[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.

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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, RosalesBruno 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 RosalesBruno 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 RosalesBruno “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 RosalesBruno’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 RosalesBruno’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-guidelinesrange 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 RosalesBruno’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 

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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). 

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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 RosalesBruno. 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).

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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.

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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 

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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.

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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 

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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

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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 

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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/quickfacts/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.

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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 RosalesBruno’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. 

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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. 

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

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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 

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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 

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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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41

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-theguidelines 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-amessage 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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46

 

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 belowguidelines 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 aboveguidelines 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 bankfraud 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.”

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APPENDIX A1

Upward Variance Sentences Vacated as Unreasonable Downward Variance Sentences Vacated as Unreasonable

Fiscal 

Year

Number of 

Defendants 

Sentenced

Number 

of 

Upward 

Variances

Number of Upward 

Variance Sentences 

Vacated as 

Unreasonable2

Fiscal 

Year

Number of 

Defendants 

Sentenced

Number of 

Downward 

Variances

Number of 

Downward Variance 

Sentences Vacated as 

Unreasonable2

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. 

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APPENDIX B

Downward Variance Sentences Vacated as Substantively Unreasonable

Criminal Conduct Guidelines Range Sentence Vacated as 

Unreasonable

United States v. Hayes, 

762 F.3d 1300 

(11th Cir. 2014)

Business owner masterminded a public corruption 

scheme — including over $600,000 in bribes to 

state official in charge of higher education, as well 

as a money laundering conspiracy — that yielded 

more than $5 million in ill-gotten profits.

135–168 months in 

prison

Probation with no term of 

imprisonment

United States v. Hooper, 

566 F. App’x 771 

(11th Cir. 2014)

Officer punched a much smaller, handcuffed, 

unresisting arrestee multiple times in the face 

before locking him in a hot car.

70–87 months in 

prison

Probation with no term of 

imprisonment

United States v. 

McQueen,

727 F.3d 1144 

(11th Cir. 2013)

Corrections officers head-slammed, knucklerapped, and beat with a broken broomstick 

underage inmates, provoking one inmate to fight 

back, and then “fiercely choked” him while he 

begged for mercy; officers continued to beat the 

breathless inmate until he was “curled into a 

defensive ball,” lured him to his feet only to punch 

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. 

Defendant #1: 

15–21 months in 

prison

Defendant #2:

151–188 months in 

prison

Defendant #1:

1 month in prison

Defendant #2:

12 months in prison

United States v. Kuhlman,

711 F.3d 1321 

(11th Cir. 2013)

Doctor bilked insurance providers of nearly $3 

million in payments over five years for services he 

knew were not rendered to his patients. He 

admitted that was motivated by greed, not need.

57–71 months in 

prison

Probation with no term of 

imprisonment

United States v. Jayyousi,

657 F.3d 1085 

(11th Cir. 2011)

From 1993 to 2001, defendants provided money, 

recruits, and equipment to radical and violent 

Islamist terrorist organizations, including alQaeda. Defendants were also convicted of 

conspiracy to murder, kidnap, or maim persons 

overseas. 

360 months to life in 

prison

208 months in prison

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55

Criminal Conduct Guidelines Range Sentence Vacated as 

Unreasonable

United States v. Irey, 

612 F.3d 1160 

(11th Cir. 2010) 

Remorseless defendant raped, sodomized, tortured, 

and humiliated over fifty impoverished 

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. 

360 months in prison 210 months in prison

United States v. Livesay,

3

587 F.3d 1274 

(11th Cir. 2009)

Senior accounting manager knowingly played a 

critical role in a massive nine-year securities and 

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.

78–97 months in 

prison

Probation with no term of 

imprisonment

United States v. Hendrick,

324 F. App’x 867 

(11th Cir. 2009)

Defendant was guilty of conspiracy, obstruction of 

justice, and witness tampering.

Unspecified Probation with no term of 

imprisonment

United States v. Pugh, 

515 F.3d 1179 

(11th Cir. 2008)

Over a period of several years, defendant 

knowingly downloaded and distributed to other 

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 threeyear-old who had a dog collar around her neck. 

There were ten known child victims in the images 

found on defendant’s computer.

97–120 months in 

prison

Probation with no term of 

imprisonment

 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%.

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56

Criminal Conduct Guidelines Range Sentence Vacated as 

Unreasonable

United States v. McVay,

3

294 F. App’x 488 

(11th Cir. 2008)

Treasurer of company knowingly participated in a 

massive nine-year securities and 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.

87–108 months in 

prison

Probation with no term of 

imprisonment

United States v. Martin,

3

455 F.3d 1227 

(11th Cir. 2006)

CFO knowingly participated in a massive nineyear securities and 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.

108–135 months in 

prison

7 days in detention

United States v. Crisp, 

454 F.3d 1285 

(11th Cir. 2006)

Comptroller of construction company knowingly 

prepared false financial statements that defrauded 

a bank out of nearly $500,000. 

24–30 months in 

prison

Probation and 5 hours in 

custody of U.S. Marshal

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57

APPENDIX C

0.00%

5.00%

10.00%

15.00%

20.00%

25.00%

2006 2007 2008 2009 2010 2011 2012 2013 2014

Downward Variance Rate

Upward Variance Rate

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58

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 nowdiscredited 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 

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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 

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would have been sentenced to 27 months. Nothing in the record at RosalesBruno’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). 

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Of course, the Majority opinion suggests that, from the very beginning, the 

sentencing judge thought that 87 months was the correct sentence for RosalesBruno; 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. 

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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 minerun 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 RosalesBruno’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 RosalesBruno is a repeat criminal who has done reprehensible things. After all, it is hard 

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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). 

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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 RosalesBruno 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 convictedfelon, 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,” “minerun” 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 convictedfelon, 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 RosalesBruno’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 RosalesBruno (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 aboveGuidelines 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 thenChief 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.

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