is all of but Pugh, Irey decisions tion after our convicted-felon, category illegal V of other to do so were they would continue and' explain why concerns These reentrants. cases, by those set precedent to .followthe Rosales-Bru- increased the Commission Rosales-Bru- requires us to vacate which months to from 0-6 advisory range no’s no’s sentence. months, it did for all other just as 21-27 convicted-felon, reen- category illegal V C. nothing to But concerns do trants. these appears all Rosales-Bruno’s more court then why the district explain light of the “de- unreasonable the more range— end of tripled upper than ... the extent of ... and gree of variance peo- designed for the Commission Guidelines,” from the ] [the] deviation! just like Rosales-Bruno. ple Gall, 552 free to consider. which we are short, a “mine-run” Rosales-Bruno is (emphasis at 595 128 S.Ct. U.S. convicted-felon, category illegal reen- V added). variance 60-month trant, that “the received, is clear in a resulting Rosales-Bruno based upper from the Guidelines judge than three times the varie[d] sentence more the Guide- judge’s range, view that solely “[w]hether on the end of the Guidelines percentage to reflect in absolute or properly considered range fail[ed] lines legal terms, ‘major’ ... is a variance Irey, 612 F.3d considerations.” *33 Irey, 612 sentencing law.” parlance of at Kimbrough, at 552 U.S. (quoting 1188 spending roughly at 1196. Instead 575). F.3d 109, Allowing district 128 S.Ct. at most convicted years prison, in as will two end of the Guide- triple upper courts to the criminal rec- reentrants with similar illegal ordinary in cases will lead inev- range lines the ords, spend will better Rosales-Bruno sentencing dispari- itably to unwarranted a decade behind bars. part of Congress’s contravention of ties direct 3553(a)(6). purpose passing 18 U.S.C. that, made clear Supreme Court has Irey Pugh, and we vacat- In “cases such as imposed, the district are when variances they that ground “sufficiently ed sentences on be justification must court’s the Guide- adequately ... reflect degree support compelling failed underlying re- policy variance,” major departure” lines’ statements “a with (Mar- justification significant at 1224 Early, concerns.” “a more quiring 50, Gall, tin, (citing 552 U.S. at J., judgment) in the minor one.” concurring than a 1179, Supreme F.3d S.Ct. at 597. While Pugh, United 128 States proportion- (11th Cir.2008)). formulaic precluded has Adherence Court 1199-1201 ality or a requirements permits rule that pelling to support degree of the vari- ” Gall, extraordinary variances under cir- ance.’ (quoting 552 U.S. at cumstances, 597)). it remains our at duty to “see 5.Ct. The degree of a variance is justification that a is factor that [for variance] is independently significant sufficiently compelling” to and that “support weighs the de- heavily here in favor of reversal; gree Supreme of the variance.” Ivey, 612 F.3d at Court has reiterat- (internal omitted).5 ed that our quotation for marks review substantive reason- “justifications” requires ableness But the us to the var- “take into supporting account the totality of the imposed circumstances, iance here amount to no more including than a the extent of recitation of variance from characteristics that are the Guide- Gall, convicted-felon, range,” common lines to most 552 U.S. at category 128 S.Ct. at illegal as “the justifications V reentrants. These extent of the difference particular are between a “[in]sufficiently compelling to sentence support and the rec- (internal degree ommended the variance.” Id. Guidelines is surely rele- vant,” omitted). quotation Indeed, id. marks if S.Ct. at 591. these Because justifications sufficient, the district were virtually major then variance case, in a any category V by defendant —who defini- “mine-run” the absence of sufficiently tion long compelling justifications would have a criminal record that for any variance, is sure to let major one, contain sordid alone such a casting details I in a would vacate highly defendant Rosales-Bruno’s unflattering light— unreason- ably could be harsh Ivey, sentenced to three sentence. See up- times the per end of the 1186-87. advisory range, undermin- ing the primary Guidelines’ purpose of D.

preventing unwarranted sentencing dispar- ities. 3553(a)(2)(A) Section requires sentence “reflect the seriousness of the conclusion, In reaching this I am not ... provide just offense punishment seeking to require unprecedented de- 3553(a)(2)(A) for the 18 U.S.C. offense.” gree of explicit comparison between of- added). (emphasis The district court’s fenders before a district court may sen- consideration of this factor clearly was un- tence a defendant. All I require would reasonable. It is critical here to recall sentencing judge give a credible being Rosales-Bruno is not sentenced justification major for a variance from the for abusing girlfriend his or for driving beyond Guidelines factors that typical are drunk. He already punished has been for subject advisory defendants to the same crimes, those punishment his under range. precisely This is what is required for the instant crime has by the Supreme Court and Judge Chief already been substantially increased as a opinion Carnes’s Ivey, this court past result of those offenses. Irey’s where we said too low. (“[T]he See 612 F.3d at requirement being He is illegal reentry sentenced for justification is that the ‘sufficiently 1326,6 be com- under 8 which is a U.S.C. relative *34 Irey candidly recognizes 5. tension 6. internal illegal Rosales-Bruno was convicted of 1326(a). reentry in the rule that § the reason for a in of 8 variance must violation U.S.C. (b)(l)-(2), provide Subsections sufficiently be which for en- compelling support the de- convictions, prior hancements based on gree are of the variance but proportionality that a enhancements, not different requirement prohibited. is See 612 F.3d at See, e.g., crimes.. United Almendarez-Torres 1186-87 &n. 14. States, 224, 226-27,-230, 523 U.S. 118 S.Ct. 1.219, 1222, 1224, (1998) 140 L.Ed.2d 350 country as his Further, to be in the same it is undis Bruno offense.7

ly low-level working continue here as he child and to of commission Rosales-Bruno’s puted that the offense the district the lowest a factor offer: 0-6 and For circumstances category making months. was range court mentioned I offenders, routine an 87-month sentence the Guidelines of the instant It is and unremarkable. thus the crime striking the nature offense as have to carries ap for this offense And had before he was more than U.S.C. certainly seems spending § 3553(a)(2)(A). years [*] more is like plainly deported, than 7 [*] prison punishment enough. too years % much. for this but spending prison crime contrast, balance, clearly § factors Commission On propriate. sen- support cir an above Guidelines nature and do the essential believes case, varying signifi- so tence in this and offense, illegal-reentry of cumstances on facts cantly above the Guidelines based themselves, at most a 6-month make by history that are Rosales-Bruno’s about suggesting that an appropriate,8 sentence applicable in the people common to most wildly inappropriate. is 87-month range clearly was even more no basis for dis court offered The district See, Gall, e.g., 552 U.S. unreasonable. fac assessment. This with this agreeing reviewing (requiring 128 S.Ct. at 597 against cuts—and cuts clearly tor hard — totality “the of the cir- courts to consider of the district court’s the reasonableness cumstances, of including the extent decision. range”). Ro- variance from the Guidelines circum- Indeed, consideration among is far from an outlier sales-Bruno Rosales-Bruno’s ille- surrounding stances convicted-felon, category illegal V reen- makes a reentry into the United States gal by gain- his anything, trants. If virtue of variance seem outra- upward 60-month employment decreasing pattern ful daughter has a geous. Rosales-Bruno among the criminality, appears he to be States, he reen- apparently the United more dangerous, depraved, less less gainful States resume tered the United history portion of his criminal productive processing citrus indus- if he was sentenced as he employment category.9 Yet much, much, much If a dis- course, illegal were worse. it is for Rosales- try. Of seriousness, 1326(b) utory mid-range not at the penalty provi- (describing § as "a , might upper spectrum one ex- separate end of the not define a "does sion” pect the district court im- crime”). in a case where posed a massive variance. such 1326(b)(1) Compare (punishing § il- 8 U.S.C. accurately illegal Majority observes that 7.The following deportation legal reentry for a felo- subject § reentry U.S.C. 1326 is to a under 8 imprisonment), ny years' to a maximum of that, sentence, pursu- but two-year maximum 1326(b)(2) (punishing illegal reentry §with 1326(b)(1), statutory maximum ant to following deportation aggravated for an felo- illegal years for reentrants to ten increases imprisonment). ny years’ to a maximum of 20 deported who were fol- like Rosales-Bruno however, felony Again, lowing conviction. prior felony Adjusting for his convic- 8. account for Rosales-Bruno’s the Guidelines tion, conviction, offense level was Rosales-Bruno’s prior felony as evidenced beginning advisory ranges at 0- advisory range, which carries upper of his fact that the end months, history months, depending cate- on criminal statutory exceeded maximum gory. simple 1326 without a for a violation So, 1326(b)(1). sentencing upgrade under applicable suggest that Rosales- perfectly clear that the Guide- mean to I do not variance, already adjusted but to reflect Bruno deserved a downward lines support of- in the record to increased seriousness of Rosales-Bruno’s there are more facts *35 support trebling than to noting Ro- a downward variance fense. And it is well worth that because, unlike the That is illegal reentry the stat- the Guidelines. sales-Bruno’s fell into

1287 trict does not by abuse its discretion This forces me to believe that we are upper end of a tripling grading Guidelines harshness and lenience on differ- range in a “mine-run” case By where ent scales. failing to Irey adhere to already incorporate and account and Pugh case, this variance characteristics, for the defendant’s worst it Majority opinion reinforces this unstated difficult imagine any is circumstances double It standard. is true that saywe all under which we would find an abuse of sentences meaningfully are reviewed for discretion because a reasonableness, sentence is harsh. too but in practice, it seems Unlike the I Majority, am left with the that only lenient subject sentences are and firm definite conviction that the dis- vacatur on purely grounds. substantive trict court a committed clear error of judg- The message that we sending are to the ment, I and would vacate Rosales-Bruno’s precedent courts this is that sentence and resentencing remand for they enjoy virtually unfettered sentencing within the discretion, Guidelines. long so they sentence harsh- ly. words, In other while saywe other-

II. wise, we in reality are reading a “severity principle” sentencing We into have never vacated a should sentence be be there. Irey, 612 high, cause was too F.3d at imposing sentenc 1196-97 (explaining ing ceiling By contrast, supports on remand. neither occasions, “parsimony principle” nor a “severity numerous we have vacated sen principle”). tences they because were too and im low See,

posed sentencing e.g., floor. Irey, A. F.3d 1224-25 & n. 46 (concluding years sentence less than no would Our case law has been so one-sided that suffice); Pugh, 515 F.3d at (holding we have convinced at least one member of that a sentence of probation court, without im Martin, this Judge that we do not prisonment supervised or release was— actually place an upper limit on sentencing unreasonable); and would discretion, see also despite pretensions our to the be— United Livesay, States v. is, contrary. That she believes that we (11th Cir.2009) (“Not only do we hold have been so obvious in applying our un- particular that the sentence below written “severity principle” that it is now unreasonable, but we also that any hold the law of our circuit.10 In Early, Judge probation sentence would be unreason Martin stated that our precedent “teaches ....”); able United States v. McVay, 294 deference to ... variance above the (11th Cir.2008) Fed.Appx. (per Guideline no range, large,” matter how so curiam) (prohibiting the district court from long maximum, as it is statutory under the time). imposing a prison sentence without (Martin, J., course.11 686 F.3d at 1223 aggravating counting (1) against circumstances enough punishment? tions: Is (his (2) Rosales-Bruno criminal history), the mit- punishment? Is the sentence too much (his igating circumstances seeming Appellate desire to difficulty finding have had courts no be in the country daughter same as his asking unreasonableness when for- employment source of as well as appellate his decreas- mer. ... Our review ing pattern behavior) of criminal not nec- develop one-way are should not into a ratchet essarily factored range. upwards.” into the Guidelines Cir. 2009) (Barkett, J., concurring, part, (now retired) Judge dissenting, part). Barkett identified the problem Irey same even before decided. Docampo, States v. explained United she sign 11. In a that others have noticed the essentially that "we pose separate ques- dichotomy Judge two Martin described in our *36 summary of our Judge Martin’s Majori- agree with The judgment). in the concurring to lenient applied of review as standard same lesson. the ty teaches her to disagree with sentences but the two articulated then Martin Judge stan- any other suggests that she extent that she sees of review standards different Thus, I harsh sentences. applies to dard a sen- on whether depending applied being cases such upward in variance that believe or lenient: is harsh tence cases this, in variance just as downward as tells me these cases reading of My sentences Irey, vacate[ ] “we such as above considering sentences in that ‘real give in they effect fail[] [when] only to we look range, Guideline adequately to the' Guidelines or weight’ court seemed sentencing whether statements policy Guidelines’ reflect 3558(a) and factors to consider 1224. Id. at underlying concerns.” and might the court whether ignore we above, court here the district factors or As discussed one of the disregarded have weight” to the Guide- give in an unreasonable failed to “real the factors weighed contrast, vari- for downward sentence that does imposed'a In lines and way. ances, no such deference purpose we show of eliminat- reflect the Guidelines’ sentencing a how instead scrutinize between similar- sentencing disparities ing every each and applied prin- defendants. Because ly-situated to decide go so far as even factor. We Irey’s vacate that led us to ciples the factors were whether for ourselves sen- of Rosales-Bruno’s compel vacatur correctly. weighed tence, apply principles those because variance cases such In ... downward just as much as upward in variances cases on the ..., sentences Irey we vacated as cases, I variance they do in downward give they failed in effect that ground imposed here find that the sentence cannot to ade- the Guidelines or weight to real was reasonable. policy reflect Guidelines’ quately underlying concerns.... statements B. law sum, though our case ... even that we Majority opinion disputes justifi- significant a requires purportedly severity principle our major departure adopted have a support cation to Guidelines, decisions, review three panel’s citing from the review of view, vari- Early’s percent which, Majority’s prove of Mr. in the cases that such little indication overly-harsh ance evinces sen- have vacated that we here. applies even requirement substantively unreasonable. tences however, indicate, that These cases (citations quo- and internal Id. at 1223-25 omitted). actuálly vacated be- sentences were not Unmistakably, tation marks long. they I cause were too apply does here.12 requirement (2014) 6-7 law, scholarly White-Collar Crime Westlaw J. concern is echoed case her (describing disparity appellate review Shajnfeld, commentary. Adam The Elev- sentences, including Judge Martin's com- Assault on enth Circuit’s Selective Discretion, approach). mentary on the Eleventh Circuit’s L.Rev. 65 U. Miami (2011) "unfairly (claiming wield[] sword, my position not de- striking would capable what I reiterate single-edged prive sentencing of the substantial dis- unduly yet courts perceived lenient sentence as an one”); agree they enjoy post-Booker. I with unduly harsh see cretion impotent against an Marx, Early to affirm the sentence Disparity our decision in Unwarranted also Daniel N. though it was more than two imposed even Sen- Appellate Review Non-Guidelines Reasonableness, range. upper end of the Guidelines times the tences Substantive *37 (a case, only published In the 612 Valdes F.3d at 1224-25 & n. 46 (requiring the paragraph, per opinion), three curiam impose district court to a sentence of 30 defendant was sentenced to remand). 108 months’ years on far imprisonment, upper above the end of Nor unpublished does our opinion in Lo- advisory range. 500 F.3d at 1292. On pez, Fed.Appx. signal the same appeal, we held “the reasons dis- warning against harsh sentencing as cases inadequate cussed were to support an ex- such Irey signaled as against lenient sen- traordinary variance.” Id. This opinion tencing. In vacating sentence, Lopez’s we not, however, prove does that we have explained judge’s that “the ability to [devi- indeed vacated a sentence because it was ate above guideline range despite the long. holding, too Instead of as we did in conviction’s role in helping to dictate that Irey, that “no sentence less than [the advi- range] give does not then free rein to sufficient,” sory sentence] is 612 F.3d at impose any sentence above without first 1225, Valdes, in we held that “the reasons adequately justifying that decision.” Id. at inadequate,” discussed were 500 F.3d at added). 486 n. 1 (emphasis As with in recognized Irey, As we “the ade- Valdes, then, our decision in Lopez, which quacy of a district court’s ... sentence n rested on “the adequacy of a district issue, explanation is a procedural classic was, ... explanation,” court’s at least in not a Irey, substantive one.” significant part, “a procedural classic [deci- added). Thus, (emphasis Valdes sion], not a substantive Irey, one.” part based vacatur at least in procedur- on 1194; Gall, F.3d at see also 552 U.S. at al, grounds.13 not substantive 128 S.Ct. at (“failing to adequately The distinction is critical because explain the chosen including an sentence— Valdes, Irey, unlike open possibili- left explanation any for deviation from the ty that the district court could impose the error). range” Guidelines procedural same sentence on remand if a more thor- Further, regardless of whether the Ma- ough explanation Again, were offered. jority opinion is correct that Lopez repre- Irey, it did not matter what reasons the sents vacatur on grounds substantive gave district court for its downward vari- alone, decision, unpub- which was (as ance or it gave whether those reasons lished, very did little any to eliminate un- did); indeed it no explanation severity written principle our law. And any could render downward variance sub- if case, Lopez applied the stantively reasonable in that standard this circuit and we vacating sentences, instructed the district court to sentence harsh then it Irey advisory within the range. Irey, See strongly supports all, reversal here. After words, Majority opinion suggests remand, 13. that there is other on the district court important sentence, impose distinction to consider provid- between was free to the same reversals; procedural substantive and that the ed that additional reasons were discussed or remand in Valdes based developed on "the reasons dis- in the record. And it is worth that, ground, cussed” is a substantive noting although whereas re- court did not remand, mand based "the impose discussion of the rea- exact same sentence on it procedural. again sons” would have rendered significantly varied above the Guide- lines, My point Valdes, quibble is not over In- labels. and we affirmed. See 298 Fed. stead, point my remanding Appx. is that (affirming because at 930-31 an 84-month sen- tence, inadequate” "the reasons discussed were upper 33 months above the end of the open Thus, possibility leaves range). there were I reiterate: we have other reasons that expressly were not discussed that vacated a sentence because it harsh, adequate support could be long the sentence was too or too but have we done Valdes, imposed. 500 F.3d at 1292. so because a sentence was too short. nary Fed.Appx. held that the district court circumstances.” See 255 Lopez, “[b]y focusing only on at its discretion 476-77. abused history, providing without criminal Lopez’s underlying The rule those decisions is no to the need to” justification other cit- longer good law. Valdes and Gardner FedAppx. the Guidelines. vary above McVay, proposi- ed for the happened precisely That is what at 486. imposition tion that “a district court’s of a *38 if Accordingly, Lopez in means this case. sentence that falls far outside the Guide- claims, Majority opinion then Ro- what the by supported lines must be extraor- sentence is also substantive- sales-Bruno’s Valdes, dinary circumstances.” 500 F.3d ly unreasonable. added); at n. 2 (emphasis 1292 see Gard- Thus, Lopez only strengthen Valdes ner, Fed-Appx. (citing McVay 255 at 476 sen- my contention that Rosales-Bruno’s proposition). McVay’s for the same But cases, In those tence should be vacated. “extraordinary require- circumstances” here, the district court varied above the as ment, upon holdings which our in both on factors that were al- Guidelines based based, Valdes and Gardner were was ex- into the ready incorporated Guidelines plicitly abrogated by in Supreme Court justification without other providing (“We Gall, at 552 U.S. 128 S.Ct. at 595 substantially. varying upward for so reject appellate requires ... an rule that Valdes, at Fed.Appx. (reaffirming ‘extraordinary’ justify circumstances to a holding our initial in Valdes that the defen- sentence range.”). outside history alone would not dant’s “criminal Thus, neither nor proves Valdes Gardner justify upward departure an as such be- that we have vacated a sentence because it through crimi- havior is accounted his long. They prove only was too that we history category”); Lopez, nal 343 Fed. have vacated a sentence when the district Appx. (vacating at 486 the defendant’s sen- adequately justify court failed to a vari- only tence because the on “focus[ed] “extraordinary circumstances,” ance with history”). criminal If [the defendant’s] which longer district courts are no re- Lopez distinguishable Valdes and are from quired to do. case, this it because the variance severe, justifi- here and thus less is more Consequently, to the extent the cases reasonable, able than the vari- and less by Majority cited opinion do reverse at ances in those cases. part least in on grounds, substantive those grounds plainly support same reversal

There is another reason that Valdes and my point this case. And remains: we have Majority cites, opinion the third case the expressly never a vacated sentence as sub unpublished opinion our in United States stantively unreasonable because it Gardner, was Fed.Appx. Cir. 2007) simply long imposed too a curiam), sentencing (per my do not alleviate contrast, ceiling By on remand. we have developing severity concern that we are not hesitated to vacate a sentence as Valdes, sub principle sentencing. we va stantively unreasonable because cated the sentence because “the reasons short, simply many too those inadequate support discussed were cases, extraordinary variance.” 500 at floor added). See, Gardner, 1224- (emphasis Similarly, e.g., Irey, remand. 612 F.3d at 46; 1204; Pugh, we vacated the above-Guidelines 25 & n. 515 F.3d at Live- 1279; extraordinary upward say, McVay, because at “[t]he vari Fed. 490; ance ... was supported Appx. Maj. Op. extraordi- see also B. App. that district C. vary courts will above the regularity. Guidelines with And it should If we do not vacate unreasonably long come surprise as no that district courts imposed here, sentences like the one dis- encounter more trict courts can assume that defendants upward vari- who deserve (in ances from the Guidelines are essentially Guidelines) lenience relation to the than per se reasonable and will not be reversed. harshness. The Guidelines do a much bet- time, At the Irey proves same job ter of incorporating aggra- defendants’ same is not true of downward variances. (such vating characteristics type, Thus, while apply we are bound to nature, offenses) and number of prior their same abuse of discretion standard when they than do of capturing myriad miti- reviewing the substantive reasonableness gating characteristics about defendants sentences, all given impres- we have may justify lenience in particular likely sion that we are more to vacate a Thus, case. the Majority opinion’s empha- *39 one, lenient sentence than a harsh “even sis on how district courts sentence does where extent of the variance from the nothing point to counter the that this court Guideline was far smaller and where appears apply a severity principle when given by reasons the sentencing court reviewing harsh on appeal. sentences were more Early, substantial.” (Martin, J., at 1223 concurring in the judg- I Ultimately, agree to a certain extent ment). That is not the law of this circuit. Martin, with Judge Barkett, Judge Irey meaningful articulated up- lower and other commentators point who out that we per limits on a sentencing court’s discre- appear to be applying different standards tion, why joined and that is I Judge Chief depending review on whether a sentence (even majority opinion Carnes’s in Irey challenged is long as too or too short. I though Judge then-Chief Edmondson and however, disagree, these different Birch, Barkett, Judges Tjoflat, and Martin become, standards of review have through not). did But it is becoming difficult to misapplication, the law of this circuit. believe that upper those limits are actually Irey articulátes the standard we use meaningful as we said. to review sentences for substantive reason- by The statistics Majority cited opin- ableness, and that applies standard re- ion, which show that vary district courts gardless of whether a imposed by sentence frequently downward more than they vary the district court challenged as too le- upward, nothing do to suggest that district nient or too Applying harsh. that stan- courts have pick failed to on up implicit requires dard here vacatur of Rosales- message we have sent.14 Just because dis- harsh, trict vary unreasonably courts Bruno’s can above the far above- Guidelines with virtually scrutiny no does not mean Guidelines sentence. Judge Instead, Chief Carnes Majority opinion. looks to Mark Twain dispute I for wisdom—but I recall that Mr. Twain also a recitation sentencing of district court statis- proclaimed, once “There are three kinds of proves Majority tics what the claims about lies, lies, lies: damned and statistics.” See precedent how our affects district court deci- Twain, Chapters My Mark Autobiogra- from Contrary Judge sions. to Chief Carnes’s im- phy .XX, (1907) 186 N. Am. Rev. — plications, statistics about what the district (attributing expression Benjamin Dis- sentencing courts do absolutely does noth- raeli). point being that accurate data can that, ing my appellate to counter concern manipulated be points. to make invalid Ac- review, applying principles we are different cordingly, question I have no reason to depending on the sentence before us. accuracy data relied on

III. CORPORATION, MICROSOFT calculated improperly The district Appellant months —a as 87 sentence Rosales-Bruno’s on an er- sentence based within-Guidelines v. On of the Guidelines. calculation roneous PROXYCONN, INC., Cross-Appellant sen- remand, imposed the same the court Having variance. triple-upward tence—a factors, record, and the examined Lee, Director, K. U.S. Michelle this imposing court’s reasons Patent and Trademark major sentence, that this I am convinced Office, Intervenor. signifi- supported by a variance justification, nor were cantly compelling 2014-1542, 2014-1543. Nos. any weight or consid- given the Guidelines Appeals, United States Court Thus, Rosales- I would vacate eration. Circuit. Federal for resen- and remand Bruno’s Moreover, to do so here failure tencing. 16, 2015. June that there is a perception reinforces Eleventh of review the standard double greater deference to sen- giving

Circuit — the recommended

tences above *40 those below.

range than Irey that “there is a recognized

We and abdica- deference

difference between difference, if did If there were no we

tion. meaningful play, role to we have a any sentences never have set aside

would unreasonable, but we substantively (cita- Irey, 612 F.3d at 1194 n.

have.” omitted). quotation marks

tion and internal not, however, expressly set aside

haveWe Re- because it was too harsh.

a sentence

fusing to vacate Rosales-Bruno’s all but eliminates

in these circumstances already distinction between weakened when we review

abdication and deference I sentences. Because believe

harsh Irey namely,

meant what we said — meaningful play role to re-

we have

viewing sentences for substantive reason- only way to because the

ableness—and

affirm Rosales-Bruno’s sentence is to ab-

dicate, respectfully I dissent.

Case Details

Case Name: United States v. Jesus Rosales-Bruno
Court Name: Court of Appeals for the Eleventh Circuit
Date Published: Jun 19, 2015
Citation: 789 F.3d 1249
Docket Number: 12-15089
Court Abbreviation: 11th Cir.
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