United States v. Jesus Rosales-Bruno

Opinion

Case: 12-15089 Date Filed: 06/19/2015 Page: 1 of 90

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-15089 ________________________

D.C. Docket No. 2:11-cr-14016-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS ROSALES-BRUNO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(June 19, 2015)

Before ED CARNES, Chief Judge, WILSON, Circuit Judge, and CORRIGAN, * District Judge.

ED CARNES, Chief Judge:

* Honorable Timothy J. Corrigan, United States District Judge for the Middle District of Florida, sitting by designation. Case: 12-15089 Date Filed: 06/19/2015 Page: 2 of 90

This is the second appeal to come before us involving a sentence imposed on

Jesus Rosales-Bruno because of his conviction for illegally reentering the United

States in violation of 8 U.S.C. § 1326. In the first appeal we vacated his original

sentence after concluding the district court had erred in finding that his prior

Florida conviction for false imprisonment qualified as a “crime of violence”

conviction for enhancement purposes under United States Sentencing Guidelines

§ 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th

Cir. 2012) (Rosales-Bruno I). That error had increased Rosales-Bruno’s advisory

sentencing guidelines range to 70 to 87 months, and the district court had

sentenced him to 87 months imprisonment.

On remand, the district court recalculated Rosales-Bruno’s advisory

guidelines range without the crime of violence enhancement, which lowered it to

21 to 27 months imprisonment. After considering the sentencing factors in 18

U.S.C. § 3553(a), however, the court varied upward from the guidelines range,

again imposing an 87-month prison term. That sentence was 60 months above the

high end of Rosales-Bruno’s revised guidelines range but 33 months below the

statutory maximum of 120 months imprisonment. The sole issue in this appeal is

whether that sentence is substantively unreasonable.

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I.

On August 4, 2007, Rosales-Bruno attacked his girlfriend, Edith Rodriguez.

He shoved her into a stove, and when she tried to leave he punched her in the back

and caused her to fall. When she fell he grabbed her by the face and pinned her

between two beds. He then took out a cigarette lighter and threatened to burn her

with it. Rosales-Bruno was arrested for that violent conduct.

Two months later, in October 2007, while he was out on bond, Rosales-

Bruno attacked Rodriguez again. After pulling their 18-month-old daughter out of

her arms, he punched Rodriguez at least five times and forced her into his car. She

struggled and managed to escape, but Rosales-Bruno chased her down, threatened

to kill her, grabbed her by the hair, pulled some of it out, and started choking her

with his arm. When employees at a nearby business heard Rodriguez’s screams

for help, Rosales-Bruno released Rodriguez but took the little girl with him when

he fled from the scene.

In November 2007, an Indian River County, Florida court convicted

Rosales-Bruno of assault and battery for the first attack on Rodriguez, sentencing

him to fifteen days in jail and a year of probation. While awaiting trial for

battering Rodriguez the second time, Rosales-Bruno failed to report to his

probation officer, didn’t complete required domestic-violence programs, and didn’t

pay probation fees. As a result, in April 2008, the court issued an arrest warrant

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for his violation of probation. Possibly because Rosales-Bruno’s trial for charges

arising from the second attack was scheduled for later in the month, that arrest

warrant was not immediately served. Rosales-Bruno was convicted of battery and

false imprisonment for the second attack. The court sentenced him to six months

in jail and three years of probation. A month later, a United States Immigration

Judge ordered that Rosales-Bruno, a Mexican national, be removed to Mexico, and

he was deported on May 17, 2008.

Sometime in 2010, Rosales-Bruno crossed the border back into the United

States in Arizona and then made his way back to Florida. In March 2011, he was

arrested for violating probation on the April 2008 warrant. While he was in

custody, Immigration and Customs Enforcement agents found that Rosales-Bruno

was illegally in the United States after having been deported. As a result, he was

indicted on one count of illegal reentry following deportation, in violation of 8

U.S.C. § 1326, the applicable penalty provision of which carried a statutory

maximum sentence of 120 months. See 8 U.S.C. § 1326(b)(1). He pleaded guilty

to that charge.

At his first sentencing for his illegal reentry conviction, Rosales-Bruno’s

presentence investigation report calculated his guidelines range as 70 to 87 months

imprisonment. That range resulted in part from a 16-level enhancement of

Rosales-Bruno’s base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on

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the PSR’s characterization of his 2008 Florida conviction for false imprisonment as

a conviction for a “crime of violence.” Rosales-Bruno objected to that

enhancement, contending that a false imprisonment conviction was not

categorically a crime of violence within the meaning of that enhancement. He had

also pleaded guilty to battery in connection with the same incident that led to the

conviction for false imprisonment but, as we noted in our earlier opinion, battery

under Florida law is not categorically a crime of violence either. See Rosales-

Bruno I, 676 F.3d at 1024 (citing Johnson v. United States, 559 U.S. 133, 138–44,

130 S. Ct. 1265, 1270–73 (2010)). The district court properly did not consider the

battery conviction as a crime of violence for purposes of the § 2L1.2(b)(1)(A)(ii)

enhancement.

At that first sentence hearing, Rosales-Bruno also objected to the facts

alleged in ¶ 30 of the PSR, which were taken from the police report filed in

connection with his arrest for the crimes of false imprisonment and battery. He

asserted that the police report was hearsay and that it was an inaccurate account of

the events leading up to his arrest. His hearsay objection challenged only the

court’s use of the police report’s facts “for the purpose of determining whether the

[false imprisonment] conviction [was] a crime of violence.” Although he asserted

that the report was not an accurate recitation of events, he conceded that the district

court could consider the police report “for the purpose of the sentencing” except on

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the issue of whether the § 2L1.2(b)(1)(A)(ii) crime of violence enhancement

applied. Specifically, he said: “[I]t depends on what the Court is considering. The

Court could review [the police report] for the purpose of the sentencing, but not for

the purpose of determining whether the predicate conviction is a crime of

violence.” The district court overruled Rosales-Bruno’s objections and sentenced

him to 87 months imprisonment, the top of his guidelines range. He appealed that

sentence, challenging the crime of violence enhancement he had received for his

false imprisonment conviction.

We agreed with Rosales-Bruno’s contention that false imprisonment under

Florida law is not categorically a crime of violence. See Rosales-Bruno I, 676 F.3d

at 1022. We also decided that the record did not establish that Rosales-Bruno’s

2008 Florida false imprisonment conviction had been under a statutory alternative

that qualifies as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Id. at

1023–24. For that reason, we vacated the sentence and remanded the case to the

district court for resentencing without the crime of violence enhancement.

Although we directed the court to consider the record and resentence Rosales-

Bruno “in light of the 18 U.S.C. § 3553(a) factors,” we “express[ed] no

opinion . . . as to what sentence would now be appropriate.” Id. at 1024. We did

not rule out the court reimposing the same sentence on remand so long as it was

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not based on treating Rosales-Bruno’s false imprisonment conviction as a crime of

violence under § 2L1.2(b)(1)(A)(ii).

Before Rosales-Bruno was resentenced, the probation office amended the

PSR and recalculated his guidelines range without the 16-level crime of violence

enhancement. The result was a range of 21 to 27 months. Even so, the district

court imposed the same sentence as before, relying on the § 3553(a) factors to vary

above the new guidelines range by 60 months. The court did so after conducting a

full resentence hearing, during which it pointed to several factors supporting the

upward variance under § 3553: (1) the history and characteristics of the defendant,

(2) the need to promote respect for the law, (3) the need to provide adequate

deterrence, (4) the nature and circumstances of the present offense, and (5) the

need to protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C).

In determining that an 87-month sentence was appropriate, the district court

placed particular emphasis on Rosales-Bruno’s criminal history. At the resentence

hearing, the court read for the record the PSR’s descriptions of several of Rosales-

Bruno’s prior convictions. Those descriptions detailed the crimes that led to his

2007 convictions for assault and battery and his 2008 convictions for false

imprisonment and battery. Finally, the court read the PSR’s list of Rosales-

Bruno’s 11 driving offense convictions, which included several DUI convictions.

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Rosales-Bruno objected that the sentence was procedurally and substantively

unreasonable.1 He contended that the court had placed “too much emphasis” on

his prior convictions for false imprisonment, for assault, and for battery. This is

his appeal of the sentence imposed on remand.

II.

The district court’s task is to impose a sentence that will adequately

(1) “reflect the seriousness of the offense,” (2) “promote respect for the law,”

(3) “provide just punishment,” (4) “afford adequate deterrence,” (5) “protect the

public from further crimes of the defendant,” and (6) provide the defendant with

any needed training and treatment in the most effective manner. 18 U.S.C.

§ 3553(a)(2). The task is a holistic endeavor that requires the district court to

consider a variety of factors: (1) the nature and circumstances of the offense,

(2) the defendant’s history and characteristics, (3) the kinds of sentences available,

(4) the applicable sentencing guidelines range, (5) pertinent policy statements of

the Sentencing Commission, (5) the need to provide restitution to any victims, and

(6) the need to avoid unwarranted sentencing disparities. Id. § 3553(a).

1 Whatever his procedural objections were, Rosales-Bruno has abandoned them by not raising them on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (issues not briefed on appeal are abandoned); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“Any issue that an appellant wants [us] to address should be specifically and clearly identified in the brief. . . . Otherwise, the issue — even if properly preserved at trial — will be considered abandoned.”) (quotation marks omitted). As a result, substantive reasonableness is the only issue in this appeal.

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As the governing statute makes clear, id., and as we have explained in an en

banc opinion, the advisory guidelines range is but one of many considerations that

a court must take into account in exercising its sentencing discretion. See United

States v. Irey, 612 F.3d 1160, 1217 (11th Cir. 2010) (en banc). “We have not

attempted to specify any particular weight that should be given to the guidelines

range,” id., and we have rejected “any across-the-board prescription regarding the

appropriate deference to give the Guidelines.” United States v. Hunt, 459 F.3d

1180, 1184 (11th Cir. 2006). “We [have] decided instead that, subject to review

for reasonableness, sentencing courts may determine, on a case-by-case basis, the

weight to give the Guidelines, so long as that determination is made with reference

to the remaining section 3553(a) factors that the court must also consider in

calculating the defendant’s sentence.” Irey, 612 F.3d at 1217 (quotation marks

omitted). The Supreme Court has held that variances from the advisory guidelines

range can sometimes be based on the sentencing judge’s disagreement with

whether a guideline properly reflects the § 3553(a) factors, a holding which

indicates that the guidelines are not overly restrictive. See Kimbrough v. United

States, 552 U.S. 85, 105–09, 128 S. Ct. 558, 572–75 (2007).

To arrive at an appropriate sentence, the district court must consider all of

the applicable § 3553(a) factors. United States v. Shaw, 560 F.3d 1230, 1237 (11th

Cir. 2009). That does not mean, however, that it must give all of the § 3553(a)

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factors equal weight. Instead, the sentencing court “is permitted to attach ‘great

weight’ to one factor over others.” Id. (quoting Gall v. United States, 552 U.S. 38,

57, 128 S. Ct. 586, 600 (2007)). The decision about how much weight to assign a

particular sentencing factor is “committed to the sound discretion of the district

court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotation

marks omitted). And, importantly, “if the sentence is outside the Guidelines range,

the [reviewing] court may not apply a presumption of unreasonableness.” Gall,

552 U.S. at 51, 128 S. Ct. at 597.

The abuse of discretion standard is not de novo review; it is, instead,

deferential. Because of that, when reviewing for an abuse of discretion we will

sometimes “affirm the district court even though we would have gone the other

way had it been our call.” Irey, 612 F.3d at 1189 (quotation marks omitted); see

also, e.g., Ledford v. Peeples, 605 F.3d 871, 922 (11th Cir. 2010) (explaining that

when reviewing for an abuse of discretion “the relevant question is not whether we

would have come to the same decision if deciding the issue in the first instance,”

but instead “whether the district court’s decision was tenable, or, we might say, ‘in

the ballpark’ of permissible outcomes”). The Supreme Court has instructed us that

when reviewing an out-of-guidelines sentence for reasonableness, we may:

consider the extent of the deviation, but [we] must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court

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might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

Gall, 552 U.S. at 51, 128 S. Ct. at 597.

The reason we give district courts so much discretion in making sentencing

decisions is that they have great advantages over appellate courts when it comes to

sentencing. One reason is that they do it and we don’t. Because the district court

conducts sentence hearings, it is in a better position to make sentencing

determinations than we are. See id. As the Supreme Court has explained, “[t]he

sentencing judge is in a superior position to find facts and judge their import under

§ 3553(a) in the individual case” because he “sees and hears the evidence, makes

credibility determinations, has full knowledge of the facts and gains insights not

conveyed by the record.” Id. at 51, 128 S. Ct. at 597 (quotation marks omitted).

Another advantage that district courts enjoy when it comes to sentencing is

that they have far greater sentencing experience than appellate judges, many of

whom have never sentenced a single defendant for a single crime. (At the time he

resentenced Rosales-Bruno, the district court judge had twenty years federal

sentencing experience.) On a related point, the Supreme Court has pointed out that

district courts “see so many more Guidelines cases than appellate courts do.” Id. at

52, 128 S. Ct. at 598 (quotation marks omitted). Appellate courts see only the

sentences that are appealed. District courts also see the ones that are not.

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Given the great advantages that district courts enjoy when it comes to

deciding the proper sentence, it would be strange if we didn’t review the

substantive reasonableness of the sentences under a deferential abuse of discretion

standard. See id. at 51, 128 S. Ct. at 597. Although the deference we afford

district courts in this area is not unlimited, it is substantial. Irey, 612 F.3d at 1191.

We cannot –– because the Supreme Court has held that we must not –– presume

that a sentence falling outside the advisory guidelines range is unreasonable. See

Gall, 552 U.S. at 51, 128 S. Ct. at 597. If we did presume an out-of-guidelines-

range sentence was unreasonable, the advisory guidelines would not be advisory.

That the guidelines are in reality only advisory is made unmistakably clear by the

fact that in the most recent year for which data is available more than half —

54% — of the sentences imposed in federal court were outside the guidelines

range. 2 If sentencing outside the advisory guidelines range made a sentence

2 See U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015). According to the Sentencing Commission, of the 74,126 cases that were sentenced in the 2014 fiscal year, 1,645 (2.2%) resulted in sentences above the guidelines range. Id. That total included 343 (0.5%) cases in which the sentence imposed involved a departure above the guidelines range; 1,104 (1.5%) that involved a variance above the guidelines range; 123 (0.2%) that involved both a departure and a variance above the guidelines range; and 75 (0.1%) in which the Sentencing Commission could not determine whether the above guidelines sentence resulted from a variance or a departure.

In another 38,364 (51.8%) of the cases the sentence imposed was below the guidelines range. That number included 18,183 (24.5%) cases in which the court departed downward from the guidelines range; 12,894 (17.4%) cases in which the court varied downward from the guidelines range; 807 (1.1%) cases in which the report indicated both a departure and a variance downward from the guidelines range; 6,068 (8.2%) cases in which the government “sponsored” a below guidelines sentence that the Sentencing Commission did not classify as either a departure

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substantively unreasonable, half of the sentences imposed in federal courts would

be substantively unreasonable. 3

In spite of the breadth of discretion they are given, district courts can and

sometimes do abuse their discretion by imposing a sentence that is substantively

unreasonable. Rita v. United States, 551 U.S. 338, 354, 127 S. Ct. 2456, 2466–67

(2007) (“In sentencing, as in other areas, district judges at times make mistakes

that are substantive. At times, they will impose sentences that are unreasonable.

Circuit courts exist to correct such mistakes when they occur.”); see also Irey, 612

F.3d at 1165 (“We believe that the Supreme Court meant what it said in the Rita

opinion and elsewhere about our duty to correct sentencing mistakes. At the same

time, we recognize that our substantive review of sentences is deferential and that

we only look to see if the district court abused its discretion by committing a clear

error in judgment.”).

A district court abuses its considerable discretion and imposes a

substantively unreasonable sentence only when it “(1) fails to afford consideration

to relevant factors that were due significant weight, (2) gives significant weight to

or a variance; and 412 (0.6%) cases in which there was a sentence below the guidelines range but the Sentencing Commission could not determine whether it resulted from a variance or a departure. Id.

The total of all of these sentences that are above the guidelines range (1,645, or 2.2%) and below the guidelines range (38,364, or 51.8%) is 40,009 (54.0%). See id. 3 See U.S. Sentencing Comm’n, n.2, supra.

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an improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” Irey, 612 F.3d at 1189 (quotation marks omitted).

Because that rarely happens, “it is only the rare sentence that will be substantively

unreasonable.” United States v. McQueen, 727 F.3d 1144, 1156 (11th Cir. 2013).

The party challenging a sentence has the burden of showing that the sentence is

unreasonable in light of the entire record, the § 3553(a) factors, and the substantial

deference afforded sentencing courts. United States v. Langston, 590 F.3d 1226,

1236 (11th Cir. 2009).

III.

The sentence the district court imposed in this case is not substantively

unreasonable. The court followed the spirit and the letter of the Supreme Court’s

and our precedent and obeyed the applicable statutory provisions when it

considered all of the § 3553(a) factors at sentencing. In addition to weighing the

corrected advisory guidelines range, the court also gave weight to several of the

other relevant § 3553(a) factors, including: (1) the history and characteristics of

the defendant, (2) the need to promote respect for the law, (3) the need to provide

adequate deterrence, (4) the nature and circumstances of the crime, and (5) the

need to protect the public. After considering all of the other relevant § 3553(a)

factors, the district court was convinced that they outweighed the corrected

advisory guidelines range, which did not adequately capture Rosales-Bruno’s

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history and characteristics. It was for that reason the district court varied upward

from the guidelines range.

The variance of 60 months above the advisory guidelines range was a major

one. But the Supreme Court has forbidden us from presuming that a sentence

outside the guidelines range is unreasonable. Gall, 552 U.S. at 51, 128 S. Ct. at

597. So, too, has it forbidden us from requiring “extraordinary circumstances to

justify” such a sentence. Id. at 47, 128 S. Ct. at 595 (quotation marks omitted).

The district court supported the 60-month variance with significant

justifications, including the facts of Rosales-Bruno’s earlier violent crimes. The

sentence the district court imposed was 33 months below the statutory maximum

of 120 months, which is a consideration favoring its reasonableness. See 8 U.S.C.

§ 1326(b)(1); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2009)

(holding that a 50-month sentence for violating 8 U.S.C. § 1326(b)(1) was

substantively reasonable in part because the sentence was well below the statutory

maximum of 120 months imprisonment).

The district court’s decision to vary upward from the corrected advisory

guidelines range was within its substantial discretion. Regardless of whether we

would have done the same thing if we had been the sentencer, the sentence was

within the outer bounds of the district court’s substantial sentencing discretion —

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“in the ballpark of permissible outcomes.” Irey, 612 F.3d at 1189 (quotation marks

omitted).

IV.

Neither Rosales-Bruno nor the dissent has pointed to any precedent

establishing that an 87-month sentence imposed for a crime like this one on a

defendant with a criminal history materially identical to Rosales-Bruno’s is

substantively unreasonable. The cases in which we have held sentences to be

substantively unreasonable are materially different from this one. See infra at 42

(citing the three decisions in which we have vacated upward variance sentences as

unreasonable); App’x B (showing the twelve decisions in which we have vacated

downward variance sentences as unreasonable).

Rosales-Bruno’s position that his sentence is substantively unreasonable is

based on three contentions. First, he contends that the district court gave

“significant weight to an improper factor” by resentencing him as though he had a

prior crime of violence conviction qualifying him for a § 2L1.2(b)(1)(A)(ii)

enhancement despite our holding in Rosales-Bruno I that the enhancement did not

apply. Second, he contends that the district court gave unreasonable weight to his

criminal history, which he asserts is not extensive enough to support a variance 60

months above the guidelines range. Third, he contends that the upward variance is

unreasonable because his case does not fall outside the heartland of illegal reentry

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cases. See Irey, 612 F.3d at 1182 (explaining that a case falls “outside the

heartland” when “there [is] something unusual, either about the defendant or the

circumstances surrounding the crime,” that warrants a sentence outside of the

guidelines range). None of those contentions is valid; none of them supports

Rosales-Bruno’s position.

A.

Rosales-Bruno’s first contention is that the district court gave significant

weight to an improper factor by resentencing him as though he still had a prior

crime of violence conviction for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). This

contention implicitly assumes that the district court had to impose a lower sentence

at resentencing because the guidelines range, which is one of the § 3553(a) factors,

had been lowered. The dissent makes that contention explicit, arguing that when

the only change between initial sentencing and resentencing is a decrease in the

advisory guidelines range, the district court must decrease the defendant’s

sentence.4 The dissent thinks that is so because, in its view, anything else would

demonstrate that the district court gave “no weight at all” to the advisory

4 The dissent says it has “little doubt that if the Guidelines had been correctly calculated the first time around, Rosales-Bruno would have been sentenced to 27 months.” Dissenting Op. at 57–58. There is nothing at all in the record to support that speculation — and it is a groundless guess that is contradicted by the district court’s careful explanation of why it varied upward on remand. The best evidence of what the court would have done the first time around with an advisory guidelines range of 21 to 27 months and the § 3553(a) factors that exist in this case is, after all, what it did with that very range and those very § 3553(a) factors on remand.

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guidelines. Dissenting Op. at 58. In the dissent’s view, the evidence that the

district court ignored the advisory guidelines range is so strong that by affirming

the district court we are saying that “no evidence ever would be” enough to reverse

a district court for failing to give enough weight to the advisory guidelines. Id. at

60. No it isn’t, and no we aren’t.

1.

At resentencing, the district court was required to correct the error involving

the § 2L1.2(b)(1)(A)(ii) enhancement, to calculate the guidelines range free of that

error, and to consider that corrected range. It did so. The court was required to

consider and weigh the other § 3553(a) sentencing factors as well. It did so. And

the court was required to determine whether, in its judgment, those other

sentencing factors outweighed the lower advisory guidelines range. It did so. In

the judgment of the experienced district court judge, the other § 3553(a) factors,

especially Rosales-Bruno’s criminal history and record of violence against his

girlfriend, outweighed the advisory guidelines range of 21 to 27 months and the

proper sentence was 87 months.

The dissent’s position is that an advisory guidelines range becomes less

advisory and more mandatory if it was not correctly calculated at the initial

sentence hearing. See Dissenting Op. at 58–60. But why? Why should the fact

that it took an appeal and remand to get the advisory guidelines range correct make

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the corrected advisory guidelines range any less advisory than it would have been

if the district court had correctly calculated it to begin with? We remand in cases

like this one to correct errors in the steps leading to the district court’s sentencing

decision, not to punish the court or the government, or reward the defendant,

because an error was committed the first time. The dissent would hold that if the

district court imposed a sentence that was within a higher guidelines range at the

initial sentencing, it must impose a sentence within the corrected lower guidelines

range on remand. See Dissenting Op. at 58 (“Nothing in the record at Rosales-

Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as

the type of defendant who warranted an upward variance at all . . . .”). In other

words, the advisory guidelines become mandatory on remand.

That is not the law. See United States v. Booker, 543 U.S. 220, 246, 125

S. Ct. 738, 757 (2005); Irey, 612 F.3d at 1183; see also Spencer v. United States,

773 F.3d 1132, 1141–42 (11th Cir. 2014) (noting the “advisory nature of every

provision of the guidelines” and stating that “a district judge cannot treat th[e]

guideline[s] as mandatory”). As the Booker decision establishes, the guidelines

and their application provide advice about sentencing; they do not control it. See

Booker, 543 U.S. at 246, 125 S. Ct. at 757; Irey, 612 F.3d at 1183. That is why a

change in the guidelines range may lead to a change in the sentence but does not

require one.

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The district court must consider the advisory guidelines range in making the

sentencing decision, but it is only one of a dozen or so factors that the court must

take into account. See Booker, 543 U.S. at 245, 125 S. Ct. at 757; see also 18

U.S.C. § 3553(a). The Supreme Court has been clear that “[t]he Guidelines are not

the only consideration . . . . Accordingly, after giving both parties an opportunity

to argue for whatever sentence they deem appropriate, the district judge should

then consider all of the § 3553(a) factors to determine whether they support the

sentence requested by a party.” Gall, 552 U.S. at 49–50, 128 S. Ct. at 596.

That is exactly what the district court did in resentencing Rosales-Bruno. It

correctly recalculated the advisory guidelines range, it gave both parties the

opportunity to argue for the sentence they thought appropriate, and it then

considered the remaining § 3553(a) sentencing factors in deciding what the

sentence should be. The court exercised its authority to assign heavier weight to

several other sentencing factors than it assigned to the guidelines range. Nothing

requires a sentencing court to give the advisory guidelines range as much weight as

it gives any other § 3553(a) factor or combination of factors. See Shaw, 560 F.3d

at 1237 (noting that a sentencing court “is permitted to attach great weight” to

certain factors) (quotation marks omitted); see also Gall, 552 U.S. at 57, 128 S. Ct.

at 600; Williams, 526 F.3d at 1322.

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A sentence’s variance outside the guidelines range, whether upward or

downward, represents a district court’s judgment that the combined force of the

other § 3553(a) factors are entitled to greater weight than the guidelines range.

Otherwise, there would never be any variances. Yet every year thousands of

sentences outside the guidelines are imposed and upheld. See, e.g., U.S.

Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh

Circuit 11 tbl.8 (2015) (showing that in fiscal year 2014 district courts imposed

more than 20,000 sentences outside the guidelines range for reasons other than a

departure). This is one of them.

The dissent points out that “[n]othing in the record at Rosales-Bruno’s initial

sentencing hearing suggests that the court viewed Rosales-Bruno as the type of

defendant who warranted an upward variance at all, let alone such a significant

one.” Dissenting Op. at 58. No, but the record and result of the initial sentencing

show that the district court thought that the appropriate sentence in view of all of

the facts and circumstances was 87 months. At the initial sentencing, no variance

was necessary to reach that appropriate sentence. At the resentencing, after

reconsidering everything in light of the new guidelines range, the court concluded

that an 87-month sentence was still the appropriate sentence in light of all the facts

and circumstances, which is why it varied upward to that same sentence. The goal

of sentencing is not to change the sentence in lockstep with changes in the advisory

21 Case: 12-15089 Date Filed: 06/19/2015 Page: 22 of 90

guidelines range but to “impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” 18 U.S.C.

§ 3553(a). The district court did that.

2.

The contention that ruling out the § 2L1.2(b)(1)(A)(ii) enhancement required

a sentence within the guidelines is wrong for another reason. When it comes to

sentencing, particularized facts about the defendant matter. See Gall, 552 U.S. at

54, 128 S. Ct. at 599 (noting that “the unique facts” of the defendant’s situation

provided support for the district court’s determination that a below guidelines

sentence was appropriate) (emphasis added); Kimbrough, 552 U.S. at 111, 128

S. Ct. at 576 (holding that the district court did not abuse its discretion by imposing

a below guidelines sentence where it “properly homed in on the particular

circumstances of [the defendant’s] case”) (emphasis added); United States v. Pugh,

515 F.3d 1179, 1191 (11th Cir. 2008) (noting that we must vacate a sentence and

remand for resentencing “if we are left with the definite and firm conviction that

the district court . . . arriv[ed] at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case”) (emphasis added) (quotation marks

omitted); see also Irey, 612 F.3d at 1189–90 (“In reviewing the reasonableness of a

sentence, we must, as the Supreme Court has instructed us, consider the totality of

the facts and circumstances.”) (emphasis added).

22 Case: 12-15089 Date Filed: 06/19/2015 Page: 23 of 90

In assigning weight to the § 3553(a) factors as part of the weighing process,

a court may (and should) consider individualized, particularized, specific facts and

not merely the guidelines label that can be put on the facts. The district court did

focus on the individualized, particularized, specific facts in resentencing Rosales-

Bruno. His argument against the sentence he received does not focus on them.

None of the facts about Rosales-Bruno’s illegal reentry conviction or his

extensive criminal history changed between the first and second sentencing. The

only change was that his earlier conviction for false imprisonment could not be

categorized as a “crime of violence” conviction for the limited purposes of the

U.S.S.G. § 2L1.2(b)(1)(A)(ii) enhancement, see Rosales-Bruno I, 676 F.3d at

1022–24, no matter how violent it actually was, and that change resulted in a lower

adjusted offense level and a lower advisory guidelines range.5 The district court

considered the correct range. But the court also considered the unchanged facts

underlying his prior convictions for assault, false imprisonment, two separate

battery offenses, and a dozen driving offenses including some DUIs. As Rosales-

5 In Rosales-Bruno I, we applied the “modified categorical approach” to determine that Rosales-Bruno’s false imprisonment conviction under Florida Statute § 787.02 was not a “crime of violence” for guidelines purposes. See 676 F.3d at 1020. Our decision in Rosales-Bruno I predated the Supreme Court’s opinion in Descamps v. United States, — U.S. —, 133 S. Ct. 2276 (2013), which made clear that the modified categorical approach does not apply to statutes like the Florida false imprisonment statute that contain a “single, indivisible set of elements sweeping more broadly than the corresponding generic offense.” 133 S. Ct. at 2283 (quotation marks omitted). That, of course, does not change the inapplicability of the § 2L1.2(b)(1)(A) enhancement, nor does it change the facts underlying Rosales-Bruno’s prior convictions or the district court’s duty to consider them under § 3553(a).

23 Case: 12-15089 Date Filed: 06/19/2015 Page: 24 of 90

Bruno conceded at the first sentence hearing, the district court could review the

facts underlying his earlier convictions in deciding on the proper sentence for his

conviction in this case. Which is what the court did.

We vacated Rosales-Bruno’s original sentence because the government had

failed to carry its burden of showing from the state court sentencing documents,

instead of from Rosales-Bruno’s actual criminal conduct itself, that his false

imprisonment conviction under Florida law categorically fit within the definition

of “crime of violence” required for application of the § 2L1.2(b)(1)(A)(ii)

guidelines enhancement.6 See Rosales-Bruno I, 676 F.3d at 1024 (citing Shepard

v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005)). This Court never said ––

and given the plain meaning and common understanding of the word “violence”

we would never say –– that what Rosales-Bruno actually did to Edith Rodriguez on

two separate occasions was not violence and more violence.

Rosales-Bruno attacked Edith Rodriguez and shoved her into a stove. When

she tried to escape, he grabbed her by the face and pinned her down between two

beds and took out his cigarette lighter and threatened to burn her with it. Then

while out on bond because of the charges stemming from that violent attack,

Rosales-Bruno attacked Rodriguez again. After pulling their 18-month-old

daughter out of her arms he punched Rodriguez at least five times and forced her

6 See supra note 5.

24 Case: 12-15089 Date Filed: 06/19/2015 Page: 25 of 90

into his car. She struggled and managed to escape, but Rosales-Bruno chased her

down and threatened to kill her and grabbed her hair and pulled some of it out and

started choking her with his arm around her neck. Rodriguez was saved because

some employees at a nearby business heard her screams, causing Rosales-Bruno to

flee, taking the little child with him. His brutal assaults on Rodriguez were violent

crimes as that term is understood in the civilized world, and they may properly be

considered as violent crimes for sentencing purposes other than for the application

of an advisory guidelines enhancement under § 2L1.2(b)(1)(A).

The district court was entitled to look beyond guidelines labels at the actual

facts of Rosales-Bruno’s earlier crimes and to find that some of his criminal

conduct was violent and deserved substantial weight. See Shaw, 560 F.3d at 1237,

1240–41. Given the broad sentencing discretion that district courts have, we are

not “left with the definite and firm conviction that the district court committed a

clear error of judgment,” Irey, 612 F.3d at 1190 (quotation marks omitted), when it

did exactly that. Cf. United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th Cir.

2008) (rejecting defendant’s argument that the district court’s possible

disagreement with how “drug trafficking offenses” were defined under U.S.S.G.

§ 2L1.2 was an insufficient reason to impose a non-guidelines sentence). The

sentencing statute at least authorizes, and arguably requires, a court to do what the

district court did in considering the hard, ugly facts of Rosales-Bruno’s prior

25 Case: 12-15089 Date Filed: 06/19/2015 Page: 26 of 90

convictions. See 18 U.S.C. § 3553(a)(1)–(2) (“The court, in determining the

particular sentence to be imposed, shall consider — (1) . . . the history and

circumstances of the defendant; [and] (2) the need for the sentence imposed — . . .

(C) to protect the public from further crimes of the defendant . . . .”).

B.

We also reject Rosales-Bruno’s second contention, which is that in

resentencing him the district court gave unreasonable weight to his criminal history

as a whole. District courts have broad leeway in deciding how much weight to

give to prior crimes the defendant has committed. See, e.g., United States v.

Overstreet, 713 F.3d 627, 638 (11th Cir. 2013); United States v. Williams, 526

F.3d 1312, 1323–24 (11th Cir. 2008) (holding that “it is within the district court’s

discretion to decide how much weight to give each § 3553(a) factor” and that

previous offenses “fit[] squarely into one of the § 3553(a) factors, the history and

characteristics of the offender”); see also 18 U.S.C. § 3661 (“No limitation shall be

placed on the information concerning the background, character, and conduct of a

person convicted of an offense which a court . . . may receive and consider for the

purpose of imposing an appropriate sentence.”); United States v. Early, 686 F.3d

1219, 1223 (11th Cir. 2012) (“The district court gave great weight to [the

defendant’s] three bank robberies within a week, and to his substantial criminal

history. This is not a clear error in judgment.”).

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And Rosales-Bruno’s criminal history is extensive. We have already

described his two violent attacks on the same woman, the second of which

occurred while he was out on bond pending trial for charges stemming from the

first attack. See supra pp. 3, 25. He violated the terms of his probation in multiple

ways. In addition, Rosales-Bruno has numerous driving-related convictions. In

November 2000 he was convicted of driving without a license. In December 2001

he was convicted of driving under the influence with a blood alcohol level twice

the legal limit. In February 2002 he was convicted of driving with a suspended

license. He was again convicted of driving under the influence and driving with a

suspended license in July 2003. Another incident led to additional convictions in

July 2003 for giving a false name while arrested or detained and driving with a

suspended license. In June 2004 he was convicted on three separate counts for

driving under the influence, driving with a suspended license, and refusing to sign

citations for those offenses. Finally, in April 2007 he was convicted of driving

without a valid driver’s license after the police stopped him for speeding and

observed several open beer containers in his car. 7 And, of course, the present case

arose because he was convicted in 2011 of the felony of illegally reentering the

United States after he had been deported following his conviction for a felony. 7 The dissent suggests that Rosales-Bruno shows “a decreasing pattern of criminality.” Dissenting Op. at 73. The rosy picture the dissent paints of Rosales-Bruno’s criminal trajectory fails to take into account that in 2007 Rosales-Bruno’s criminal conduct escalated from driving drunk to beating up a woman.

27 Case: 12-15089 Date Filed: 06/19/2015 Page: 28 of 90

Rosales-Bruno is not someone who has devoted much time or effort to complying

with the law.

The district court explained in resentencing Rosales-Bruno that it believed

an 87-month sentence was “appropriate” based on his lengthy criminal history,

which the court took into account in weighing several of the § 3553(a) sentencing

factors such as the history and characteristics of the defendant, the need to promote

respect for the law, and the need to provide adequate deterrence. See 18 U.S.C.

§ 3553(a)(1), (a)(2)(A)–(B). The court also agreed with the government that the

§ 3553(a)(2)(C) factor about the need for protection of the public supported an 87-

month sentence. As did the § 3553(a)(1) “nature and circumstances of the [illegal

reentry] offense” factor, which the court considered.

The dissent argues that the district court’s consideration of § 3553(a)(2)(A),

which requires a sentence to “reflect the seriousness of the offense . . . and to

provide just punishment for the offense,” was “clearly unreasonable” because

illegal reentry is, in the dissent’s view, a “relatively low-level offense.” Dissenting

Op. at 71. The dissent is entitled to its opinion, but it is not entitled to substitute its

views about the punishment the crime deserves for the views of the district court.

As we have pointed out, we are not reviewing the district court’s judgment de

novo, but only to determine whether the court abused its considerable discretion.

See Irey, 512 F.3d at 1184.

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In any event, the dissent underestimates the seriousness of Rosales-Bruno’s

conviction. Because Rosales-Bruno committed a felony, and was later deported,

and then reentered the United States illegally, he moved out of what the dissent

calls the “relatively low-level” category of 8 U.S.C. § 1326(a) and into the much

more serious category of § 1326(b)(1). See Dissenting Op. at 71. That escalation

resulted in the statutory maximum for his crime of reentry after deportation

increasing from two years to ten years. The latest crime for which Rosales-Bruno

was convicted, the one for which he was sentenced in this case, is not a “relatively

low-level offense.”

The court’s decision to give more weight to the other § 3553(a) factors

combined than to the advisory guidelines range alone was not unreasonable. See

United States v. Mateos, 623 F.3d 1350, 1368 (11th Cir. 2010) (“[I]t is within [the

district] court’s discretion to decide how much weight to give each of the § 3553

factors as long as it has not committed a clear error of judgment.”); Shaw, 560 F.3d

at 1237 (“The district court . . . is permitted to attach great weight to one factor

over others.”) (quotation marks omitted); Williams, 526 F.3d at 1323 (noting that it

is “within the district court’s discretion to decide how much weight to give each

§ 3553(a) factor”). Placing substantial weight on a defendant’s criminal record is

entirely consistent with § 3553(a) because five of the factors it requires a court to

29 Case: 12-15089 Date Filed: 06/19/2015 Page: 30 of 90

consider are related to criminal history. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C),

(a)(6).

Our precedent supports the conclusion that the district court did not abuse its

discretion in assigning weight to, and weighing, the § 3553(a) sentencing factors.

Under substantive reasonableness review, we have repeatedly affirmed sentences

that included major upward variances from the guidelines for defendants with

significant criminal histories that the sentencing courts weighed heavily. See, e.g.,

Overstreet, 713 F.3d at 634, 636–40 (affirming 420-month sentence where

guidelines recommendation was only 180–210 months); Early, 686 F.3d at 1221–

22 (affirming 210-month sentence where guidelines range was only 78–97

months); Shaw, 560 F.3d at 1238–41 (affirming statutory maximum 120-month

sentence where guidelines range was only 30–37 months); see also United States v.

Turner, 474 F.3d 1265, 1274, 1280–81 (11th Cir. 2007) (affirming 240-month

sentence despite guidelines range of only 51–63 months and defendant’s lack of

criminal history).

Other circuits have affirmed above guidelines sentences for illegal reentry

defendants with criminal histories. See, e.g., United States v. Rivera-Santana, 668

F.3d 95, 98–100, 99 n.5, 106 (4th Cir. 2012) (holding that 240-month sentence for

illegal reentry following removal for an aggravated felony conviction was

substantively reasonable even though the guidelines range was only 120–150

30 Case: 12-15089 Date Filed: 06/19/2015 Page: 31 of 90

months, the variance being justified by the defendant’s extensive criminal history);

United States v. Yanez-Rodriguez, 555 F.3d 931, 946–49 (10th Cir. 2009)

(affirming 144-month sentence for illegal reentry following removal for an

aggravated felony conviction substantively reasonable even though the guidelines

range was only 41–51 months imprisonment, the upward variance being justified

in part by the defendant’s prior conviction for aggravated sexual battery),

overruled in part on unrelated grounds by Puckett v. United States, 556 U.S. 129,

133–34, 129 S. Ct. 1423, 1428 (2009).

C.

Rosales-Bruno’s final contention is that his sentence was substantively

unreasonable because his case fell “squarely within the heartland of illegal reentry

cases” and therefore didn’t merit an upward variance. Relying on impressions that

his attorney has formed from anecdotal “evidence” alone, Rosales-Bruno posits

that many illegal reentry defendants have substantial criminal histories and argues

that because his criminal history is only “average” it cannot serve as the basis for

an upward variance. Putting aside the legal premise of this contention, its factual

premise is false. According to the Sentencing Commission, 86.9% of illegal

reentry offenders in 2013 fell within one of the first four criminal history

31 Case: 12-15089 Date Filed: 06/19/2015 Page: 32 of 90

categories under the sentencing guidelines. 8 Rosales-Bruno does not. He has a

criminal history category of V. His category V status sets him apart from most

illegal reentry offenders, and not to the good. Only 13.1% of illegal reentry

offenders fall into a criminal history category that is comparable to or worse than

his. 9

The dissent believes Rosales-Bruno’s offense is a “mine-run case” of illegal

reentry not deserving of an upward variance. Dissenting Op. at 64–67. In support

of that belief, the dissent says that it “suspect[s] that the criminal history of most

convicted-felon, category V criminals is as bad or worse” than Rosales-Bruno’s

history. Dissenting Op. at 67. But it backs up its suspicion only with its similarly

unsupported belief that whatever is true of Rosales-Bruno’s criminal history must

also be “equally true of other convicted-felon, category V illegal reentrants.” 10 Id.

at 14. “Truly, this is ‘turtles all the way down.’” Rapanos v. United States, 547

U.S. 715, 754 & n.14, 126 S.Ct. 2208, 2233 & n.14 (2006) (plurality op.).

8 See U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses (2014), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick- facts/Quick_Facts_Illegal_ReentryFY13.pdf. 9 See U.S. Sentencing Comm’n, supra n.8. 10 The dissent repeats and relies on the same speculation when it contends that the district court did not provide a justification that was “sufficiently compelling to support the degree of the variance.” Dissenting Op. at 69; see also Gall, 552 U.S. at 50, 128 S. Ct. at 597. It suggests that “the justifications supporting the variance imposed here amount to no more than a recitation of characteristics that are common to most convicted-felon, category V illegal reentrants.” Dissenting Op. at 69 (quotation marks omitted). But there is no alchemy in repetition that transmutes a guess into a longed for fact.

32 Case: 12-15089 Date Filed: 06/19/2015 Page: 33 of 90

Conjecture is not proof, and tautology is not reasoning. If Rosales-Bruno believes

the district court made a clear error of judgment when it sentenced him more

harshly than it would have done in a “mine-run case,” it is his burden to prove as

much. Langston, 590 F.3d at 1236. Neither he nor the dissent offers any proof.

Their unsupported assertions and suspicions do not support a “definite and firm

conviction” that the district court erred when it decided that Rosales-Bruno’s

criminal history and the other § 3553(a) factors made an 87-month sentence

appropriate. See Irey, 612 F.3d at 1190.

The dissent also contends that because the criminal history category

assigned to Rosales-Bruno already reflects the fact that he was convicted of earlier

crimes, the district court had no reason to vary outside the guidelines range. This

is yet another attempt to smuggle into the discussion the dissent’s position that the

court should have treated the guidelines range as mandatory. A correctly

calculated advisory guidelines range always reflects a defendant’s criminal history,

and yet as we’ve discussed, supra p. 12, district courts impose sentences outside of

the guideline ranges more than half the time, because other, non-guidelines factors

outweigh those advisory ranges. Here, the non-guidelines factors that most

influenced the district court are those that focus on the violent facts of Rosales-

Bruno’s earlier crimes.

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Indeed, that our Rosales-Bruno I decision stripped the technical

§ 2L1.2(b)(1)(A)(ii) “crime of violence” description label from acts that were

unquestionably violent crimes suggests that the guidelines range — which the

dissent insists should trump everything else — no longer accurately reflects the

complete “history and characteristics of the defendant.” See 18 U.S.C.

§ 3553(a)(1). The district court had to take into account the actual facts underlying

Rosales-Bruno’s convictions in order to fully account for his “history and

characteristics” in the sentence it imposed. See id.; cf. Early, 686 F.3d at 1222

(noting that the district court found that the advisory “guidelines did not adequately

account for [the defendant’s] criminal history” because the criminal history score

“did not reflect the sustained nature of [the defendant’s] criminal conduct”). Doing

so was not error.

The dissent would require the district court, before it could vary from the

guidelines range, to distinguish Rosales-Bruno’s criminal history from that of “the

average category V illegal reentrant with a felony conviction.” See Dissenting Op.

at 66. To meet those onerous requirements, district courts would have to have a

detailed profile of the average offender for each crime, including the average

number and nature of his prior crimes, and then it would have to show all of its

work in distinguishing the criminal before it from the average one who commits

that crime.

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Despite what the dissent argues, Dissenting Op. at 66, district courts are not

required to figure out who is the “average” offender for each crime, at each offense

level and within each criminal history category, and then explicitly compare the

details of the case before it with the details of the average offender’s average case.

That degree of explicit comparison far exceeds the level of explanation we require

of district courts exercising their sentencing discretion.11 See Irey, 612 F.3d at

1195 (“No member of this Court has ever before indicated that a sentencing judge

is required to articulate his findings and reasoning with great detail or in any detail

for that matter.”); United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009)

(“In general, the district court is not required to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.”) (quotation marks omitted); see also Rita, 551 U.S. at 358, 127

S. Ct. at 2469 (noting that the “sentencing judge’s statement of reasons was brief

but legally sufficient” after the judge “listened to each argument” and “considered

11 The dissent claims its new test would not “require an unprecedented degree of explicit comparison between offenders,” because “[a]ll [it] would require is that the sentencing judge give a credible justification for a major variance from the Guidelines beyond factors that are typical of defendants subject to the same advisory range.” Dissenting Op. at 70. But of course that is what the district court did here: faced with an advisory guidelines range that no longer reflected the violence of Rosales-Bruno’s earlier crimes, the district court described that violence in some detail, showing how in the court’s view Rosales-Bruno was not “typical of defendants subject to the same advisory range,” Dissenting Op. at 70, and then the court varied upward to account for it.

35 Case: 12-15089 Date Filed: 06/19/2015 Page: 36 of 90

the supporting evidence” but found the “circumstances insufficient to warrant a

[lower] sentence”).

The dissent’s proposed new averaging requirement is neither feasible nor

reasonable. It places an impossible burden on district courts to have detailed and

granular knowledge of the criminal résumé of the “average” offender for each

offense of conviction at each offense level and in each criminal history category.

The sentencing guidelines list nearly 60 categories of offenses, 43 offense levels,

and six criminal history categories. See U.S.S.G. Tbl. of Contents; id. Ch. 5 Pt. A,

Sentencing Tbl. Under the dissent’s approach, there would be more than 15,000

(60 × 43 × 6 = 15,480) different kinds of “average” criminals. And the dissent

wants district courts to go further still. It would require them to distinguish among

individual crimes of conviction and among individual aggravating circumstances,

such as the presence or absence of prior felony convictions. See Dissenting Op. at

65–66.

The dissent insists that it doesn’t want a “statistical analysis” and that all it is

asking is for “district courts [to] use their common sense and experience” and their

“good judgment.” Dissenting Op. at 66 n.4. But that is exactly what the district

court did in this case. Drawing on his two decades of experience sentencing

criminals, exercising common sense and good judgment, the district court

determined that an 87-month sentence was warranted for this criminal in this case.

36 Case: 12-15089 Date Filed: 06/19/2015 Page: 37 of 90

Its reward for doing exactly what the dissent said it should do is to be second-

guessed by the dissent.

The dissent argues that “[n]othing in the record suggests that Rosales-Bruno

is any worse than other convicted-felon, category V illegal reentrants, let alone so

much worse that the high end of his advisory sentencing range should be tripled.”

Dissenting Op. at 63. But the district court — more familiar with that record, more

familiar with the defendant, and far more familiar than we are with “other

convicted-felon, category V illegal reentrants” — exercised common sense,

experience, and good judgment when it ruled that an 87-month sentence was

appropriate under the facts and circumstances of this case.

The extensive nature of Rosales-Bruno’s criminal history and the specific

details of his violent criminal conduct made him an outstanding candidate for an

upward variance from the advisory guidelines range after a conviction for illegal

reentry. His history of criminal conduct is worse than that of the typical illegal

reentry conviction defendant. He falls outside, not inside, the heartland of illegal

reentry defendants. See Irey, 612 F.3d at 1182 (explaining that a case is outside

the heartland “if there was something unusual, either about the defendant or the

circumstances surrounding the crime, that warranted a different sentence”). This is

all the more reason why the upward variance sentence is not an abuse of the district

court’s substantial sentencing discretion. See Kimbrough, 552 U.S. at 109, 128

37 Case: 12-15089 Date Filed: 06/19/2015 Page: 38 of 90

S. Ct. at 574–75 (“[A] district court’s decision to vary from the advisory

Guidelines may attract greatest respect when the sentencing judge finds a particular

case outside the heartland to which the Commission intends individual Guidelines

to apply.”) (quotation marks omitted). When we remanded the case to the district

court for resentencing we did not imply, much less hold, that the district court was

forbidden from determining that the appropriate sentence was the same one it had

imposed before. See Rosales-Bruno I, 676 F.3d at 1024 (“We express no opinion,

however, as to what sentence would now be appropriate for Rosales-Bruno.”).

V.

Part II of the dissenting opinion criticizes this Court as a whole for the

message the dissenting judge believes we have sent to district courts about how we

review sentences for reasonableness. The dissent’s criticism is not about the legal

standards that we have announced or the holdings of our decisions. We made clear

in our en banc decision in Irey that the principles we announced in that decision

applied equally to sentences above and below the guidelines range. See Irey, 612

F.3d at 1196 (“What § 3553(a) requires is a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in paragraph (2) of that

subsection.”) (quotation marks omitted); id. at 1197 (stating that the proper

analysis is under “the Goldilocks principle,” which means that “the goal is to lock

38 Case: 12-15089 Date Filed: 06/19/2015 Page: 39 of 90

in a sentence that is not too short and not too long, but just right to serve the

purposes of § 3553(a)”) (quotation marks omitted).

The dissent acknowledges that our decisions, particularly Irey, have

correctly stated the law. See Dissenting Op. at 82–83 (positing that some think

“we have given the impression that we are more likely to vacate a lenient sentence

than a harsh one,” but stating emphatically that “[t]hat is not the law of this

circuit”); id. at 83 (conceding that our en banc decision in “Irey articulated

meaningful lower and upper limits on a court’s sentencing discretion,”); id. at 84

(acknowledging that “Irey articulates the only standard we use to review sentences

for substantive reasonableness, and that standard applies regardless of whether a

sentence imposed by the district court is challenged as too lenient or too harsh”).

So, we have gotten the law right.

The dissent’s criticism of this Court is that even though we have gotten the

law right, it believes that the results of our substantive reasonableness decisions

have sent a message to district courts that we will not vacate unreasonably long

sentences, only unreasonably short ones. See Dissenting Op. at 75, 83. We are not

told whether the accusation is that the Court has done this deliberately or just

negligently. In any event, if we have been sending a message that contrary to the

neutral principles we have announced we will favor upward variances more than

downward ones, either we are not good at sending messages or the district courts

39 Case: 12-15089 Date Filed: 06/19/2015 Page: 40 of 90

of this circuit are not good at receiving them. The irrefutable fact is that district

courts in our circuit impose far more downward variance sentences than upward

variance ones. And the disparity in the rate at which downward and upward

variance sentences are being imposed is increasingly favoring downward

variances. 12

The table that is Appendix A to this opinion, which is drawn from

Sentencing Commission reports and a survey of decisions of this Court, tells the

story. It shows that in fiscal years 2006 through 2014, the nine fiscal years since

the Booker decision for which data is available, the district courts in this circuit

have sentenced 61,866 defendants.13 They imposed 828 upward variance

12 We look to these sentencing facts because they, and not any graphic one-time occurrences, are the most reliable method of determining whether the message the dissent fears has been sent and received. “Cognitive psychology tells us that the unaided human mind is vulnerable to many fallacies and illusions because of its reliance on its memory for vivid anecdotes rather than systematic statistics.” Steven Pinker, quoted in “Steven Pinker: Fighting Talk from the Prophet of Peace,” The Observer, Oct. 15, 2011, available at http://www.theguardian.com/science/2011/oct/15/steven-pinker-better-angels-violence-interview (last visited June 9, 2015). 13 This figure comes from data collected by the United States Sentencing Commission. U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2013, Eleventh Circuit 11 tbl.8 (2014); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2012, Eleventh Circuit 11 tbl.8 (2013); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2012); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2010, Eleventh Circuit 11 tbl.8 (2011); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2009, Eleventh Circuit 11 tbl.8 (2010); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2008, Eleventh Circuit 11 tbl.8 (2009); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2007, Eleventh Circuit 11 tbl.8 (2008); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2006, Eleventh Circuit 11 tbl.8 (2007).

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sentences, which amounts to only 1.34% of all sentences.14 By contrast, they

imposed 9,307 downward variance sentences, which amounts to approximately

15.04% of all sentences. 15 That means in the post-Booker era, the only period in

which variances have been possible, there have been more than eleven times as

many downward variance sentences as upward variance sentences.

Not only that, but during those nine years the number of downward variance

sentences has gone up every year but one, 16 increasing overall from 437 in 2006 to

1,516 in 2014 — a 247% increase in downward variance sentences. The rate at

which district courts in our circuit have granted downward variances has more than

tripled as well, from 6.59% in 2006 to 22.52% in 2014. Upward variances, by

contrast, peaked in 2011 at 116 (1.67%) and decreased each of the next three years,

falling to 92 (1.37%) by 2014. And in contrast with the 247% increase in

14 These figures also come from Table 8 in the Sentencing Commission reports cited supra in footnote 13. They exclude instances where a district court imposed a departure, as opposed to a variance, above or below the guidelines range. They also exclude instances in which the district court appears to have imposed both a departure and a variance above or below the guidelines range. However, the data in Table 8 of those Sentencing Commission reports also shows that courts in our circuit grant downward departures far more often (about five times more often if we exclude government-sponsored downward departures, and about 45 times more often if we include them) than they grant upward departures. Which means that if we included departures in our numbers the results would show an even greater disparity between outside-the- guidelines sentences favorable to defendants as opposed to the government. 15 See supra n.13. Like the figures cited in footnote 14, supra, these exclude departures. They also exclude a category the Sentencing Commission calls “government-sponsored” below guidelines sentences that includes both variances and departures. 16 The number of downward variances decreased one year (from 1,272 in 2010 to 1,215 in 2011). See supra n.13. Every other one of the nine years from 2006 to 2014, they increased.

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downward variance sentences, upward variance sentences have gone up only

39.4% in the post-Booker years. A chart showing the contrasting trends is

contained in Appendix C to this opinion.

If, as the dissent insists, the results of our reviews for reasonableness have

been sending district courts a message that an upward variance sentence is less

likely to get vacated than a downward variance one, it does not appear that the

district courts have gotten that message. Or if they have, they simply don’t care.

They have indisputably been imposing more downward variance sentences and

have done so at an increasing rate.

The real reason that district court judges have not responded to the message

that the dissent sees hidden in the results of our sentencing review is that there is

no such message. The data in the chart that is Appendix A shows that. The district

courts in our circuit have imposed 828 upward variance sentences in the nine years

for which we have data since the year the Booker decision was released in 2005.

Contrary to the dissent’s claim that “[w]e have not . . . expressly set aside a

sentence because it was too harsh,” Dissenting Op. at 85, we have in fact vacated

three of those upward variance sentences as unreasonably long. See United States

v. Valdes, 500 F.3d 1291, 1292 (11th Cir. 2007) (vacating a 108-month upward

variance sentence for bank fraud where the guidelines range was 41 to 51 months);

United States v. Lopez, 343 F. App’x 484, 485–86 (11th Cir. 2009) (unpublished)

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(vacating a 60-month upward variance sentence for smuggling unlawful aliens into

the country where the guidelines range was 33 to 41 months); United States v.

Gardner, 255 F. App’x 475, 476–77 (11th Cir. 2007) (unpublished) (vacating as

unreasonable a sentence for misprision of a felony that was 36 months, where the

guidelines range was 10 to 16 months, regardless of whether it resulted from an

upward departure or upward variance). 17 This means that we have vacated as

17 The dissent spends several pages on an unsuccessful attempt to distinguish or belittle our decisions vacating as unreasonably long upward variance sentences. See Dissenting Op. at 74, 77–82. It first contends that those decisions do not count because none of them “impose a sentencing ceiling on remand.” Id. at 74. There are two fundamental flaws with that criticism. The first is that the dissent never explains why that matters, and it does not. A decision holding a sentence is unreasonably long is a decision that the sentence is unreasonably long regardless of whether the opinion specifies how long the sentence on remand can be without also being unreasonable.

The second flaw in the dissent’s position is that ignores the fact that, with only one exception, when we have vacated sentences as unreasonably short we have not specified the sentence that should be imposed on remand either. So under the dissent’s own reasoning only one of our downward variance decisions counts in favor of its position –– one decision in nine years. It is also worth noting that the one case in which we specified the only reasonable sentence that could be imposed on remand is Irey. In it, the top and bottom of the guidelines range were the same as the statutory maximum, which meant that the only sentence within the guidelines range was the maximum sentence. 612 F.3d at 1224. We decided that the facts of the crimes in Irey were so horrendous that no downward variance sentence could be reasonable “under the totality of the facts and circumstances of th[e] case.” Id. Our dissenting colleague agreed, joining in full that holding and all of the rest of the Irey opinion. We did in the Irey case exactly what he believed we were required to do in that case. He was right then and is wrong now.

Next, the dissent argues that Valdes and Lopez were decided on procedural, not substantive, unreasonableness grounds, citing Irey for the proposition that “the adequacy of a district court’s . . . sentence explanation is a classic procedural issue.” Dissenting Op. at 78–79 & n.13 (emphasis omitted). That reasoning misreads Irey. The language the dissent cites in Irey stands for the unremarkable proposition that if a district court fails to follow the required procedures — chief of which is to consider the § 3553(a) factors — the court has committed a procedural error. 612 F.3d at 1194; see also Gall, 552 U.S. at 51, 128 S. Ct. at 597 (explaining that “failing to consider the § 3553(a) factors, . . . or failing to adequately explain the chosen sentence” is “procedural error”); United States v. Scott, 426 F.3d 1324, 1329–30 (11th Cir. 2005)

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(“[T]he district court explicitly acknowledged that it had considered [the defendant’s] arguments at sentencing and that it had considered the factors set forth in § 3553(a). This statement alone is sufficient in post-Booker sentences.”).

The Valdes opinion states that the “reasons discussed were inadequate to support an extraordinary variance to a sentence of 108 months,” not that the discussion of the reasons was itself inadequate. 500 F.3d at 1292 (emphasis added). The dissent misses that distinction. Similarly, in Lopez, we explicitly stated that the district court had complied with its procedural duties: it considered the § 3553(a) factors. 343 F. App’x at 486. When we vacated the sentence, we did so on substantive grounds, namely that the court’s “justification” — its reason — for the sentence was inadequate, not its discussion of that justification. See id. Further, the dissent does not argue that the downward variance sentences we have vacated for similar reasons should not count. See, e.g., United States v. Hooper, 566 F. App’x 771, 773 (11th Cir. 2014) (unpublished) (noting that “the court failed to cite a sufficiently significant justification for granting a 100%, 70-month downward variance”); United States v. McQueen, 727 F.3d 1144, 1159 (11th Cir. 2013) (noting that the district court offered “no reasoned justification other than that [a codefendant] was getting a lower sentence” for defendants’ downward variances); United States v. Pugh, 515 F.3d 1179, 1201 (11th Cir. 2008) (“Quite simply, in our view, the district court did not support this major departure with a significant justification.”) (quotation marks omitted).

The dissent also argues that Valdes and Gardner were decided under precedents that are no longer good law. (Those precedents required an extraordinary justification for an extraordinary variance.) Dissenting Op. at 81–82. But so what? The dissent does not claim that the decisions were inconsistent with then-binding precedent. See id. Why would decisions correctly applying the law at the time suggest anything other than that we will continue to correctly apply the law? Those two decisions vacating upward variance sentences as substantively unreasonable show that we will apply our binding precedent on reasonableness, which the dissent concedes correctly states the law.

We note (as does the dissent, Dissenting Op. at 78–79) that two of these three decisions are unpublished and as such do not serve as binding precedent about the law. See 11th Cir. R. 36-2. Judge Martin recently seemed to seize on that point in her dissent from an unpublished opinion in United States v. Rivero, No. 14-10121, 2015 WL 1542684, at *5 (11th Cir. Apr. 8, 2015) (unpublished) (Martin, J., dissenting) (“[D]uring the . . . period since Booker, I am aware of no published opinion in which we have held that an above-Guidelines sentence was substantively unreasonable.”) (emphasis added). But the charge of the dissent in this case and of Judge Martin’s dissenting opinion in Rivero is not that we haven’t published enough opinions correctly stating the law concerning reasonableness review. It is, instead, that the results of our sentence review have somehow sent a message contrary to the neutral principles that we have announced in our opinions, including published ones.

Given that it is the result that matters under the dissent’s theory, it makes no difference whether the result comes in a published or an unpublished opinion. Our unpublished opinions are, after all, as readily accessible online as our published ones. Ironically, Judge Martin’s dissenting opinion in Rivero, like the majority opinion in that case, is itself unpublished. Still,

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unreasonable 0.36% of the upward variance sentences that have been imposed.

There have been 9,307 downward variance sentences, and we have vacated 12 of

them as unreasonably short. This means that we have vacated as unreasonable

only 0.13% (about one-eighth of one percent) of downward variance sentences.

So if we assume, as the dissent’s position does, that district court judges are

closely following our sentencing review results, what they will see is that we mean

what we say about deferring to their discretion when sentencing. We vacate on

substantive reasonableness grounds less than 1% of the sentences that vary upward

or downward from the guidelines range. The message we send to the district

courts is not, as the dissent suggests, “that they enjoy virtually unfettered

sentencing discretion, so long as they sentence harshly.” Dissenting Op. at 75. It

is instead that district courts enjoy substantial discretion in sentencing regardless of

whether they sentence above or below the guidelines — exactly what our

precedents say. 18 See Mateos, 623 F.3d at 1366; Irey, 612 F.3d at 1188–89; Shaw,

that unpublished opinion adequately sends her message about her position on the sending-a- message theory. 18 The dissent attempts to bolster its argument with dicta from separate opinions of another judge and a former judge of this Court and the views of two of the more than 1.2 million attorneys in this country. The attempt fails.

First, the dissent discusses at length Judge Martin’s concurrence in the judgment in United States v. Early, 686 F.3d 1219 (11th Cir. 2012). See Dissenting Op. at 55, 68, 75–77 & n.11, 83. Judge Martin based her concurring opinion’s argument in part on a statement that, as of 2012, she had “found [no cases] in which we vacated an upward variance from the Sentencing Guidelines on reasonableness grounds.” Early, 686 F.3d at 1223 (Martin, J., concurring in the

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judgment). We do not question the good faith of our colleague in making that statement, but the fact is that the Valdes, Lopez, and Gardner decisions, all vacating upward variance sentences as unreasonable, were on the books well before 2012 when Early was decided. See Valdes, 500 F.3d at 1291 (decided in 2007); Lopez, 343 F. App’x at 484 (decided in 2009); Gardner, 255 F. App’x at 475 (decided in 2007).

Next, the dissent suggests that Judge Barkett “identified the same problem” as Judge Martin “even before Irey was decided,” pointing to Judge Barkett’s separate opinion in United States v. Docampo. Dissenting Op. at 75 n.10; see also 573 F.3d 1091, 1110 (11th Cir. 2009) (Barkett, J., concurring in part and dissenting in part). The dissent quotes very carefully and selectively from Judge Barkett’s Docampo opinion to make that argument, as it must because what she actually argued in it is not the position the dissent advances. In Docampo, the defendant was sentenced at almost the exact mid-point of the advisory guidelines range. Docampo, 573 F.3d at 1093, 1095 (affirming sentence of 270 months, just below the midpoint of Docampo’s guidelines range of 248 to 295 months). And so Judge Barkett’s argument — which she made just after the language the dissent quotes — was that “[w]e should . . . be willing to find that, in a case that warrants it, a within-guidelines sentence is greater than necessary to serve the objectives of sentencing.” Id. at 1110 (Barkett, J., concurring in part and dissenting in part) (emphasis added; quotation marks omitted). Here, of course, the basis of the dissent’s position is that a within-guidelines sentence — and only a within-guidelines sentence — is reasonable. See, e.g., Dissenting Op. at 56–60 (arguing that the district court’s failure to give the guidelines “real weight” renders Rosales-Bruno’s sentence unreasonable). Both Judge Barkett’s opinion in Docampo and the dissent in this case are wrong.

Finally, the dissent cites two pieces of what it refers to as “scholarly commentary” that it believes “echo[]” Judge Martin’s concern. Dissenting Op. at 76 n.11; see also Adam Shajnfeld, The Eleventh Circuit’s Selective Assault on Sentencing Discretion, 65 U. Miami L. Rev. 1133 (2011); Daniel N. Marx, Unwarranted Disparity in Appellate Review of Non-Guidelines Sentences for Substantive Reasonableness, 29 No. 2 Westlaw J. White-Collar Crime 1 (2014). Well, it is at least commentary. In his article, lawyer Shajnfeld makes the same error as the dissent and Judge Martin, claiming that we have never found a sentence “unreasonably severe.” Shajnfeld, supra, at 1155. He ignores Valdes, Lopez, and Gardner all of which predate his article. See Valdes, 500 F.3d at 1291 (decided in 2007); Lopez, 343 F. App’x at 484 (decided in 2009); Gardner, 255 F. App’x at 475 (decided in 2007). And it is passing strange that the dissent would rely at all on an article whose central premise is that Irey — which our dissenting colleague joined in full — was wrongly decided. See generally Shajnfeld, supra.

Attorney Marx’s article echoes Judge Martin more literally, quoting the same section of her opinion that the dissent quotes. Marx, supra, at 7 (quoting Early, 686 F.3d at 1223 (Martin, J, concurring in the judgment)); see Dissenting Op. at 76. But it appears unlikely that Judge Martin, writing about this Court in 2012, could have been talking about the same cases Marx has in mind, because his article, which focuses on sentences in white-collar crime cases, discusses what he calls an “unwarranted disparity” between two cases decided in 2014 — one by the Sixth Circuit and the other by the D.C. Circuit. See generally Marx, supra. (comparing United States v. Musgrave, 761 F.3d 602 (6th Cir. 2014) and United States v. Ransom, 756 F.3d 770 (D.C. Cir.

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560 F.3d at 1238; Williams, 526 F.3d at 1322; see also Dissenting Op. at 68

(“District courts clearly enjoy a wide range of sentencing discretion after our

decisions in Irey and Pugh . . . .”). And district courts use their “wide range of

sentencing discretion” to sentence below the guidelines range more than eleven

times as often as they do to sentence above it.19

The numbers also refute the dissent’s argument when we compare the rate at

which we vacate upward variance sentences with the rate at which we vacate

downward variance ones. We have vacated only one-eighth of one percent

(0.13%) of downward variance sentences that district courts have imposed, while

we have vacated more than a third of a percent (0.36%) of upward variance

sentences. In other words, an upward variance sentence has been more than twice

as likely to be found unreasonable as a downward variance sentence — exactly the

2014)). Other than quoting Judge Martin’s separate opinion in Early, Marx’s article mentions our circuit only in passing, saying that it is one of the circuits that have “vacated below- guidelines sentences for white-collar offenders as being substantively unreasonable.” Marx, supra, at 6 (quotation marks omitted). We are indeed one of several circuits that have done that. The article fails to even mention our cases vacating upward variances. Instead, it relies on a 2012 report that it states “did not cite any cases in which appeals courts had vacated above- guidelines sentences in fraud cases as being substantively unreasonable.” Id. (emphasis added). That is not true. Both the report and the article citing it came out after our 2007 decision in Valdes, where we vacated as substantively unreasonable an upward variance sentence for a bank- fraud conviction. See 500 F.3d at 1292 (“Nelson Valdes pled guilty and was convicted of bank fraud . . . .”). 19 The dissent contends that this makes no difference, because “[j]ust because district courts can vary above the Guidelines with virtually no scrutiny does not mean that district courts will vary above the Guidelines with regularity.” Dissenting Op. at 83. So the dissent concedes that district courts are not heeding the message it believes our decisions are sending. Okay.

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opposite of what the dissent believes. The message that we have sent, if any, is not

“that we are more likely to vacate a lenient sentence than a harsh one,” Dissenting

Op. at 82, but just the opposite.

The dissent does not challenge any of our decisions vacating sentences as

unreasonably short, and it is easy to understand why. 20 Appendix B to this opinion

is a table listing all of the decisions in which this Court has vacated a downward

variance sentence as unreasonably short during the nine years between 2006 and

the current date. Although we have vacated four times as many downward

variance sentences (twelve) as upward variance sentences (three), remember that

there were more than eleven times as many downward variance sentences imposed

(9,307) as upward variance sentences (828). See App’x A. If we had been

vacating downward and upward variances at the same rate, we would have vacated

more than thirty-three downward variances (the three upward variances times

eleven equals thirty-three) instead of only twelve.

And as Appendix B shows, seven of the twelve cases in which we vacated

sentences as unreasonably short involved serious crimes where the sentencing

court had varied all the way down to no jail time at all. Those probation-only cases

include fraud crimes in which the losses ranged from hundreds of thousands of

20 Indeed, our dissenting colleague participated in deciding three of those cases. See United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013); Irey, 612 F.3d 1160 (en banc); United States v. Hendrick, 324 F. App’x 867 (11th Cir. 2009) (unpublished).

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dollars to 1.4 billion dollars. E.g., United States v. Hayes, 762 F.3d 1300 (11th

Cir. 2014); United States v. Livesay, 587 F.3d 1274 (11th Cir. 2009). They also

include a case where a law enforcement officer’s sentence included no jail time

even though he had been convicted for beating a handcuffed and unresisting

arrestee and then locking him in a hot car. United States v. Hooper, 566 F. App’x

771 (11th Cir. 2014) (unpublished).

Of the remaining five cases in which we vacated as unreasonable downward

variance sentences, two were cases in which the defendant had committed a serious

crime but received virtually no jail time. In both cases the custodial term was little

more than a fig leaf — and a tiny one at that — insufficient to cover the naked

unreasonableness of the sentence. In one of those cases, a participant in a massive

nine-year securities fraud that had resulted in more than a billion dollars in losses

for shareholders had been sentenced to only seven days in detention. See United

States v. Martin, 455 F.3d 1227 (11th Cir. 2006). And in the other, a defendant

who had defrauded a bank out of nearly $500,000 had been sentenced to detention

in the custody of the United States Marshal for only five hours, to be served either

the same day as sentencing or whenever convenient, to be followed by probation.

See United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006). That was not so much

a detention sentence as it was a minor delay in dinner plans. The point is, where

we have vacated downward variance sentences as unreasonably short, we have

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done so because they really were unreasonably short given the facts and

circumstances of the cases including, most notably, the crimes.

Our decisions simply do not show, as the dissent believes, that we review

below guidelines sentences with especially close scrutiny, searching for reasons to

vacate them. Instead, we regularly reject reasonableness challenges by the

government to downward variance sentences after applying the same neutral

principles that we applied in Irey and other decisions. See, e.g., United States v.

McBride, 511 F.3d 1293, 1295, 1297–98 (11th Cir. 2007) (affirming a sentence of

84 months, which was a downward variance from the guidelines range of 151 to

188 months, for a defendant who possessed 981 images and 45 videos of child

pornography); United States v. Gray, 453 F.3d 1323, 1323–25 (11th Cir. 2006)

(affirming a sentence of 72 months, which was a downward variance from the

guidelines range of 151 to 188 months, for a defendant who distributed child

pornography); United States v. Williams, 435 F.3d 1350, 1353–55 (11th Cir. 2006)

(affirming a sentence of 90 months, which was a downward variance from the

guidelines range of 188 to 235 months, for a defendant who sold five grams of

crack cocaine); United States v. Neufeld, 223 F. App’x 887, 888–90 (11th Cir.

2007) (unpublished) (affirming a sentence of 48 months, which was a downward

variance from the guidelines range of 135 to 168 months, for a defendant who

conspired to distribute MDMA); United States v. Halsema, 180 F. App’x 103,

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103–05 (11th Cir. 2006) (unpublished) (affirming a sentence of 24 months, which

was a downward variance from the guidelines range of 57 to 71 months, for a

defendant who possessed child pornography); United States v. Vawter, 167 F.

App’x 101, 101–03 (11th Cir. 2006) (unpublished) (affirming a sentence of 6

months, which was a downward variance from the guidelines range of 24 to 30

months, for a defendant who kited checks).

To summarize, the dissent’s underlying theory is that Rosales-Bruno is the

victim of what it claims is a bias in favor of longer sentences because, even though

we have gotten the law right, the results of our decisions have signaled to district

courts that we are more likely to affirm upward variance sentences than downward

variance ones. The primary problem with the theory is that the facts established by

the undisputed data show that no such signal has been sent or received. The

message that the results of our decisions have sent is that in our substantive review

of sentences we defer to the district courts’ broad discretion regardless of whether

they sentence above or below the guidelines range, except in the rare instances

where they impose a clearly unreasonable sentence. And the district courts’

sentencing behavior shows that they have not received the phantom message the

dissent fears we have sent. Since Booker, the district courts in this circuit have

imposed eleven times as many downward variances as upward variances, and they

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have done so at a steadily increasing rate. To quote the eminent logician Mark

Twain: “How empty is theory in presence of fact!” 21

VI.

After considering and giving reasonable weight to each of the relevant

§ 3553(a) factors, the district court in this case imposed an upward variance

sentence. The sentence did not exceed the outer bounds of the wide range of

discretion that district courts are afforded. Given all of the relevant facts and

circumstances, the sentence is not unreasonable.

AFFIRMED.

21 Mark Twain, A Connecticut Yankee in King Arthur’s Court 420 (1st ed. 1889).

Instead of questioning the accuracy of any of the sentencing data cited in this opinion, the dissent quotes the old cliché that “[t]here are three kinds of lies: lies, damned lies, and statistics.” Dissenting Op. at 83 n.14. That hackneyed formulation does not fit here because the sentencing facts and sentencing review facts cited in this opinion are not mere statistical extrapolations. Given how clearly the actual facts refute its thesis, the dissent should instead be bemoaning “facts, damned facts, and more facts.”

52 Case: 12-15089 Date Filed: 06/19/2015 1 Page: 53 of 90 APPENDIX A

Upward Variance Sentences Vacated as Unreasonable Downward Variance Sentences Vacated as Unreasonable Fiscal Number of Number Number of Upward Fiscal Number of Number of Number of Year Defendants of Variance Sentences Year Defendants Downward Downward Variance Sentenced Upward Vacated as Sentenced Variances Sentences Vacated as Variances Unreasonable2 Unreasonable 2 2014 6,731 92 0 2014 6,731 1,516 2 2013 6,716 94 0 2013 6,716 1,282 2 2012 6,837 100 0 2012 6,837 1,278 0 2011 6,932 116 0 2011 6,932 1,215 1 2010 6,989 107 0 2010 6,989 1,272 2 2009 7,098 99 1 2009 7,098 984 1 2008 7,038 94 1 2008 7,038 740 2 2007 6,892 60 1 2007 6,892 583 0 2006 6,633 66 0 2006 6,633 437 2 Totals Totals 2006–14 61,866 828 3 2006–14 61,866 9,307 12 Rate of Vacatur of Upward Variance Sentences: 0.36% Rate of Vacatur of Downward Variance Sentences: 0.13%

1 The data showing the number of defendants sentenced and the number of variances is drawn from U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2013, Eleventh Circuit 11 tbl.8 (2014); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2012, Eleventh Circuit 11 tbl.8 (2013); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2012); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2010, Eleventh Circuit 11 tbl.8 (2011); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2009, Eleventh Circuit 11 tbl.8 (2010); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2008, Eleventh Circuit 11 tbl.8 (2009); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2007, Eleventh Circuit 11 tbl.8 (2008); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2006, Eleventh Circuit 11 tbl.8 (2007). 2 The Sentencing Commission tracks its statistics by fiscal year instead of calendar year. To maintain consistency with that practice for the purposes of this chart we have counted United States v. Gardner, 255 F. App’x 475 (11th Cir. Nov. 23, 2007) (unpublished), as a fiscal 2008 case and United States v. Livesay, 587 F.3d 1274 (11th Cir. Nov. 16, 2009) as a fiscal 2010 case. Case: 12-15089 Date Filed: 06/19/2015 Page: 54 of 90 APPENDIX B

Downward Variance Sentences Vacated as Substantively Unreasonable

Criminal Conduct Guidelines Range Sentence Vacated as Unreasonable United States v. Hayes, Business owner masterminded a public corruption 135–168 months in Probation with no term of 762 F.3d 1300 scheme — including over $600,000 in bribes to prison imprisonment (11th Cir. 2014) state official in charge of higher education, as well as a money laundering conspiracy — that yielded more than $5 million in ill-gotten profits. United States v. Hooper, Officer punched a much smaller, handcuffed, 70–87 months in Probation with no term of 566 F. App’x 771 unresisting arrestee multiple times in the face prison imprisonment (11th Cir. 2014) before locking him in a hot car. United States v. Corrections officers head-slammed, knuckle- Defendant #1: Defendant #1: McQueen, rapped, and beat with a broken broomstick 15–21 months in 1 month in prison 727 F.3d 1144 underage inmates, provoking one inmate to fight prison (11th Cir. 2013) back, and then “fiercely choked” him while he begged for mercy; officers continued to beat the Defendant #2: Defendant #2: breathless inmate until he was “curled into a 151–188 months in 12 months in prison defensive ball,” lured him to his feet only to punch prison him in the nose, and finally choked him until he was unconscious. Officers viciously beat at least five other inmates on separate occasions, leaving injuries that were visible days after the attacks, and then obstructed an investigation into their conduct. United States v. Kuhlman, Doctor bilked insurance providers of nearly $3 57–71 months in Probation with no term of 711 F.3d 1321 million in payments over five years for services he prison imprisonment (11th Cir. 2013) knew were not rendered to his patients. He admitted that was motivated by greed, not need. United States v. Jayyousi, From 1993 to 2001, defendants provided money, 360 months to life in 208 months in prison 657 F.3d 1085 recruits, and equipment to radical and violent prison (11th Cir. 2011) Islamist terrorist organizations, including al- Qaeda. Defendants were also convicted of conspiracy to murder, kidnap, or maim persons overseas.

54 Case: 12-15089 Date Filed: 06/19/2015 Page: 55 of 90 Criminal Conduct Guidelines Range Sentence Vacated as Unreasonable United States v. Irey, Remorseless defendant raped, sodomized, tortured, 360 months in prison 210 months in prison 612 F.3d 1160 and humiliated over fifty impoverished (11th Cir. 2010) Cambodian children, some of whom were as young as four years old, over a five year span. He memorialized the cruel acts in more than 1,200 photographs that he then disseminated on the Internet. United States v. Livesay, 3 Senior accounting manager knowingly played a 78–97 months in Probation with no term of 587 F.3d 1274 critical role in a massive nine-year securities and prison imprisonment (11th Cir. 2009) mail fraud scheme that resulted in nearly $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. United States v. Hendrick, Defendant was guilty of conspiracy, obstruction of Unspecified Probation with no term of 324 F. App’x 867 justice, and witness tampering. imprisonment (11th Cir. 2009) United States v. Pugh, Over a period of several years, defendant 97–120 months in Probation with no term of 515 F.3d 1179 knowingly downloaded and distributed to other prison imprisonment (11th Cir. 2008) web users at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male. Defendant admitted that he once saw an image of a man having sex with a two- or three- year-old who had a dog collar around her neck. There were ten known child victims in the images found on defendant’s computer.

3 The defendants in the related cases Livesay, McVay, and Martin, all of which arise out of the same criminal activity, were originally sentenced in 2004, before the Booker decision rendered the Sentencing Guidelines merely advisory. See 543 U.S. at 246, 125 S. Ct. at 757. Their below guidelines sentences therefore were classified as departures (which were allowed before Booker) instead of variances (which were not). Because we reviewed those sentences under the Booker reasonableness standard, we have included them in this chart and in our totals for variances. Doing so increases our rate of vacatur of downward variances, inclusive of the 2014 cases, from 0.10% to 0.13%.

55 Case: 12-15089 Date Filed: 06/19/2015 Page: 56 of 90 Criminal Conduct Guidelines Range Sentence Vacated as Unreasonable United States v. McVay,3 Treasurer of company knowingly participated in a 87–108 months in Probation with no term of 294 F. App’x 488 massive nine-year securities and mail fraud prison imprisonment (11th Cir. 2008) scheme that resulted in nearly $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. United States v. Martin,3 CFO knowingly participated in a massive nine- 108–135 months in 7 days in detention 455 F.3d 1227 year securities and mail fraud scheme that resulted prison (11th Cir. 2006) in nearly $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. United States v. Crisp, Comptroller of construction company knowingly 24–30 months in Probation and 5 hours in 454 F.3d 1285 prepared false financial statements that defrauded prison custody of U.S. Marshal (11th Cir. 2006) a bank out of nearly $500,000.

56 Case: 12-15089 Date Filed: 06/19/2015 Page: 57 of 90 APPENDIX C 25.00%

20.00%

15.00%

Downward Variance Rate Upward Variance Rate 10.00%

5.00%

0.00% 2006 2007 2008 2009 2010 2011 2012 2013 2014

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CORRIGAN, District Judge, concurring in the result:

Eighty-seven months imprisonment is a very long sentence in an illegal

reentry case where this Court has previously determined that the guidelines range

is 21-27 months. I was concerned that, in arriving at the exact same 87 month

sentence on remand that he had previously imposed (the high end of the now-

discredited guidelines range), the district judge did not pay sufficient heed to this

Court’s decision and did not consider the guidelines as corrected. However,

Rosales-Bruno has not asserted this ground, or any other procedural irregularity, on

appeal. As to the only ground actually raised on appeal, whether the 87 month

sentence is substantively reasonable, I agree that the “sentence did not exceed the

outer bounds of the wide range of discretion that district courts are afforded.” Maj.

Op. at 52. Thus, I concur in the result. I think it unnecessary to the decision and

unwise for me, as a visitor, to join in the important debate between Chief Judge

Carnes and Judge Wilson regarding Eleventh Circuit sentencing precedent.1

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WILSON, Circuit Judge, dissenting:

For illegally reentering the United States, a crime with no statutory

minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was

sentenced to more than 7 years in prison. In imposing this sentence, the district

court more than tripled the upper end of the applicable Guidelines range. The

justifications supporting this major variance are insufficient, and this sentence—

the product of a clear error in judgment—is “greater than necessary[] to comply

with the purposes set forth” in 18 U.S.C. § 3553. See United States v. Irey, 612

F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.

I.

For three primary reasons, I conclude that the district court abused its

discretion in imposing an 87-month sentence on remand, after we previously

vacated Rosales-Bruno’s initial 87-month sentence. See id. at 1188–89; United

States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012). First, despite a

massive, 60-month, 68-percent decrease in the upper end of the advisory range

resulting from this court’s opinion vacating Rosales-Bruno’s initial sentence, the

sentence imposed at Rosales-Bruno’s resentencing did not decrease by a single

day. Under the circumstances, it is clear that the district court failed to consider

the Guidelines as required under 18 U.S.C. § 3553(a)(4). Second, the sentence

imposed—more than three times the upper end of the Guidelines range—is the

59 Case: 12-15089 Date Filed: 06/19/2015 Page: 60 of 90

product of a substantial upward variance in an entirely unremarkable case.

Sentencing so harshly in ordinary cases will inevitably create wide sentencing

disparities, contrary to congressional intent. See 18 U.S.C. § 3553(a)(6). Third,

Rosales-Bruno was convicted of illegally reentering the United States, where his

daughter lives and where he previously found gainful employment. In concluding

that this crime warranted a sentence of more than 7 years’ imprisonment, the

district court failed to appropriately consider the nature and circumstances of the

crime for which Rosales-Bruno was being sentenced as required under 18 U.S.C. §

3553(a)(1).

“In . . . cases such as Irey . . . , we vacated sentences on the ground that they

failed in effect to give ‘real weight’ to the Guidelines or to adequately reflect the

Guidelines’ policy statements and underlying concerns.” United States v. Early,

686 F.3d 1219, 1224 (11th Cir. 2012) (Martin, J., concurring in the judgment).

The same is true here. Adherence to Irey (vacating a sentence that was too low)

thus requires vacatur (of a sentence that is too high, like this one). 1

1 I do not need to reach whether the Majority opinion is correct in finding that this court’s review is limited to substantive reasonableness or whether Rosales-Bruno’s sentence also warrants vacatur for procedural error. To the extent procedural error may be narrowly characterized as whether the district court stated that it considered the factors and did not err in calculating the Guidelines, I agree that no such error occurred. If, however, procedural error includes giving insufficient weight to the Guidelines or our prior decision, then those issues, however labeled, are squarely before us. In his opening brief, Rosales-Bruno argues that none of the Guidelines factors account for the major variance imposed on remand and that “[t]he coincidence of the vacated sentence and the sentence imposed on remand” make it “quite clear that the district court intended to bypass

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A.

Sentencing is highly subjective, and without standardization, sentencing

based on the § 3553(a) factors is unpredictable and disparate. That is why the

Guidelines were created. See Irey, 612 F.3d at 1181. And, while the Guidelines

are no longer mandatory, see Booker v. United States, 543 U.S. 220, 226, 125 S.

Ct. 738, 746 (2005), they remain incredibly useful. As the Supreme Court put it,

“[t]he district courts . . . must consult th[e] Guidelines and take them into account

when sentencing.” Id. at 264, 125 S. Ct. at 767. Or, as we put it in Irey, “though

not bound by the [G]uidelines, a sentencing court may not give them so little

consideration that it amounts to not giving any real weight to the Guidelines range

in imposing the sentence.” 612 F.3d at 1217 (internal quotation marks omitted).

That is exactly what occurred here. Indeed, we will rarely be confronted with

circumstances that so clearly prove the district court’s failure to give the

Guidelines “real weight.”

this Court’s published opinion with or without sufficient justification.” For these reasons, Rosales-Bruno avers that his sentence was “unreasonable” and “unsupported by the record.” Thus, regardless of whether the grounds for vacating Rosales-Bruno’s sentence discussed here are labeled as “procedural” or “substantive,” the issues were not waived and are therefore before us. And, of course, the irregularities just quoted from Rosales-Bruno’s brief necessarily implicate substantive reasonableness concerns, even if some of the irregularities with his sentence could technically fall under the heading “procedural error.” Compare Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007) (“failing to consider the § 3553(a) factors” is procedural error), with Irey, 612 F.3d at 1189 (failing to consider relevant Guidelines factors, giving irrelevant factors significant weight, or committing a clear error of judgment in considering the factors is substantively unreasonable).

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Initially, the district court calculated a 70–87 month Guidelines range and,

concluding that an upward variance was not warranted, the district court sentenced

Rosales-Bruno at the top of that range. We vacated that sentence because the

district court mistakenly believed that Rosales-Bruno had been convicted of a

violent felony and applied a 16-level enhancement as a result of that error.

Rosales-Bruno, 676 F.3d at 1024.

At resentencing, without the erroneous violent-felony enhancement, the

Guidelines range decreased from 70–87 to 21–27 months, meaning that instead of

facing a sentence of 7.25 years, Rosales-Bruno faced a sentence under the correctly

calculated Guidelines of, at most, 2.25 years. However, despite this substantial

decrease in the applicable Guidelines range, Rosales-Bruno received the exact

same 87-month sentence as before. To re-impose the sentence we initially vacated,

the court had to radically depart from its initial determination that Rosales-Bruno

did not deserve an upward variance, this time concluding that he in fact deserved a

variance—and a major one, at that, as the 87-month sentence imposed required a

60-month upward variance, more than tripling the upper end of the Guidelines

range.

It is difficult to ignore the uncanny resemblance between the district court’s

initial sentence and the sentence imposed on remand, and I have little doubt that if

the Guidelines had been correctly calculated the first time around, Rosales-Bruno

62 Case: 12-15089 Date Filed: 06/19/2015 Page: 63 of 90

would have been sentenced to 27 months. Nothing in the record at Rosales-

Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as

the type of defendant who warranted an upward variance at all, let alone such a

significant one. And between Rosales-Bruno’s initial sentencing and his

resentencing, the only changes that occurred cut in favor of a lower sentence.

Under the Guidelines, Rosales-Bruno was no longer deemed a violent felon, and

his advisory range decreased by 60 months, or roughly 68 percent. Despite these

changes, Rosales-Bruno’s sentence did not decrease by a single day.

The conclusion to be drawn from a sentence that does not change based on

such a substantial decrease in the Guidelines range is that the Guidelines were

given no weight at all, requiring vacatur under Irey. See 612 F.3d at 1217.

Ordinarily, it is difficult to tell just how much (or, in this case, how little) weight is

given to any particular sentencing factor because the Guidelines are but one of

many factors that the court must take into account. Here, however, one of the

variables—the Guidelines range—is perfectly isolated, as nothing else changed

between Rosales-Bruno’s first sentencing and his second. The fact that such a

dramatic decrease in the Guidelines had no impact on the sentence imposed shows

clearly that the Guidelines were given no weight at all, which, aside from requiring

vacatur under Irey, is entirely incompatible with Congress’s command to consider

the Guidelines when imposing a sentence. See 18 U.S.C. § 3553(a)(4).

63 Case: 12-15089 Date Filed: 06/19/2015 Page: 64 of 90

Of course, the Majority opinion suggests that, from the very beginning, the

sentencing judge thought that 87 months was the correct sentence for Rosales-

Bruno; the district court came up with an 87-month sentence all on its own, based

on experience, common sense, and good judgment. But this sentence, 87 months’

imprisonment, did not come from the district court’s judgment or experience. It

came from the Sentencing Guidelines—or, more accurately, from a miscalculation

of the Guidelines. The Majority opinion rewrites history in suggesting that,

regardless of the Guidelines, the district court was always going to impose an 87-

month sentence, even if it had calculated the Guidelines correctly the first time

around.

Indeed, the Majority opinion even asserts that the best evidence of what the

district court would have done the first time around is what the court did the

second time around on remand. Not so. The best evidence of what the court

would have done the first time around is what the court did the first time around,

which was to sentence Rosales-Bruno to the upper end of the Guidelines range.

Again, the number 87 was not a product of the sentencing court’s judgment; it was

a product of the Guidelines. There is no persuasive explanation in the record as to

why a criminal defendant, whom the district court in fact decided to sentence

within the Guidelines in the first instance, suddenly became a defendant requiring a

triple-upward variance on remand.

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Further, concluding that a massive decrease in the Guidelines range should

have at least some influence on the sentence imposed is not the same as suggesting

that the Guidelines range should be mandatory in violation of Booker. I suggest

only what our binding precedent in Irey has already held: that Congress’s

command to respectfully consider the Guidelines includes giving “real weight” to

the Guidelines, and that by imposing the exact same sentence despite a 68-percent

decrease in the Guidelines, the district court clearly did not give the Guidelines the

“real weight” they deserve. See Irey, 612 F.3d at 1217–18.

This limited proposition stops far short of treating the Guidelines as

mandatory. There is an obvious difference between finding an abuse of discretion

here—where a district court that already found a within-Guidelines sentence to be

appropriate subsequently disregarded a massive decrease in the advisory range—

and making the Guidelines mandatory. 2 If the evidence before us is not enough to

establish that the district court failed to adequately weigh the Guidelines, then no

evidence ever would be, in which case Irey would have to be rewritten, and 18

U.S.C. § 3553(a)(4) might as well not exist.

2 And, as discussed in more detail in Part I.C., it is not the mere fact that the district court varied from the Guidelines on remand that draws my criticism; rather, it is “the degree” and “extent” of the variance with which I am properly concerned. See Gall, 552 U.S. at 47, 128 S. Ct. at 595.

65 Case: 12-15089 Date Filed: 06/19/2015 Page: 66 of 90

B.

The district court’s decision to sentence Rosales-Bruno to more than three

times the upper end of the advisory range even though he falls in the “heartland to

which the Commission intend[ed] [the 21–27 month] Guidelines [range] to apply”

is further evidence that the court abused its discretion. See Kimbrough v. United

States, 552 U.S. 85, 109, 128 S. Ct. 558, 574–75 (2007) (internal quotation marks

omitted). We have held that “‘closer review may be in order when the sentencing

judge varies from the Guidelines based solely on the judge’s view that the

Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-

run case.’” Irey, 612 F.3d at 1188 (quoting Kimbrough, 552 U.S. at 109, 128 S. Ct.

at 575). This is just such a case, as the primary basis for the variance was Rosales-

Bruno’s criminal history, which was already reflected in the applicable Guidelines

range. See, e.g., United States v. Lopez, 343 F. App’x 484, 486 (11th Cir. 2009)

(per curiam) (vacating an above-Guidelines sentence because the district court

abused its discretion “[b]y focusing only on [the defendant’s] criminal history,

without providing any other justification as to the need to deviate almost fifty

percent above the high end of the guideline range” (footnotes omitted)). As in

Lopez, the only basis in the record for the district court’s substantial upward

variance is a rote recitation of the criminal history portion of Rosales-Bruno’s

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presentence report. This information was already factored into the Guidelines

calculation.

Rosales-Bruno’s base offense level was 8. U.S.S.G. § 2L1.2(a). He then

received a 2-level reduction for acceptance of responsibility. Id. § 3E1.1(a). A

base offense level of 6 translates to a Guidelines range of 0–6 months in prison.

But that was not the offense level or Guidelines range applicable to Rosales-Bruno.

He had felony convictions to his name, so his offense level increased to 10, id. §

2L1.2(b)(1)(D), increasing the applicable Guidelines range from 0–6 to 6–12

months. In addition to being a felon, Rosales-Bruno was convicted of violating a

variety of traffic laws and driving while intoxicated on several occasions. These

prior convictions placed Rosales-Bruno in criminal history category V.

And the Guidelines account for all of this, as Rosales-Bruno’s recidivism is

the precise characteristic that landed him in category V. That categorization

increased the applicable Guidelines range again, this time from 6–12 months to

21–27 months. Thus, when creating the 21–27 month advisory range applicable in

this case, the Commission knew it was dealing with illegal reentrants just like

Rosales-Bruno, who have a prior felony conviction and at least 10 criminal history

points.

Accordingly, this Guidelines range already reflects the fact that Rosales-

Bruno is a repeat criminal who has done reprehensible things. After all, it is hard

67 Case: 12-15089 Date Filed: 06/19/2015 Page: 68 of 90

to imagine a category V defendant who is not a repeat criminal or a felon who has

not done reprehensible things. The Commission designed the Guidelines to punish

such defendants more harshly than others, by increasing offense levels from 6 to

10 and by increasing criminal history categories from I to V. In short, as a result of

repeatedly breaking the law and doing reprehensible things (at least once), illegal

reentrants like Rosales-Bruno face a Guidelines range of 21–27 months, rather than

0–6 months.

Nothing in the record suggests that Rosales-Bruno is any worse than other

convicted-felon, category V illegal reentrants, let alone so much worse that the

high end of his advisory sentencing range should be tripled. We have previously

vacated an above-Guidelines sentence for similar reasons. See United States v.

Valdes, 500 F.3d 1291, 1292 & n.2 (11th Cir. 2007) (per curiam) (vacating in part

because “[m]any of the bases for the district court’s sentence were already

accounted for in calculating the Guidelines range” (emphasis added)). 3 Why, then,

did the district court sentence Rosales-Bruno to more than triple the upper end of

3 In reaching our conclusion in Valdes, we relied on United States v. McVay, 447 F.3d 1348, 1357 (11th Cir. 2006), which was subsequently abrogated by the Supreme Court, see Gall, 552 U.S. at 46, 128 S. Ct. at 594. But when Valdes appealed the sentence imposed on remand, we had the opportunity to clarify that, even after Gall, a defendant’s “criminal history alone would not justify an upward departure as such behavior is accounted for through [the defendant’s] criminal history category.” United States v. Valdes, 298 F. App’x 927, 930 (11th Cir. 2008) (per curiam) (emphasis added).

68 Case: 12-15089 Date Filed: 06/19/2015 Page: 69 of 90

an advisory range that was specifically designed for convicted-felon illegal

reentrants with similar patterns of recidivism?

The Majority opinion attempts to answer this question by noting that

Rosales-Bruno is “an outstanding candidate for an upward variance from the

advisory guidelines range” primarily because he is a category V criminal, placing

him among the worst 13.1 percent of illegal reentrants. Maj. Op. at 32–38. But it

makes no sense to suggest that a person is “an outstanding candidate” for being

treated three times harsher than other category V criminals because he is a

category V criminal. Being a category V criminal does no more than make

Rosales-Bruno an outstanding candidate to be treated as a category V criminal,

which, in this case, means being sentenced to somewhere between 21 and 27

months’ imprisonment. See Valdes, 500 F.3d at 1292 n.2; Valdes, 298 F. App’x at

930 (indicating that a district court abuses its discretion by imposing an upward

variance based solely on prior convictions that are already incorporated into a

defendant’s criminal history category).

Quite simply, nothing in the record suggests that Rosales-Bruno falls outside

the “heartland” of convicted-felon, category V illegal reentrants. See Kimbrough,

552 U.S. at 109, 128 S. Ct. at 574–75. The Majority’s response—that Rosales-

Bruno falls outside the “heartland” of illegal reentrants because he is a category V

recidivist—misses the point entirely. When the Supreme Court referenced the

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“heartland” in Kimbrough, and when we referenced the “mine-run case” in Irey,

612 F.3d at 1188, the point was not to compare the defendant being sentenced to

all other defendants who committed the same underlying offense. The point was,

and is, that we must compare the defendant being sentenced to other defendants “to

which the Commission intend[ed] individual Guidelines to apply.” Kimbrough,

552 U.S. at 109, 128 S. Ct. at 574–75.

After all, the purpose of considering the “heartland” or the “mine-run” case

is “to avoid excessive sentencing disparities,” id. at 107, 128 S. Ct. at 574 (internal

quotation marks omitted), “among defendants with similar records who have been

found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6) (emphasis added). That

purpose is not served by comparing Rosales-Bruno to other generic illegal

reentrants, most of whom fall in lower criminal history categories and thus face

lower Guidelines ranges. Congress clearly wants sentencing disparities between

category I illegal reentrants with no prior felonies, on the one hand, and convicted-

felon, category V illegal reentrants, on the other, because these two types of illegal

reentrants do not have “similar records,” and thus, a sentencing disparity between

the two is entirely warranted. See id.

So, again, the fact that Rosales-Bruno has a worse criminal record than most

other illegal reentrants does not place him outside the relevant “heartland.” Of

course he has a worse criminal record. That is why the Guidelines place him in

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criminal history category V and increase his advisory range accordingly. But in

considering whether Rosales-Bruno falls outside the “heartland” for purposes of

justifying an upward variance from the sentencing range applicable to category V

illegal reentrants, we must compare Rosales-Bruno to defendants who have similar

records and thus are treated similarly under the Guidelines.

Properly understood, then, the question of whether Rosales-Bruno falls

“outside the heartland to which the Commission intend[ed] individual Guidelines

to apply,” Kimbrough, 552 U.S. at 109, 128 S. Ct. at 575 (internal quotation marks

omitted), can only be answered by comparing Rosales-Bruno to the average

category V illegal reentrant with a felony conviction. 4 In other words, it is only by

comparing Rosales-Bruno to people “with similar records who have been found

guilty of similar conduct” that we can avoid unwarranted sentencing disparities.

18 U.S.C. § 3553(a)(6) (emphasis added). And the record here does not show that

“there was something unusual, either about [Rosales-Bruno] or the circumstances

4 The Majority insists that I place an unreasonable burden on district courts by expecting them to know the characteristics of the “average” category V illegal reentrant with a base offense level of 10. The burden I would place on sentencing courts is no different than—and, indeed, is essential to carrying out—the burden placed on sentencing courts by Congress, which directs them to consider the need to avoid unwarranted sentencing disparities between defendants with similar records. See 18 U.S.C. § 3553(a)(6). It would be impossible to avoid unwarranted disparities between defendants with similar records—such as, for example, defendants in the same criminal history category—without having some idea what the typical, “heartland,” “mine- run” category V criminal was like. By insisting that district courts consider the “average” defendant with a particular offense level and criminal history category, I insist only that district courts use their common sense and experience to ensure that defendants with similar records who commit similar crimes are sentenced similarly. This calls on district court judges to use good judgment, not to conduct a statistical analysis.

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surrounding [his illegal reentry], that warranted a different sentence” than the one

advised by the Guidelines for other convicted-felon, category V illegal reentrants.

See Irey, 612 F.3d at 1182.

Indeed, while I do not mean in any way to condone Rosales-Bruno’s lengthy

criminal history, I suspect that the criminal history of most convicted-felon,

category V criminals is as bad or worse. The district court insisted, as does the

Majority opinion, that Rosales-Bruno lacked proper respect for the law, needed to

be deterred, and presented a risk of harm to the public. See 18 U.S.C. §

3553(a)(2)(A)–(C). All of that is true, but all of that is equally true of other

convicted-felon, category V illegal reentrants. These concerns explain why the

Commission increased Rosales-Bruno’s advisory range from 0–6 months to 21–27

months, just as it did for all other convicted-felon, category V illegal reentrants.

But these concerns do nothing to explain why the district court then more than

tripled the upper end of that range—a range the Commission designed for people

just like Rosales-Bruno.

In short, Rosales-Bruno is a “mine-run” convicted-felon, category V illegal

reentrant, and it is clear that “the sentencing judge varie[d] from the Guidelines

based solely on the judge’s view that the Guidelines range fail[ed] properly to

reflect § 3553(a) considerations.” Irey, 612 F.3d at 1188 (quoting Kimbrough, 552

U.S. at 109, 128 S. Ct. at 575). Allowing district courts to triple the upper end of

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the Guidelines range in ordinary cases will lead inevitably to unwarranted

sentencing disparities in direct contravention of Congress’s purpose in passing 18

U.S.C. § 3553(a)(6). In “cases such as Irey and Pugh, we vacated sentences on the

ground that they failed . . . to adequately reflect the Guidelines’ policy statements

and underlying concerns.” Early, 686 F.3d at 1224 (Martin, J., concurring in the

judgment) (citing United States v. Pugh, 515 F.3d 1179, 1199–1201 (11th Cir.

2008)). Adherence to this authority requires vacatur here. And concluding that the

district court abused its discretion by acting in a way that would lead to wide

sentencing disparities in ordinary cases is not at all inconsistent with Booker’s

prohibition on treating the Guidelines as mandatory. After all, Booker did not

prohibit us from vacating Pugh’s sentence based on the district court’s failure to

“adequately reflect . . . the sentencing range established by the Guidelines.” Pugh,

515 F.3d at 1200 (internal quotation marks omitted). District courts clearly enjoy a

wide range of sentencing discretion after our decisions in Irey and Pugh, and they

would continue to do so were we to follow the precedent set by those cases, which

requires us to vacate Rosales-Bruno’s sentence.

C.

Rosales-Bruno’s sentence appears all the more unreasonable in light of the

“degree of variance . . . and . . . the extent of [the] deviation[] from the

Guidelines,” which we are free to consider. Gall, 552 U.S. at 47, 128 S. Ct. at 595

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(emphasis added). The 60-month upward variance Rosales-Bruno received,

resulting in a sentence more than three times the upper end of the Guidelines range,

“[w]hether considered in absolute or percentage terms, . . . is a ‘major’ variance in

the legal parlance of sentencing law.” Irey, 612 F.3d at 1196. Instead of spending

roughly two years in prison, as will most convicted illegal reentrants with similar

criminal records, Rosales-Bruno will spend the better part of a decade behind bars.

The Supreme Court has made clear that, when variances are imposed, the

district court’s justification must be “sufficiently compelling to support the degree

of the variance,” with “a major departure” requiring “a more significant

justification than a minor one.” Gall, 552 U.S. at 50, 128 S. Ct. at 597. While the

Supreme Court has precluded formulaic proportionality requirements or a rule that

permits variances only under extraordinary circumstances, it remains our duty to

“see that the justification [for a variance] is sufficiently compelling” to “support

the degree of the variance.” Irey, 612 F.3d at 1187 (internal quotation marks

omitted). 5 But the “justifications” supporting the variance imposed here amount to

no more than a recitation of characteristics that are common to most convicted-

felon, category V illegal reentrants. These justifications are “[in]sufficiently

compelling to support the degree of the variance.” Id. (internal quotation marks

5 Irey candidly recognizes the internal tension in the rule that the reason for a variance must be sufficiently compelling to support the degree of the variance but that a proportionality requirement is prohibited. See 612 F.3d at 1186–87 & n.14.

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omitted). Indeed, if these justifications were sufficient, then virtually any category

V defendant—who by definition would have a long criminal record that is sure to

contain sordid details casting the defendant in a highly unflattering light—could be

sentenced to three times the upper end of the advisory range, undermining the

Guidelines’ primary purpose of preventing unwarranted sentencing disparities.

In reaching this conclusion, I am not seeking to require an unprecedented

degree of explicit comparison between offenders before a district court may

sentence a defendant. All I would require is that the sentencing judge give a

credible justification for a major variance from the Guidelines beyond factors that

are typical of defendants subject to the same advisory range. This is precisely what

is required by the Supreme Court and by Chief Judge Carnes’s opinion for this

court in Irey, where we said Irey’s sentence was too low. See 612 F.3d at 1196

(“[T]he requirement is that the justification be ‘sufficiently compelling to support

the degree of the variance.’” (quoting Gall, 552 U.S. at 50, 128 S. Ct. at 597)).

The degree of a variance is a factor that is independently significant and that here

weighs heavily in favor of reversal; the Supreme Court has reiterated that our

review for substantive reasonableness requires us to “take into account the totality

of the circumstances, including the extent of any variance from the Guidelines

range,” Gall, 552 U.S. at 51, 128 S. Ct. at 597, as “the extent of the difference

between a particular sentence and the recommended Guidelines range is surely

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relevant,” id. at 41, 128 S. Ct. at 591. Because the district court imposed a major

variance in a “mine-run” case, in the absence of sufficiently compelling

justifications for any variance, let alone such a major one, I would vacate Rosales-

Bruno’s unreasonably harsh sentence. See Irey, 612 F.3d at 1186–87.

D.

Section 3553(a)(2)(A) requires that a sentence “reflect the seriousness of the

offense . . . and provide just punishment for the offense.” 18 U.S.C. §

3553(a)(2)(A) (emphasis added). The district court’s consideration of this factor

was clearly unreasonable. It is critical here to recall that Rosales-Bruno is not

being sentenced for abusing his girlfriend or for driving drunk. He has already

been punished for those crimes, and his punishment under the Guidelines for the

instant crime has already been increased substantially as a result of those past

offenses.

He is being sentenced for illegal reentry under 8 U.S.C. § 1326, 6 which is a

relatively low-level offense.7 Further, it is undisputed that Rosales-Bruno’s

6 Rosales-Bruno was convicted of illegal reentry in violation of 8 U.S.C. § 1326(a). Subsections (b)(1)–(2), which provide for enhancements based on prior convictions, are sentencing enhancements, not different crimes. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 226–27, 230, 118 S. Ct. 1219, 1222, 1224 (1998) (describing § 1326(b) as “a penalty provision” that “does not define a separate crime”). 7 The Majority accurately observes that illegal reentry under 8 U.S.C. § 1326 is subject to a two-year maximum sentence, but that, pursuant to § 1326(b)(1), the statutory maximum increases to ten years for illegal reentrants like Rosales-Bruno who were deported following a felony conviction. Again, however, the Guidelines account for Rosales-Bruno’s prior felony conviction, as evidenced by the fact that the upper end of his advisory range, 27 months,

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commission of the offense was routine and unremarkable. For category I

offenders, the crime carries the lowest range the Guidelines have to offer: 0–6

months. It is thus striking that the district court mentioned the nature and

circumstances of the instant offense as a factor making an 87-month sentence

appropriate. In contrast, the Commission believes that the essential nature and

circumstances of the illegal-reentry offense, by themselves, make at most a 6-

month sentence appropriate,8 suggesting that an 87-month sentence is wildly

inappropriate. The district court offered no basis for disagreeing with this

assessment. This factor clearly cuts—and cuts hard—against the reasonableness of

the district court’s decision.

Indeed, consideration of the circumstances surrounding Rosales-Bruno’s

illegal reentry into the United States makes a 60-month upward variance seem

outrageous. Rosales-Bruno has a daughter in the United States, and he apparently

reentered the United States to resume gainful employment in the citrus processing

exceeded the statutory maximum for a simple violation of § 1326 without a sentencing upgrade under § 1326(b)(1). So, it is perfectly clear that the applicable Guidelines range was already adjusted to reflect the increased seriousness of Rosales-Bruno’s offense. And it is well worth noting that Rosales-Bruno’s illegal reentry fell into the statutory mid-range of seriousness, not at the upper end of the spectrum as one might expect in a case where the district court imposed such a massive upward variance. Compare 8 U.S.C. § 1326(b)(1) (punishing illegal reentry following deportation for a felony to a maximum of 10 years’ imprisonment), with § 1326(b)(2) (punishing illegal reentry following deportation for an aggravated felony to a maximum of 20 years’ imprisonment). 8 Adjusting only for his prior felony conviction, Rosales-Bruno’s offense level was 8, which carries advisory ranges beginning at 0–6 months, depending on criminal history category.

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industry. Of course, it is illegal for Rosales-Bruno to be in the same country as his

child and to continue working here as he had before he was deported, but spending

more than 2 years in prison for this crime certainly seems like punishment enough.

And spending more than 7 years in prison for this offense is plainly too much. See

18 U.S.C. § 3553(a)(2)(A).

***

On balance, the § 3553(a) factors clearly do not support an above Guidelines

sentence in this case, and varying so significantly above the Guidelines based on

facts about Rosales-Bruno’s history that are common to most people in the

applicable Guidelines range was clearly even more unreasonable. See, e.g., Gall,

552 U.S. at 51, 128 S. Ct. at 597 (requiring reviewing courts to consider “the

totality of the circumstances, including the extent of any variance from the

Guidelines range”). Rosales-Bruno is far from an outlier among convicted-felon,

category V illegal reentrants. If anything, by virtue of his gainful employment and

decreasing pattern of criminality, he appears to be among the less dangerous, less

depraved, and more productive portion of his criminal history category. 9 Yet he

was sentenced as if he were much, much, much worse. If a district court does not

9 I do not mean to suggest that Rosales-Bruno deserved a downward variance, but there are more facts in the record to support a downward variance than to support trebling the Guidelines. That is because, unlike the aggravating circumstances counting against Rosales- Bruno (his criminal history), the mitigating circumstances (his seeming desire to be in the same country as his daughter and source of employment as well as his decreasing pattern of criminal behavior) are not necessarily factored into the Guidelines range.

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abuse its discretion by tripling the upper end of a Guidelines range in a “mine-run”

case where the Guidelines already incorporate and account for the defendant’s

worst characteristics, it is difficult to imagine any circumstances under which we

would find an abuse of discretion because a sentence is too harsh. Unlike the

Majority, I am left with the definite and firm conviction that the district court

committed a clear error of judgment, and I would vacate Rosales-Bruno’s sentence

and remand for resentencing within the Guidelines.

II.

We have never vacated a sentence because it was too high, imposing a

sentencing ceiling on remand. By contrast, on numerous occasions, we have

vacated sentences because they were too low and imposed a sentencing floor. See,

e.g., Irey, 612 F.3d at 1224–25 & n.46 (concluding that no sentence less than 30

years would suffice); Pugh, 515 F.3d at 1204 (holding that a sentence of probation

without imprisonment or supervised release was—and would be—unreasonable);

see also United States v. Livesay, 587 F.3d 1274, 1279 (11th Cir. 2009) (“Not only

do we hold that the particular sentence imposed below is unreasonable, but we also

hold that any sentence of probation would be unreasonable . . . .”); United States v.

McVay, 294 F. App’x 488, 490 (11th Cir. 2008) (per curiam) (prohibiting the

district court from imposing a sentence without prison time). This forces me to

believe that we are grading harshness and lenience on different scales. By failing

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to adhere to Irey and Pugh in this upward variance case, the Majority opinion

reinforces this unstated double standard. It is true that we say all sentences are

meaningfully reviewed for reasonableness, but in practice, it seems that only

lenient sentences are subject to vacatur on purely substantive grounds. The

message that we are sending to the district courts by this precedent is that they

enjoy virtually unfettered sentencing discretion, so long as they sentence harshly.

In other words, while we say otherwise, we are in reality reading a “severity

principle” into sentencing that should not be there. See Irey, 612 F.3d at 1196–97

(explaining that § 3553(a) supports neither a “parsimony principle” nor a “severity

principle”).

A.

Our case law has been so one-sided that we have convinced at least one

member of this court, Judge Martin, that we do not actually place an upper limit on

sentencing discretion, despite our pretensions to the contrary. That is, she believes

that we have been so obvious in applying our unwritten “severity principle” that it

is now the law of our circuit.10 In Early, Judge Martin stated that our precedent

“teaches deference to . . . any variance above the Guideline range, no matter how

10 Judge Barkett (now retired) identified the same problem even before Irey was decided. In United States v. Docampo, she explained that “we essentially pose two separate questions: (1) Is the sentence enough punishment? and (2) Is the sentence too much punishment? Appellate courts have had no difficulty finding unreasonableness when asking the former. . . . Our appellate sentencing review should not develop into a one-way ratchet upwards.” 573 F.3d 1091, 1110 (11th Cir. 2009) (Barkett, J., concurring, in part, and dissenting, in part).

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large,” so long as it is under the statutory maximum, of course. 11 686 F.3d at 1223

(Martin, J., concurring in the judgment). The Majority teaches the same lesson.

Judge Martin then articulated the two different standards of review that she

sees being applied depending on whether a sentence is harsh or lenient:

My reading of these cases tells me that in considering sentences above the Guideline range, we look only to whether the sentencing court seemed to consider the § 3553(a) factors and we ignore whether the court might have disregarded one of the factors or weighed the factors in an unreasonable way. In contrast, for downward variances, we show no such deference and instead scrutinize how a sentencing court applied each and every § 3553(a) factor. We even go so far as to decide for ourselves whether the factors were weighed correctly. . . . In downward variance cases such as Irey . . . , we vacated sentences on the ground that they failed in effect to give real weight to the Guidelines or to adequately reflect the Guidelines’ policy statements and underlying concerns. . . . . . . In sum, even though our case law purportedly requires a significant justification to support a major departure from the Guidelines, the panel’s review of Mr. Early’s 116 percent upward variance evinces little indication that such a requirement even applies here.

Id. at 1223–25 (citations and internal quotation marks omitted). Unmistakably,

that requirement does apply here. 12 I agree with Judge Martin’s summary of our

11 In a sign that others have noticed the dichotomy Judge Martin described in our case law, her concern is echoed in scholarly commentary. See Adam Shajnfeld, The Eleventh Circuit’s Selective Assault on Sentencing Discretion, 65 U. Miami L. Rev. 1133, 1133 (2011) (claiming that we “unfairly wield[] a single-edged sword, capable of striking what is perceived as an unduly lenient sentence yet impotent against an unduly harsh one”); see also Daniel N. Marx, Unwarranted Disparity in Appellate Review of Non-Guidelines Sentences for Substantive Reasonableness, 29 Westlaw J. White-Collar Crime 1, 6–7 (2014) (describing the disparity in appellate review of sentences, including Judge Martin’s commentary on the Eleventh Circuit’s approach).

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standard of review as applied to lenient sentences but disagree with her to the

extent that she suggests any other standard applies to harsh sentences. Thus, I

believe that in upward variance cases such as this, just as in downward variance

cases such as Irey, “we vacate[] sentences [when] they fail[] in effect to give ‘real

weight’ to the Guidelines or to adequately reflect the Guidelines’ policy statements

and underlying concerns.” Id. at 1224. As discussed above, the district court here

failed to give “real weight” to the Guidelines and imposed a sentence that does not

reflect the Guidelines’ purpose of eliminating sentencing disparities between

similarly-situated defendants. Because the principles that led us to vacate Irey’s

sentence compel vacatur of Rosales-Bruno’s sentence, and because those

principles apply in upward variances cases just as much as they do in downward

variance cases, I cannot find that the sentence imposed here was reasonable.

B.

The Majority opinion disputes that we have adopted a severity principle in

our review of sentencing decisions, citing three cases which, in the Majority’s

view, prove that we have vacated overly-harsh sentences as substantively

unreasonable. These cases indicate, however, that the sentences were not actually

vacated because they were too long.

12 I reiterate that my position would not deprive sentencing courts of the substantial discretion they enjoy post-Booker. I agree with our decision in Early to affirm the sentence imposed even though it was more than two times the upper end of the Guidelines range.

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In the only published case, Valdes (a three paragraph, per curiam opinion),

the defendant was sentenced to 108 months’ imprisonment, far above the upper

end of the advisory range. 500 F.3d at 1292. On appeal, we held that “the reasons

discussed were inadequate to support an extraordinary variance.” Id. This opinion

does not, however, prove that we have indeed vacated a sentence because it was

too long. Instead of holding, as we did in Irey, that “no sentence less than [the

advisory sentence] is sufficient,” 612 F.3d at 1225, in Valdes, we held that “the

reasons discussed were inadequate,” 500 F.3d at 1292. As we recognized in Irey,

“the adequacy of a district court’s . . . sentence explanation is a classic procedural

issue, not a substantive one.” Irey, 612 F.3d at 1194 (emphasis added). Thus,

Valdes based vacatur at least in part on procedural, not substantive grounds. 13

The distinction is critical because Valdes, unlike Irey, left open the

possibility that the district court could impose the same sentence on remand if a

more thorough explanation were offered. Again, in Irey, it did not matter what

13 The Majority opinion suggests that there is an important distinction to consider between substantive and procedural reversals; that the remand in Valdes based on “the reasons discussed” is a substantive ground, whereas remand based on “the discussion of the reasons” would have rendered it procedural. My point is not to quibble over labels. Instead, my point is that remanding because “the reasons discussed were inadequate” leaves open the possibility that there were other reasons that were not discussed that could be adequate to support the sentence imposed. See Valdes, 500 F.3d at 1292. In other words, on remand, the district court was free to impose the same sentence, provided that additional reasons were discussed or developed in the record. And it is worth noting that, although the district court did not impose the exact same sentence on remand, it again varied significantly above the Guidelines, and we affirmed. See Valdes, 298 F. App’x at 930–31 (affirming an 84-month sentence, 33 months above the upper end of the Guidelines range). Thus, I reiterate: we have not expressly vacated a sentence because it was too long or too harsh, but we have done so because a sentence was too short.

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reasons the district court gave for its downward variance or whether it gave those

reasons (as indeed it did); no sentence explanation could render any downward

variance substantively reasonable in that case, and we instructed the district court

to sentence Irey within the advisory range. See Irey, 612 F.3d at 1224–25 & n.46

(requiring the district court to impose a sentence of 30 years on remand).

Nor does our unpublished opinion in Lopez, 343 F. App’x 484, signal the

same warning against harsh sentencing as cases such as Irey signaled against

lenient sentencing. In vacating Lopez’s sentence, we explained that “the judge’s

ability to [deviate above the guideline range despite the conviction’s role in

helping to dictate that range] does not then give free rein to impose any sentence

above without first adequately justifying that decision.” Id. at 486 n.1 (emphasis

added). As with Valdes, then, our decision in Lopez, which rested on “the

adequacy of a district court’s . . . explanation,” was, at least in significant part, “a

classic procedural [decision], not a substantive one.” Irey, 612 F.3d at 1194; see

also Gall, 552 U.S. at 51, 128 S. Ct. at 597 (“failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines

range” is procedural error).

Further, regardless of whether the Majority opinion is correct that Lopez

represents vacatur on substantive grounds alone, that decision, which was

unpublished, did very little to eliminate any unwritten severity principle in our law.

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And if Lopez applied the standard in this circuit for vacating harsh sentences, then

it strongly supports reversal here. After all, in Lopez, we held that the district court

abused its discretion “[b]y focusing only on Lopez’s criminal history, without

providing any other justification as to the need to” vary above the Guidelines. 343

F. App’x at 486. That is precisely what happened in this case. Accordingly, if

Lopez means what the Majority opinion claims, then Rosales-Bruno’s sentence is

also substantively unreasonable.

Thus, Valdes and Lopez only strengthen my contention that Rosales-Bruno’s

sentence should be vacated. In those cases, as here, the district court varied above

the Guidelines based on factors that were already incorporated into the Guidelines

without providing any other justification for varying upward so substantially. See

Valdes, 298 F. App’x at 930 (reaffirming our initial holding in Valdes that the

defendant’s “criminal history alone would not justify an upward departure as such

behavior is accounted for through his criminal history category”); Lopez, 343 F.

App’x at 486 (vacating the defendant’s sentence because the court “focus[ed] only

on [the defendant’s] criminal history”). If Valdes and Lopez are distinguishable

from this case, it is only because the variance here is more severe, and thus less

justifiable and less reasonable, than the variances in those cases.

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There is another reason that Valdes and the third case the Majority opinion

cites, our unpublished opinion in United States v. Gardner, 255 F. App’x 475 (11th

Cir. 2007) (per curiam), do not alleviate my concern that we are developing a

severity principle in sentencing. In Valdes, we vacated the sentence because “the

reasons discussed were inadequate to support an extraordinary variance.” 500

F.3d at 1292 (emphasis added). Similarly, in Gardner, we vacated the above-

Guidelines sentence because “[t]he extraordinary upward variance . . . was not

supported by extraordinary circumstances.” See 255 F. App’x at 476–77.

The rule underlying those decisions is no longer good law. Valdes and

Gardner cited McVay, 447 F.3d 1348, for the proposition that “a district court’s

imposition of a sentence that falls far outside the Guidelines range must be

supported by extraordinary circumstances.” Valdes, 500 F.3d at 1292 n.2

(emphasis added); see Gardner, 255 F. App’x at 476 (citing McVay for the same

proposition). But McVay’s “extraordinary circumstances” requirement, upon

which our holdings in both Valdes and Gardner were based, was explicitly

abrogated by the Supreme Court in Gall, 552 U.S. at 47, 128 S. Ct. at 595 (“We

reject . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a

sentence outside the Guidelines range.”). Thus, neither Valdes nor Gardner proves

that we have vacated a sentence because it was too long. They prove only that we

have vacated a sentence when the district court failed to adequately justify a

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variance with “extraordinary circumstances,” which district courts are no longer

required to do.

Consequently, to the extent the cases cited by the Majority opinion do

reverse at least in part on substantive grounds, those same grounds plainly support

reversal in this case. And my point remains: we have never expressly vacated a

sentence as substantively unreasonable because it was simply too long and

imposed a sentencing ceiling on remand. By contrast, we have not hesitated to

vacate a sentence as substantively unreasonable because it was simply too short,

and in many of those cases, we imposed a sentencing floor on remand. See, e.g.,

Irey, 612 F.3d at 1224–25 & n.46; Pugh, 515 F.3d at 1204; Livesay, 587 F.3d at

1279; McVay, 294 F. App’x at 490; see also Maj. Op. at App. B.

C.

If we do not vacate unreasonably long sentences like the one imposed here,

district courts can assume that upward variances from the Guidelines are

essentially per se reasonable and will not be reversed. At the same time, Irey

proves that the same is not true of downward variances. Thus, while we are bound

to apply the same abuse of discretion standard when reviewing the substantive

reasonableness of all sentences, we have given the impression that we are more

likely to vacate a lenient sentence than a harsh one, “even where the extent of the

variance from the Guideline range was far smaller and where the reasons given by

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the sentencing court were more substantial.” Early, 686 F.3d at 1223 (Martin, J.,

concurring in the judgment). That is not the law of this circuit. Irey articulated

meaningful lower and upper limits on a court’s sentencing discretion, and that is

why I joined Chief Judge Carnes’s majority opinion in Irey (even though then-

Chief Judge Edmondson and Judges Tjoflat, Birch, Barkett, and Martin did not).

But it is becoming difficult to believe that those upper limits are actually as

meaningful as we said.

The statistics cited by the Majority opinion, which show that district courts

vary downward more frequently than they vary upward, do nothing to suggest that

district courts have failed to pick up on the implicit message we have sent. 14 Just

because district courts can vary above the Guidelines with virtually no scrutiny

does not mean that district courts will vary above the Guidelines with regularity.

And it should come as no surprise that district courts encounter more defendants

who deserve lenience (in relation to the Guidelines) than harshness. The

Guidelines do a much better job of incorporating defendants’ aggravating

14 Chief Judge Carnes looks to Mark Twain for wisdom—but I recall that Mr. Twain also once proclaimed, “There are three kinds of lies: lies, damned lies, and statistics.” See Mark Twain, Chapters from My Autobiography—XX, 186 N. Am. Rev. 465, 471 (1907) (attributing the expression to Benjamin Disraeli). The point being that accurate data can be manipulated to make invalid points. Accordingly, I have no reason to question the accuracy of the sentencing data relied on by the Majority opinion. Instead, I dispute that a recitation of district court sentencing statistics proves what the Majority claims about how our precedent affects district court decisions. Contrary to Chief Judge Carnes’s implications, statistics about what the district courts do in sentencing does absolutely nothing to counter my concern that, on appellate review, we are applying different principles depending on the sentence before us.

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characteristics (such as the type, nature, and number of their prior offenses) than

they do of capturing the myriad mitigating characteristics about defendants that

may justify lenience in a particular case. Thus, the Majority opinion’s emphasis on

how district courts sentence does nothing to counter the point that this court

appears to apply a severity principle when reviewing harsh sentences on appeal.

Ultimately, I agree to a certain extent with Judge Martin, Judge Barkett, and

other commentators who point out that we appear to be applying different

standards of review depending on whether a sentence is challenged as too long or

too short. I disagree, however, that these different standards of review have

become, through misapplication, the law of this circuit. Irey articulates the only

standard we use to review sentences for substantive reasonableness, and that

standard applies regardless of whether a sentence imposed by the district court is

challenged as too lenient or too harsh. Applying that standard here requires

vacatur of Rosales-Bruno’s unreasonably harsh, far above-Guidelines sentence.

III.

The district court improperly calculated Rosales-Bruno’s sentence as 87

months—a within-Guidelines sentence based on an erroneous calculation of the

Guidelines. On remand, the court imposed the same sentence—a triple-upward

variance. Having examined the record, the factors, and the district court’s reasons

for imposing this sentence, I am convinced that this major variance was not

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supported by a significantly compelling justification, nor were the Guidelines

given any weight or consideration. Thus, I would vacate Rosales-Bruno’s sentence

and remand for resentencing. Moreover, failure to do so here reinforces the

perception that there is a double standard of review in the Eleventh Circuit—giving

greater deference to sentences above the recommended Guidelines range than

those below.

We recognized in Irey that “there is a difference between deference and

abdication. If there were no difference, if we did not have a meaningful role to

play, we would never have set aside any sentences as substantively unreasonable,

but we have.” Irey, 612 F.3d at 1194 n.20 (citation and internal quotation marks

omitted). We have not, however, expressly set aside a sentence because it was too

harsh. Refusing to vacate Rosales-Bruno’s sentence in these circumstances all but

eliminates the already weakened distinction between abdication and deference

when we review harsh sentences. Because I believe we meant what we said in

Irey—namely, that we have a meaningful role to play in reviewing sentences for

substantive reasonableness—and because the only way to affirm Rosales-Bruno’s

sentence is to abdicate, I respectfully dissent.