[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-13678

________________________

D.C. Docket No. 7:07-cr-00507-VEH-TMP-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant,

 versus

JAMES WINSTON HAYES, 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

 (August 12, 2014)

Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

JORDAN, Circuit Judge: 

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the 

most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE 

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HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 

805 (David Womersley ed., Penguin Classics 1995) [1781]. And so, although 

unfortunate, it is perhaps not surprising that, even today, people continue to pay 

bribes to government officials with the expectation that they will make decisions 

based on how much their palms have been greased, and not what they think is best 

for the constituents they serve. 

In this criminal appeal involving corruption in Alabama’s higher education 

system, we consider whether the district court abused its discretion by imposing a 

sentence of three years of probation (with a special condition of six to twelve 

months of home confinement) on a 67-year-old business owner who—over a 

period of four years—doled out over $600,000 in bribes to a state official in order 

to ensure that his company would continue to receive government contracts, and 

whose company reaped over $5 million in profits as a result of the corrupt 

payments. For the reasons which follow, we hold that such a sentence was indeed 

unreasonable. 

I

We begin with the facts, and then discuss what transpired in the district court 

at sentencing. Along the way, and in response to our colleague’s dissent, we add a 

bit of background on the relationship between departures under U.S.S.G. § 5K1.1

and variances after United States v. Booker, 543 U.S. 220 (2005).

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A

For years, James Winston Hayes ran ACCESS Group Software, LLC, a 

successful computer software company in Alabama. ACCESS sold educational 

software to the Alabama Department of Postsecondary Education (“ADPE”), and 

the two-year colleges it regulates. ACCESS did business with more than 25 twoyear colleges and technical schools in Alabama. 

Starting in 2002, when he was 59, Mr. Hayes decided to increase his 

company’s chances of being profitable by rigging the competitive bid processes

through which the ADPE awards contracts to vendors. Over the course of four 

years, Mr. Hayes paid over $600,000 in bribes to Roy Johnson—the thenChancellor of the ADPE—his family, and his friends. The payments, to list a few,

included $124,400 towards the construction costs of Mr. Johnson’s home; $23,850 

for a sound system in that home; and $55,000—as directed by Mr. Johnson—to 

Mr. Johnson’s son-in-law, an attorney, for legal services that were never provided 

to Mr. Hayes or ACCESS. In order to conceal the nature of the payments, Mr. 

Hayes and others reimbursed third parties and created false invoices, contracts, and 

mortgages. 

The bribes proved successful. From 2002 to 2006, ACCESS received more 

than $14 million in gross income from the ADPE, from which it realized a profit of 

approximately $5 million.

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At some point, the federal government began investigating corruption at the 

ADPE. During the early stages of that investigation, the government contacted Mr. 

Hayes and subpoenaed his bank records. Perhaps realizing that the jig was up, Mr. 

Hayes obtained counsel and began cooperating with the government. Among other 

things, Mr. Hayes permitted his office and vehicle to be wired for audio and video

and personally wore a recording device to tape meetings with several targets of the 

investigation. He also provided the government with documentation verifying his 

illicit financial dealings with a number of Alabama officials. 

In 2007, the government charged Mr. Hayes by information with bribing Mr. 

Johnson, the former Chancellor of the ADPE—an agency receiving federal 

funds—in violation of 18 U.S.C. § 666(a)(2) (Count 1), and conspiring to commit 

money laundering, in violation of 18 U.S.C. § 1956(h) (Count 2). The information 

also sought criminal forfeiture based on the charges in Counts 1 and 2. In 

February of 2008, Mr. Hayes pled guilty to Counts 1 and 2, and consented to 

forfeiture. 

The probation office prepared a presentence investigation report to be used 

at Mr. Hayes’ sentencing. The report indicated that, under the 2010 version of the 

Sentencing Guidelines Manual, Mr. Hayes scored out to a total offense level of 33

and had a criminal history category of I, resulting in an advisory guidelines range 

of 135 to 168 months’ imprisonment. Neither party voiced objections to the 

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report’s calculation of the advisory guidelines, and as a result the district court 

adopted that range at the initial sentencing hearing.

1

B

The Sentencing Guidelines contain a number of departure provisions. 

Among them is § 5K1.1, which allows a departure from the advisory guidelines

range “[u]pon motion of the government stating that the defendant has provided 

substantial assistance in the investigation or prosecution of another[.]” 

Because § 5K1.1 is silent as to the methodology to be used in determining 

the extent of a substantial assistance departure, the government has discretion in 

recommending a methodology, and the district court has discretion in deciding 

what methodology to use once it grants a motion for departure. See United States 

v. Lindsey, 556 F.3d 238, 245-46 (4th Cir. 2009); United States v. Floyd, 499 F.3d 

308, 312 n.6 (3d Cir. 2007). As the Seventh Circuit has explained: 

Once the sentencing court decides to depart downward, it in turn may 

quantify the assistance the defendant provided by a simple numerical 

reduction in the offense level or by a percentage reduction of the total 

sentence; both methods (and perhaps others we do not consider here) 

are tools that appropriately recognize the rationale of the guidelines—

that the reduction should reflect accurately the assistance that the 

defendant has rendered to the government. 

United States v. Senn, 102 F.3d 327, 332 (7th Cir. 1996). See also United States v. 

 1 The district court held a second sentencing hearing because it thought it might need 

testimony from witnesses concerning restitution. The parties ended up stipulating as to 

restitution, and the district court adopted their stipulation.

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Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009) (“A [d]istrict [c]ourt need not 

follow a particular formula in calculating a § 5K1.1 departure—it may be 

appropriate to depart by a certain number of months or guideline ranges below the 

initial sentencing range.”); United States v. Hargrett, 156 F.3d 447, 450 n.1 (2d 

Cir. 1998) (“A downward departure based on [§] 5K1.1 does not require the 

district [court] to pick a new offense level and a particular sentence within the 

range set for that level; rather the court may simply pick a sentence of so many 

months without mention of an offense level.”). 

Not surprisingly, therefore, reported cases illustrate a variety of approaches 

to § 5K1.1 departures. Sometimes, as was the case here, the departure is based on 

offense levels deducted from the defendant’s total offense level. See, e.g., United 

States v. Livesay, 525 F.3d 1081, 1087 (11th Cir. 2008) (government 

recommendation of three-level downward departure from defendant’s total offense 

level); United States v. Martin, 455 F.3d 1227, 1233 & n.4 (11th Cir. 2006)

(government recommendation of nine-level downward departure from defendant’s 

total offense level); United States v. Knapp, 955 F.2d 566, 568 (8th Cir. 1992) 

(district court’s seven-level downward departure from defendant’s total offense 

level). Sometimes the departure is based on a percentage deduction from the 

bottom, midpoint, or top of the defendant’s advisory guidelines range. See, e.g.,

United States v. Burns, 577 F.3d 887, 889 (8th Cir. 2009) (en banc) (government 

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recommendation of 15% downward departure); United States v. Senn, 102 F.3d 

327, 332 (7th Cir. 1996) (government recommendation of 50% downward 

departure). And sometimes the departure is based on a reduction of a specific 

number of months from the defendant’s advisory guidelines range. See, e.g.,

United States v. Koufos, 666 F.3d 1243, 1254 (10th Cir. 2011) (government 

recommendation of 20-month reduction from bottom and top of applicable range). 

Regardless of the methodology used, once the district court grants a motion 

for downward departure under § 5K1.1, it will be left with a new number (or range 

of numbers) insofar as the Sentencing Guidelines are concerned. See United States 

v. Hippolyte, 712 F.3d 535, 541 (11th Cir. 2013) (“A departure provision is a 

change to a sentencing guideline range based on, e.g., substantial assistance to 

authorities.”); U.S.S.G. § 1B1.1, n.1(E) (“‘Downward departure’ means [a] 

departure that effects a sentence less than a sentence that could be imposed under 

the applicable guideline range or a sentence that is otherwise less than the 

guideline sentence.”). The “calculation of the initial advisory [g]uidelines range, 

along with any applicable departures, results in a ‘final advisory [g]uidelines 

sentencing range.’” United States v. Losoya, 623 F.3d 624, 626 (8th Cir. 2010).

A concrete example helps put these principles into focus. Assume that a 

defendant has an advisory guidelines range of 70-87 months’ imprisonment. If the 

district court grants a government § 5K1.1 motion which recommends a 50% 

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departure from the bottom of that range, the new bottom number for guidelines

purposes will be 35 months of imprisonment (50% of 70 = 35). The district court 

will then have to determine whether, under the factors set forth in 18 U.S.C. § 

3553(a), it should sentence the defendant to 35 months, something less, or 

something more. That is the approach dictated by the Sentencing Guidelines and 

our cases. See U.S.S.G. § 1B1.1(a)-(c) (“Application Instructions”) (district court 

must first (a) determine the guidelines range, and then (b) consider departures, 

including those under Chapter 5K, before (c) taking into account the § 3553(a) 

factors); United States v. McVay, 447 F.3d 1348, 1356 (11th Cir. 2006) (“[A]fter it 

has decided the length of departure warranted by the substantial assistance motion, 

the district court is obliged to take into account the advisory [g]uidelines and the 

sentencing factors set forth in . . . § 3553(a) in fashioning a reasonable sentence.”); 

Martin, 455 F.3d at 1236 (same).

2

C

In this case, the government filed a motion for downward departure pursuant 

to § 5K1.1 based on Mr. Hayes’ substantial assistance, as well as a separate 

sentencing memorandum. In its motion, which discussed only matters related to 

Mr. Hayes’ cooperation and assistance, the government recommended that the 

 2 If the district court sentences a defendant to a term different than the one produced by a 

§ 5K1.1 downward departure, such a sentence is “considered a ‘variance’” in guidelines

parlance. See U.S.S.G. § 1B1.1, background. See also United States v. Lee, 725 F.3d 1159, 

1165 n.5 (9th Cir. 2013) (“a ‘variance’ [is] the third step of the [g]uidelines procedure”). 

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district court depart from an offense level of 33 to an offense level of 25, with a 

corresponding advisory guidelines range of 57-71 months’ imprisonment. Then, 

apparently traveling under the unstated assumption that the district court would 

grant its motion for departure, the government advocated that the district court 

sentence Mr. Hayes to 60 months in custody. In its separate memorandum, the 

government again recommended a final sentence of 60 months’ imprisonment, 

based in large part on its § 5K1.1 motion for a downward departure. In so doing, 

the government at times conflated the factors to be considered under § 5K1.1 with 

the factors to be considered under § 3553(a). Although the government’s separate 

bases for the ultimate 60-month recommendation may not have been artfully 

stated, at the initial and second sentencing hearings the district court and the parties 

understood that the government was moving for a downward departure (to 57-71 

months in custody) under § 5K1.1 based solely on Mr. Hayes’ substantial 

assistance, and that the government’s bottom-line recommendation of a 60-month

prison sentence corresponded to the point within the recommended post-departure 

range where the government thought the district court should sentence Mr. Hayes 

after considering the totality of the circumstances and the § 3553(a) factors.

3

 

The district court pointed out, and the government agreed, that consistent 

with McVay, 447 F.3d at 1356, it had to rule on the motion for downward 

 3 This was the same methodology employed in Martin, 455 F.3d at 1233 n.4. 

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departure before hearing from the parties on what would constitute a reasonable 

sentence under § 3553(a). At the first sentencing hearing, the district court granted 

the government’s § 5K1.1 motion, but departed more than the government had 

recommended. Considering only “[Mr. Hayes’] substantial assistance to the 

government[,]” the district court found that the “appropriate . . . guideline[s] level 

for consideration . . . [was] [l]evel 22, which when combined with the criminal 

history category of I[,] create[d] an advisory guideline[s] range of 41 to 51 

months.” 

After granting the government’s § 5K1.1 motion, the district court heard 

from the parties (mainly at the second sentencing hearing) with respect to the 

sentence it should impose. Mr. Hayes requested a downward variance to a 

sentence of probation or a relatively short term of imprisonment based on a number 

of factors, including his culpability relative to Mr. Johnson, his otherwise lawabiding life, his role as his father’s former caretaker, his age and deteriorating 

physical health, and his not posing a risk to society. The government responded 

that a total sentence of 60 months’ imprisonment was appropriate because Mr. 

Hayes’ crimes were serious and involved the corruption of high-ranking public 

officials, obstructive behavior, and significant amounts of state funds. The 

government emphasized that the sentence imposed on Mr. Hayes should be one 

that not just punished him for his conduct, but also deterred others from engaging 

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in similar conduct. 

The district court stated that it had sufficient information on all of the § 

3553(a) factors, except for the need to avoid unwarranted sentence disparity, and 

proceeded to read summaries of the dispositions in 14 related cases from a chart 

provided by the probation office. The district court then noted that Mr. Hayes’ 

“offense was serious” and that the “sentence should promote respect for the law 

and provide just punishment for the offense.” Additionally, the district court 

remarked “that just because a crime is a white collar crime, it does not mean that it 

does not need to be deterred,” and “agree[d] with the government that prison 

sentences are probably the best deterrence . . . [for] other people who might 

consider similar conduct.” The district court found that Mr. Hayes “seem[ed]

genuinely remorseful,” was unlikely to commit further crimes, and was not a risk 

to the public. In response to Mr. Hayes’ contentions regarding his age and health, 

the district court noted that it was “aware of the ability of the government to 

provide almost any medical care that’s needed[] [and that although] . . . age is 

something [it] can consider, . . . [it did not] consider it to be overwhelming or a 

large factor in this case.” 

Returning to the disparity issue, the district court said the following: “And 

I’ve spoken at length about the need to avoid unwarranted sentencing disparit[y]

among similarly situated defendants. And in having gone through all of that, I 

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don’t want anybody to think that [it] was like the overwhelming factor. It’s just I 

had a lot of information about that . . . that I hadn’t focused on and that I wanted to 

go through.” The district court did not explain what disparity, if any, would result 

if it sentenced Mr. Hayes to some term of imprisonment. 

The district court, noting its authority to impose a non-guidelines sentence 

under Booker, 543 U.S. at 259-60, sentenced Mr. Hayes to concurrent terms of

three years’ probation, with six to twelve months of home confinement. It also 

ordered Mr. Hayes to pay $628,454.28 in restitution, to forfeit $5 million, and to 

pay a $1,000 fine and $200 in special assessments. The district court stated that 

the sentence was “sufficient, but not greater than necessary, to comply with the 

statutory purposes of sentencing and is reasonable when considering the sentencing 

factors found at [§] 3553(a).” The government objected to the procedural and 

substantive reasonableness of the sentence, including the extent of the downward 

departure pursuant to § 5K1.1 and the reasonableness of the probationary terms the 

district court imposed.

On appeal, the government does not challenge the extent of the district 

court’s § 5K1.1 departure. The only argument the government makes is that the 

concurrent three-year terms of probation are substantively unreasonable. As a 

result, that is the only argument we address.

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II

In imposing sentence, a district court may not presume that the range 

produced by application of the Sentencing Guidelines is reasonable, see Rita v. 

United States, 551 U.S. 338, 351 (2007), and must consider the factors set out in 

18 U.S.C. § 3553(a). These are “(1) the nature and circumstances of the offense 

and the history and characteristics of the defendant; (2) the need for the sentence 

imposed (A) to reflect the seriousness of the offense, to promote respect for the 

law, and to provide just punishment for the offense; (B) to afford adequate 

deterrence to criminal conduct; (C) to protect the public from further crimes of the 

defendant; and (D) to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most efficient manner; 

(3) the kinds of sentences available; (4) the kinds of sentence and the sentencing 

range [as set forth in the Sentencing Guidelines] . . .; (5) any pertinent policy 

statement . . . issued by the Sentencing Commission . . . .; (6) the need to avoid 

unwarranted sentencing disparities among defendants with similar records who 

have been found guilty of similar conduct; and (7) the need to provide restitution to 

any victims of the offense.” 18 U.S.C. § 3553(a). 

A

We review the substantive reasonableness of a sentence for abuse of 

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). In conducting that 

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review, we examine the “totality of the circumstances, including the extent of any 

variance from the [g]uidelines range,” but we cannot presume that a sentence 

outside of that range is unreasonable. Id. 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 [we] might have reasonably concluded that a different 

sentence was appropriate is insufficient to justify reversal[.]” Id. See also United 

States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009) (“The weight to be 

accorded any given § 3553(a) factor is a matter committed to the sound discretion 

of the district court, and we will not substitute our judgment in weighing the 

relevant factors.”) (citation and internal quotation marks omitted). Nevertheless, 

as we said several years ago,

[a] district court abuses its discretion when it (1) fails to afford 

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

gives significant weight to an improper or irrelevant factor, or (3) 

commits a clear error of judgment in considering the proper factors. 

As for the third way that discretion can be abused, a district court 

commits a clear error of judgment when it considers the proper factors

but balances them unreasonably[,] . . . arriving at a sentence that does 

not achieve the purposes of sentencing as stated in § 3553(a).

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (citations and 

internal quotation marks omitted). 

We acknowledge the institutional superiority that district courts possess with 

regards to sentencing, and are mindful that appellate review for reasonableness is 

not a license to substitute our views for those of the district court. We are 

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nevertheless convinced, under the deferential abuse of discretion standard, that the 

district court here committed a clear error of judgment in balancing the § 3553(a) 

factors, and that its downward variance to probation produced a sentence that was 

outside of the range of reasonable sentences permitted by the record. See Gall, 552 

U.S. at 51; Irey, 612 F.3d at 1190. 

In at least one other case involving both an initial § 5K1.1 departure and a 

subsequent variance, we analyzed the substantive reasonableness of the variance 

employing the post-departure range/number as the reference point. See United 

States v. Crisp, 454 F.3d 1285, 1289-90 (11th Cir. 2006) (“Even if the district court 

had not based the extent of the § 5K1.1 departure on improper considerations, its 

improper leap from the post-departure guideline range of 6-12 months to 5 hours 

would still have to be corrected.”). We do the same here, and use the 41-51 month 

range produced by the § 5K1.1 departure as the reference point for the variance. 

The district court recognized that Mr. Hayes’ crimes (bribes of $600,000 

paid out over four years, resulting in approximately $5 million in profits) were 

serious, that white-collar offenses need to be deterred, and that prison sentences are 

probably the best deterrent for those who might think about engaging in similar 

conduct. It never explained, however, how concurrent probationary terms with a 

period of home confinement would constitute just punishment for Mr. Hayes’ 

multi-year bribery scheme, provide general deterrence for others, or promote 

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respect for the law. See generally United States v. Shaw, 560 F.3d 1230, 1238 

(11th Cir. 2009) (explaining that the “justification must be compelling enough to 

support the degree of the variance and complete enough to allow for meaningful 

appellate review”). 

As Mr. Hayes points out, the district court found that he was genuinely 

remorseful, was not likely to commit further crimes, and was not a risk to the 

public, but these factors—which are usually present in most white-collar cases 

resulting in a guilty plea—cannot be seen in a vacuum and must be balanced 

against the other applicable § 3553(a) factors. In any event, the district court did 

not explain why they called for a variance down to probation. 

We recognize that the district court took into account the possibility of

unwarranted sentencing disparity, but that factor, on this record, did not justify 

sentencing Mr. Hayes to probation. “[T]he need to avoid unwarranted sentencing 

disparity . . . requires the [district] court to consider other similarly situated 

defendants . . . who were convicted of similar crimes.” United States v. McQueen, 

727 F.3d 1144, 1160 (11th Cir. 2013). First, the district court never explained 

what unwarranted sentencing disparity would result if Mr. Hayes were sentenced 

to some term of imprisonment, and our review of the chart prepared by the 

probation office does not reveal any such unwarranted sentencing disparity among 

similarly situated individuals. The one person who could be said to be most 

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closely situated to Mr. Hayes was Mr. Johnson, the former Chancellor of the 

ADPE and the recipient of Mr. Hayes’ bribes. Mr. Johnson, who like Mr. Hayes 

received a downward departure based on a government § 5K1.1 motion, was 

sentenced to 78 months in prison after pleading guilty to conspiracy to commit 

bribery, bribery, conspiracy to commit money laundering, obstruction of justice, 

and tampering with a witness. Second, even if the loss resulting from crimes 

involving corruption can be seen as a rough proxy for similarity, four of the five 

related defendants who were responsible for losses over $250,000 received prison 

terms. And the one who was sentenced to probation was responsible for just over 

$300,000 in losses, less than half of the amount of money that Mr. Hayes was 

ordered to pay in restitution. 

The district court also considered Mr. Hayes’ age and health, but it did not 

think they were overwhelming factors. They, too, do not support Mr. Hayes’ 

sentence of probation. 

B

In a number of opinions—some involving defendants who provided 

substantial assistance to the government—we have explained that general 

deterrence is an important factor in white-collar cases, where the motivation is 

greed. In those same opinions, we have set aside sentences of little or no 

imprisonment because they do not constitute just punishment for the offense, do 

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not promote respect for the law, and will not do much to deter similar criminal 

activity by others. See, e.g., United States v. Kuhlman, 711 F.3d 1321, 1328-29 

(11th Cir. 2013) (vacating, as substantively unreasonable, sentence of probation 

(for “time served” while on pretrial release) for defendant responsible for $3 

million health care fraud scheme); United States v. Livesay, 587 F.3d 1274, 1287-

89 (11th Cir. 2009) (vacating, as substantively unreasonable, sentence of probation 

for defendant involved in fraud scheme resulting in loss of over $80 million); 

Martin, 455 F.3d at 1239-41 (vacating, as substantively unreasonable, sentence of 

seven days in custody for defendant involved in fraud scheme resulting in loss of 

over $80 million); Crisp, 454 F.3d at 1290-92 (vacating, as substantively 

unreasonable, sentence of probation for defendant who participated in bank fraud 

scheme resulting in loss of about $484,000). We come to the same conclusion 

here. 

Bribery cannot properly be seen as a victimless crime, for in a sense it 

threatens the foundation of democratic government. Putting aside the financial 

havoc it can cause, bribery tears at the general belief of the citizenry that 

government officials will carry out their duties honestly, if not always competently. 

And that harm, though it may at times appear intangible, is real.4

 4 “[A]mong a people generally corrupt liberty cannot long exist.” EDMUND BURKE, 

Letter to the Sheriffs of Bristol (April 3, 1777), in HENRY ROGERS, THE WORKS OF THE RIGHT 

HON. EDMUND BURKE, VOL. 1, at 221 (London 1837).

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C

We do not mean to suggest that a downward variance can never be granted 

in white-collar cases, or that a sentence of probation is never permissible for 

defendants convicted of bribery or corruption offenses. Indeed, we have upheld, as 

reasonable, downward variances in several fraud cases where the government has 

appealed. See United States v. Vawter, 167 F. App’x 101, 103, 2006 WL 325745 

(11th Cir. 2006); United States v. Montgomery, 165 F. App’x 840, 842-43, 2006 

WL 284205 (11th Cir. 2006). 

But there are bribes, and then there are bribes. Mr. Hayes did not just give a 

one-time gratuity to a local zoning inspector to expedite a building permit for a 

pool. He paid over half a million dollars in bribes, over a four-year period, to a 

high-ranking Alabama official so that his company could continue to receive 

lucrative government contracts—efforts which were rewarded by a corporate 

bottom line that got fatter by $5 million—and for that he received probation. As 

corruption cases go, this was bribery writ large, and on this record the district 

court’s significant variance down to probation cannot stand.

D

In closing, we respond to some of the issues raised by our colleague in 

dissent. As we explain, we disagree with his view of the case.

First, our colleague says that the government led the district court into 

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committing procedural error by recommending that Mr. Hayes’ offense level be 

reduced by a certain number of levels for substantial assistance. We do not believe 

that assessment is correct. The numerous cases cited earlier in this opinion 

indicate that one of the permissible ways to compute a departure under § 5K1.1 is 

to reduce a defendant’s offense level. See Lindsey, 556 F.3d at 245-46; Livesay,

525 F.3d at 1087; Floyd, 499 F.3d at 312 n.6; Martin, 455 F.3d at 1233 & n.4; 

Senn, 102 F.3d at 332. Although § 5K1.1 has been around for decades, we know 

of no cases which have suggested, much less held, that a substantial assistance 

departure cannot be accomplished in this manner. Tellingly, our colleague does 

not cite to any.

5

Second, according to our colleague we are sanctioning a procedural error 

committed by the district court at the behest of the government. That, however, is 

not so, for there was no procedural error. As we have already explained, nothing 

in the text of § 5K1.1 prohibits a district court from effecting a substantial 

assistance departure through a reduction of the defendant’s total offense level. 

 5 In the context of departures under § 5K2.0, we have written that, if the district court 

chooses to depart, “it has ‘wide discretion’ in determining [the defendant’s] base offense level.” 

United States v. Gibson, 434 F.3d 1234, 1253 (11th Cir. 2006). What we said in Gibson is 

consistent with our decision in this case. 

Additionally, to the extent our colleague’s dissent might be read as suggesting that the 

district court could only have “departed” downward within Mr. Hayes’ original sentencing range 

of 135-168 months, such a suggestion would run counter to § 5K1.1. The Third and Fifth 

Circuits have reversed § 5K1.1 “departures” within the original sentencing range, holding that 

they are not “departures” at all. See Vazquez-Lebron, 582 F.3d at 445-46; United States v. 

Hashimoto, 193 F.3d 840, 843-44 (5th Cir. 1999). 

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“Accordingly, the district court’s reference to offense levels [here] in making its 

discretionary decision of how far to depart did not amount to the application of a 

‘sentencing range’ authorized and made applicable by the Sentencing 

Guidelines[.]” Lindsey, 556 F.3d at 246.6

 

It may be that our colleague thinks that the § 5K1.1 motion did not justify 

the substantial departure the government was recommending, and/or that the 

district court departed too far when it granted that motion. Whatever the validity 

of those concerns, we do not comment on them because no one has raised them on 

appeal. The government could have tried to argue that the district court erred in 

departing beyond its § 5K1.1 recommendation, or committed another type of

procedural error, but it chose not to make those arguments in its brief, and our 

general practice is to not address issues that are not properly raised by the parties. 

We recognize that, normally, we ensure that there is no procedural error 

before addressing a claim of substantive unreasonableness, see Gall, 552 U.S. at 

51, but we will not reach out to address a possible procedural error when neither 

the defendant nor the government have complained about it. Our cases, in fact, are 

replete with the rule that we do not have a duty to raise and decide issues—even 

 6 Even if we assume that the district court committed procedural error, the government 

did not unambiguously invite the alleged error, a point our colleague seemingly acknowledges by 

conceding that the colloquy between the district court and the government “is somewhat 

convoluted.” Under our precedent, the invited error doctrine is not triggered by ambiguous 

statements or representations. See United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) 

(“In the light of Dortch’s ambiguous statement to the district court, the doctrine of invited error 

does not apply.”).

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22

constitutional ones—not mentioned by the parties. See, e.g., United States v. 

Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004); United States v. Rodriguez, 279 F.3d 

947, 950 n.3 (11th Cir. 2002); United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 

1998). 

The cases our colleague cites are consistent with our general approach. In 

those cases either the defendant or the government asserted procedural error in 

contesting the sentence, and the panels in those cases understandably ruled on the 

procedural challenges before addressing substantive reasonableness. See United 

States v. Barner, 572 F.3d 1239, 1247-52 (11th Cir. 2009) (defendant raised claim 

of procedural error); United States v. Carter, 564 F.3d 325, 326 (4th Cir. 2009) 

(government raised claim of procedural error); United States v. Stephens, 549 F3d 

459, 466 (6th Cir. 2008) (defendant raised claim of procedural error); United States 

v. Langford, 516 F.3d 205, 207 (3d Cir. 2008) (defendant raised claim of 

procedural error). Here there are no procedural challenges by either side. 

III

The concurrent three-year probationary sentences in this case are 

substantively unreasonable given the factors set forth in § 3553(a). First, the 

sentences convey the message “that would-be white-collar criminals stand to lose 

little more than a portion of their ill-gotten gains and practically none of their 

liberty,” Martin, 455 F.3d at 1240, and accordingly do not constitute just 

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23

punishment for Mr. Hayes’ offenses or promote respect for the law. Second, the

sentences do not provide for general deterrence because “[t]he threat of spending 

time on probation simply does not, and cannot, provide the same level of 

deterrence as can the threat of incarceration in a federal penitentiary for a 

meaningful period of time.” Livesay, 587 F.3d at 1279. Third, the sentences were 

not required to eliminate any sentencing disparity among similarly situated 

offenders because no such disparity existed. The sentences imposed on Mr. Hayes 

are therefore vacated, and the case is remanded for resentencing.

VACATED AND REMANDED FOR RESENTENCING.

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24

TJOFLAT, Circuit Judge, dissenting:

I fully agree with the court that the sentence of probation Hayes received in 

this case of massive public corruption is shockingly low and should not have been 

imposed. In appealing the sentence, the Government treats the District Court as 

the scapegoat, as if placing Hayes on probation was all the court’s doing. The truth 

is that it was the Government’s doing. To ensure that Hayes was given adequate 

credit for cooperating in its investigation, the Government deliberately led the 

District Court to abandon the Sentencing Guidelines, which called for a prison 

sentence of 135 to 168 months,1 and then to ignore the Supreme Court’s explicit 

instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 

445 (2007), on the procedure to use in fashioning an appropriate sentence. This set 

the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months 

and its creation of a downward variance to a sentence of probation. 

In appealing Hayes’s sentence to this court, the Government deliberately 

avoids any discussion of the District Court’s procedural error.2

 To the contrary, it 

accepts the fictitious Guideline range the court adopted. All it complains of is the 

variance from that fictitious range to a sentence of probation, arguing that it is 

 1 Although Hayes was to receive two sentences—one on Count One of the information, 

the other on Count Two—the parties and the court refer to the sentences as one sentence. For 

ease of discussion, I do the same.

2 In doing so, the Government invites this court to disregard the Supreme Court’s 

instruction in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).

Case: 11-13678 Date Filed: 08/12/2014 Page: 24 of 65 
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substantively unreasonable. Because it invited the procedural error, which, in turn, 

led to the complained-of substantive error, the “invited error doctrine” precludes 

the Government from prevailing in this appeal. Yet the court fails to acknowledge 

that a procedural error has occurred. Instead, it assesses the substantive 

reasonableness of Hayes’s procedurally flawed sentence—something the Supreme 

Court prohibits—and thereby avoids the need to grapple with the Government’s 

invited error.3

 I dissent from the court’s failure to invoke the doctrine and to send 

the Government hence without day. 

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s 

conviction and sentencing. In part II, I describe how the Guidelines are supposed 

to operate and will show how the Government and the District Court misapplied 

the Guidelines and set the stage for the sentence at issue. Part III outlines the role 

the courts of appeals play in reviewing a defendant’s sentence, pinpoints the 

procedural errors in this case, and explains why the invited error doctrine precludes 

the Government from capitalizing on its induced error and obtaining relief. Part IV 

concludes. 

 3

 In ignoring the procedural error, the court effectively adopts the approach the 

Government takes in his brief—that this court should entertain its substantive unreasonableness 

argument straightway without first determining whether the District Court committed procedural 

error. See infra part III.

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I.

From 2002 until 2006, James Hayes paid over $600,000 in bribes to Roy 

Johnson, the Chancellor of the Alabama Department of Postsecondary Education 

(the “ADPE”), which included: (1) a $124,000 payment to Johnson for expenses 

Johnson incurred in constructing his home, disguised as a payment to Johnson’s 

driver, Lanier Anderson Higgins, for work Higgins never performed; (2) a $23,850 

payment to Johnson to fund a sound system in Johnson’s home, which Hayes 

disguised by using a third-party business to pay for the sound system and then 

reimbursing the business; (3) a $55,000 payment to Johnson’s son-in-law Greg 

Morgan, an attorney, for legal services he never provided; and (4) a $24,418.93 

payment to the Retirement Systems of Alabama on behalf of the Dean of Nursing 

at Southern Union State Community College.

In exchange, Johnson ensured that Access Group Software, LLC, of which 

Hayes was founder and owner, would win contracts to provide software services 

and associated services. Most of the time Access was the low bidder. On the few 

occasions when it was not, Johnson instructed the college president to award 

Access the contract anyway. Johnson’s influence was such that the colleges 

bought from Access even when its products were inferior to those of other bidders. 

In total, Access’ gross revenue increased to over $14 million and its profits to $5 

million.

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Hayes’s involvement in the corruption at the ADPE began to unravel after a 

federal grand jury subpoenaed his bank records. Hayes immediately took steps to 

disguise the true nature of his relationship with Johnson, but his attempts to 

conceal his criminal activity failed, and he was arrested for bribery, in violation of 

18 U.S.C. § 666(a)(2). After he realized the strength of the Government’s case 

against him, Hayes agreed to cooperate and assisted federal agents in their 

investigation of others involved in Johnson’s scheme.

On December 26, 2007, the Government filed in the United States District 

Court for the Northern District of Alabama an information charging Hayes in 

Count One with federal-funds bribery, in violation of 18 U.S.C. § 666(a)(2), and in 

Count Two with conspiring to launder money under 18 U.S.C. § 1956(a)(1)(B)(i), 

in violation of §1956(h). The information also included a forfeiture count, Count 

Three. It alleged that Hayes’s interests in the proceeds of the crimes charged in 

Counts One and Two amounted to at least $5 million and that such interests were 

subject to forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c). 

The Government filed the information pursuant to a plea agreement it had reached 

with Hayes. Pursuant to that agreement, Hayes, on February 21, 2008, pled guilty 

to Counts One and Two and agreed to forfeit $5 million to the United States, 

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representing his interest in the proceeds of the crimes alleged in those Counts.4 

The plea agreement contained a cooperation provision in which Hayes promised to 

provide truthful and complete information about Johnson’s bribery scheme to the 

Government’s investigators and at the Government’s request to testify before the 

grand jury and at the trial of anyone indicted for participating in the scheme. In 

return, the Government promised to recommend to the District Court at Hayes’s 

sentencing that the court depart downward from the applicable Guidelines range 

pursuant to U.S. Sentencing Guidelines Manual § 5K1.1, if Hayes’s cooperation 

rose to the level of substantial assistance for the reasons stated in § 5K1.1.5

II.

The Supreme Court has clearly prescribed the procedure a district court must 

follow in sentencing a defendant. It is a three-step process. First, the district court 

“begin[s] . . . by correctly calculating the applicable Guidelines range. As a matter 

of administration and to secure nationwide consistency, the Guidelines should be 

the starting point and the initial benchmark.” Gall, 552 U.S. at 49, 128 S. Ct. at 

 4

 On October 27, 2008, the District Court entered a Final Order of Forfeiture. The order 

recited that, pursuant to the plea agreement, Hayes agreed to forfeit to the United States $5 

million “as proceeds of the illegal acts charged in Counts One and Two of the Information,” that 

Hayes had “consented to the entry of a money judgment against him as part of his sentencing in 

[the case],” and that “based . . . [on] the terms of [the] Plea Agreement, the Attorney General is 

now entitled to possession of said property.” Doc. 16, at 1–2. The order then provided that 

Hayes forfeited “the sum of $5,000,000.00 to the United States,” that the Attorney General was 

“authorized to seize the property forfeited,” and that the “Order of Forfeiture operates as a 

money judgment against . . . Hayes, thereby eliminating the requirement for ancillary 

proceedings.” Doc. 16, at 2–3.

5

 See infra part II.A.

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596 (citation omitted). Second, after arriving at the proper Guidelines range, the 

court must “giv[e] both parties an opportunity to argue for whatever sentence they 

deem appropriate.” Id. Third, the court must “consider all of the [18 U.S.C.] 

§ 3553(a) factors to determine whether they support the sentence requested by a 

party.”6

 Id. at 49–50, 128 S. Ct. at 596. In doing that, the court will bear in mind 

that “[t]he Guidelines as written reflect the fact that the Sentencing Commission 

examined tens of thousands of sentences and worked with the help of many others 

in the law enforcement community over a long period of time in an effort to fulfill 

[its] statutory mandate,” Rita v. United States, 551 U.S. 338, 349, 127 S. Ct. 2456, 

2464, 168 L. Ed. 2d 203 (2007), to “assure the meeting of the purposes of 

sentencing as set forth in [18 U.S.C. §] 3553(a)(2),” 28 U.S.C. § 991(b). “[W]hen 

the [court’s] discretionary decision accords with the Commission’s view of the 

 6 18 U.S.C. § 3553(a) lists seven factors district courts are to consider when sentencing. 

The first is “the nature and circumstances of the offense and the history and characteristics of the 

defendant.” § 3553(a)(1). The second looks to the general purposes of sentencing,

the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to 

provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective manner.

§ 3553(a)(2). The third is “the kinds of sentences available,” the fourth is “the kinds of sentence 

and the sentencing range” under the Guidelines, the fifth is “any pertinent policy statement . . . 

issued by the Sentencing Commission,” the sixth is “the need to avoid unwarranted sentence 

disparities among defendants with similar records who have been found guilty of similar 

conduct,” and, finally, the seventh is “the need to provide restitution to any victims of the 

offense.” § 3553(a)(3)–(7).

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appropriate application of § 3553(a) in the mine run of cases, it is probable that the 

sentence is reasonable.” Rita, 551 U.S. at 351, 127 S. Ct. at 2465. “If [the court] 

decides that an outside-Guidelines sentence is warranted, [it] must consider the 

extent of the deviation and ensure that the justification is sufficiently compelling to 

support the degree of the variance.” Gall, 552 U.S. at 50, 128 S. Ct. at 597. The 

court must “adequately explain” the reasons for arriving at the chosen sentence, 

and “a major departure should be supported by a more significant justification than 

a minor one.” Id. As the Supreme Court explained in Peugh v. United States, ___ 

U.S. ___, ___, 133 S. Ct. 2072, 2083, 186 L. Ed. 2d 84 (2013), “sentencing 

decisions are anchored by the Guidelines.”

A.

Federal sentencing is an adversarial process, Rita, 551 U.S. at 351, 127 S. 

Ct. at 2465, with the Government and the defendant engaged in “a confrontation 

. . . similar to that which occurs at a civil bench trial,” United States v. Scroggins, 

880 F.2d 1204, 1209 (11th Cir. 1989). The presentence report (the “PSI”) serves 

as the starting point for arriving at an appropriate sentence in the same way that a 

pretrial stipulation serves as the starting point for arriving a judgment in a civil 

case. The PSI identifies all applicable Guidelines and Sentencing Commission 

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31

policy statements, calculates the defendant’s total offense level7 and criminal 

history,8 states the resulting Guidelines sentencing range9 and types of sentences 

available, and identifies any factor relevant to the appropriate type or length of 

sentence and any basis for departing from the Guidelines range. Fed. R. Crim. P. 

32(d)(1). It also includes additional information such as a defendant’s history and 

characteristics, as well as assessments of any financial, social, psychological, and 

medical impact the defendant’s crimes had on the victims. Fed. R. Crim. P. 

32(d)(2). The parties have an opportunity to object to the PSI. If objections are 

made, the Probation Office takes them into account and revises the PSI to the 

extent it deems necessary. Fed. R. Crim. P. 32(f). At least seven days prior to the 

commencement of the sentencing proceeding, the Probation Office submits to the 

parties and the court the final PSI, accompanied by an addendum listing the factual 

issues, and thus the correct Guidelines calculation, to be resolved at sentencing. 

Fed. R. Crim. P. 32(g).

 7 The total offense level serves as a proxy for the need for a sentence “to reflect the 

seriousness of the offense, to promote respect for the law, and to provide just punishment for the 

offense,” § 3553(a)(2)(A), as well as the need to “afford adequate deterrence to criminal 

conduct,” § 3553(a)(2)(B), and the adjustments, which are not necessarily related to the 

§ 3553(a)(2)(A)–(B) purposes.

8 The criminal history category serves as proxy for the need “to protect the public from 

further crimes of the defendant.” § 3553(a)(2)(C). In other words, it is a proxy for recidivism. 

Thus, a defendant with a criminal history category of I does not need to be incarcerated to protect 

the public. 

9 Based on a defendant’s offense level and criminal history category, the court calculates 

a Guidelines range from the sentencing table. See U.S.S.G. Ch. 5, Pt. A. Each cell in the table 

has a range of numbers, which corresponds to the upper and lower end of the recommended term 

of imprisonment for the defendant, based on the total offense level and criminal history category.

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In this case, the Probation Office prepared and submitted to the parties and 

the District Court a PSI reciting the facts underpinning the offenses described in 

Counts One and Two and setting out the appropriate sentencing options under the 

Guidelines for those counts. The PSI calculated a total offense level of 33 and a 

criminal history category of I and determined that the Guidelines prescribed prison 

terms for Counts One and Two of the information ranging from 135 to 168 

months,10 supervised release terms of two to three years, a fine of $17,500 to 

$175,000, restitution to ADPE of $2.4 million, and forfeiture as indicated in the 

plea agreement. Neither party objected to any of the PSI’s factual statements 

describing the criminal activity or to the proceeds of that activity as depicted in the 

information. Nor did either party object to the PSI’s sentencing options, including 

its calculation of the range of imprisonment, 135 to 168 months. Nor did Hayes 

object to the PSI’s requirement that he make restitution to the ADPE in the sum of 

$2.4 million.

 10 The maximum term of imprisonment provided by statute was ten years for Count One, 

18 U.S.C. § 666(a)(2), and twenty years for Count Two, 18 U.S.C. § 1956(a)(1)(B), (h). “Where 

the statutorily authorized maximum sentence is less than the minimum of the applicable 

guideline range [as it was for Count One], the statutorily authorized maximum sentence [is] the 

guideline sentence.” U.S. Sentencing Guidelines Manual § 5G1.1(a). The guideline range for 

Count One thus became 120 months. Because the maximum sentence for Count Two exceeded 

the 135 to 168 months range, the Count Two sentence could exceed the Count One sentence and 

create a total prison term of ranging from 135 to 168 months.

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Also prior to the sentencing hearing, the Government filed a Motion for 

Downward Departure Pursuant to U.S.S.G. § 5K1.1,11 which sought to have 

Hayes’s sentence reduced based on his substantial assistance to the Government 

during its investigation of the bribery scheme. In its motion,12 the Government 

urged the District Court, “[b]ased upon the defendant’s substantial assistance,” to 

“depart from total offense level 33 to level 25, which results in an advisory 

guideline range of 57–71 months,[13] and impose a sentence of imprisonment of 60 

months.” Doc. 22, at 1. The motion did not explain how Hayes’s substantial 

assistance could appropriately serve as the basis for lowering the total offense level 

 11 Section 5K1.1 of the U.S. Sentencing Guidelines provides:

Upon motion of the government stating that the defendant has provided 

substantial assistance in the investigation or prosecution of another person who 

has committed an offense, the court may depart from the guidelines. 

(a) The appropriate reduction shall be determined by the court for reasons stated 

that may include, but are not limited to, consideration of the following:

(1) the court’s evaluation of the significance and usefulness of the defendant’s 

assistance, taking into consideration the government’s evaluation of the assistance 

rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony 

provided by the defendant;

(3) the nature and extent of the defendant’s assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his 

family resulting from his assistance;

(5) the timeliness of the defendant’s assistance.

12 The Government filed the motion on May 9, 2011. It filed its Sentencing 

Memorandum the same day and its Amended Sentencing Memorandum on May 10, 2011.

13 The Guidelines sentencing table indicates that an offense level of 33 and a criminal 

history category of I (Hayes’s criminal history category) creates a sentence range of 135 to 168 

months; an offense level of 25 and a criminal history category of I creates a sentence range of 57 

to 71 months. U.S.S.G. Ch. 5, Pt. A.

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34

or Guidelines range of 135 to 168 months. It provided no explanation because a 

legitimate explanation was not possible. 

Substantial assistance is wholly irrelevant in determining a total offense 

level.14 And although the factors in § 5K1.1 are “not an exhaustive list,” courts are 

“prohibited from considering sentencing factors unrelated to the nature and extent 

of a defendant’s assistance in making § 5K1.1 departures.” United States v. 

Martin, 455 F.3d 1227, 1235–36 (11th Cir. 2006). As such, a finding that the 

defendant provided substantial assistance cannot change the calculation of the total 

offense level or the “applicable Guidelines range” under Gall, because substantial 

assistance is unrelated to the determination of that range. See 28 U.S.C. § 991(b); 

28 U.S.C. § 994(c)–(d) (listing factors the U.S. Sentencing Commission must take 

into account when creating offense levels—including “the grade of the offense,” 

“the deterrent effect a particular sentence may have on the commission of the 

offense by others,” and “the current incidence of the offense in the community and 

in the Nation as a whole”—and the factors to be considered in creating criminal 

history categories—including age, vocation and skills, community ties—but not 

mentioning substantial assistance as a basis for either).

 14 The total offense level considers “the seriousness of the average offense sentenced 

under that particular guideline,” “various factors considered relevant to the defendant’s offense 

conduct,” and “certain factors considered generally relevant for sentencing purposes.” 

Scroggins, 880 F.2d at 1210. 

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35

In urging the court to create an arbitrary Guidelines range based on the 

§ 5K1.1 factors, the Government invited the court to commit “procedural error.” 

See Gall, 552 U.S. at 51, 128 S. Ct. at 597 (describing significant procedural 

errors, including “failing to calculate (or improperly calculating) the Guidelines 

range”). This type of procedural error would normally be a ground for vacting the 

sentence and remanding the case for resentencing. See, e.g., United States v. 

Gupta, 572 F.3d 878, 890–92 (11th Cir. 2009) (vacating and remanding a 

defendant’s sentence after the district court improperly calculated the total offense 

level).

Along with its motion, the Government filed a memorandum recommending 

that Hayes be sentenced to 60 months’ imprisonment. The memorandum stated:

In accordance with the written plea agreement, the Government must 

recommend a sentence that departs below the low end of the 

Guidelines range determined by the Court at sentencing if Defendant 

provided substantial assistance. As explained below, the Government 

believes the Guidelines range is correctly calculated in the [PSI] as 

135–168 months. Based on the Defendant’s substantial assistance, 

and in light of the sentencing factors set for the in 18 U.S.C. 

§ 3553(a), the Government believes a sentence of 60 months is 

reasonable.

Doc. 24, at 2. After reiterating that “the correct Guidelines range is 135–168 

months,” the Government stated that it “believe[d Hayes’s] assistance warrants a 

downward departure from this Guidelines range to a sentence of 60 months.” Doc. 

24, at 3. The memorandum proceeded to describe the § 3553(a) sentencing factors 

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36

in general terms, and assured the court that a 60-month sentence was consistent 

with those factors. The Government did not reference the Guidelines range again, 

nor did it explain why a sentence that was more than 50 percent lower than the low 

end of that range comported with the § 3553(a) factors. The Government’s

memorandum made no reference to creating a substitute offense level or 

Guidelines range based on Hayes’s substantial assistance.15

 15 A close reading of the Government’s § 5K1.1 motion and its Sentencing Memorandum 

together presents contradictory propositions that are difficult, if not impossible, to reconcile and 

applies § 5K1.1 in an unlawful manner. I start with the Memorandum because its service was to 

support the motion.

The Memorandum does not explain how a sentence of 60 months would accomplish the 

purposes set out in § 3553(a)(1)(A) and (B), to provide just punishment and deter others from 

committing the public corruption crimes Hayes committed. Were the Government now to 

explain how sentences of 60 months would satisfy these (A) and (B) purposes, I suppose that it 

would point to our precedent which requires a court to take the Guidelines range (135 to 168 

months) and the § 3553(a)(A) and (B) factors (that created that range) into account after it 

tentatively decides the credit it will give the defendant for his § 5K1.1 assistance. See, e.g., 

United States v. McVay, 447 F.3d 1348, 1356 (11th Cir. 2006) (“[A]fter it has decided the length 

of departure warranted by the substantial assistance motion, the district court is then obliged to 

take into account the advisory Guidelines range and the sentencing factors set forth in 18 U.S.C. 

§ 3553(a) in fashioning a reasonable sentence.”). Then, having taken the Guidelines range and 

the § 3553(a) factors into account, the Government would say that a § 5K1.1 departure of 75 

months from the low end of the Guidelines range to a sentence of 60 months would not frustrate 

the sentencing goals reflected in the 135- to 168-month range. Those goals would still be met. 

However, the position the Government took in its § 5K1.1 motion suggested that a 75-

month departure from the Guidelines range of 135 to 168 months would frustrate those goals. 

The Government apparently thought that this frustration could be avoided if the District Court 

lowered the Guidelines range—and thus reconsidered the sentencing goals of the 135- to 168-

month range—so that a sentence of 60 months would be an inside-Guidelines sentence. An 

inside-Guidelines sentence would not likely engender the public criticism a 75-month departure 

would produce. The Government’s motion therefore recommended that, “based on the 

defendant’s substantial assistance,” the District Court depart from the Guidelines range of 135 to

168 months to a Guidelines range of 57 to 71 months, then impose a sentence of 60 months 

imprisonment—a sentence within the Guidelines range.

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37

The Government’s § 5K1.1 motion and its Sentencing Memorandum 

presented the District Court with two contradictory propositions. A 75-month 

departure from the Guideline range of 135 to 168 months to a sentence of 60 

months would not be substantively unreasonable because it would not 

impermissibly frustrate the sentencing goals of § 3553(a)(2)(A) and (B). At the 

same time, a 75-month departure from that range would be substantively 

unreasonable (which is why the § 5K1.1 motion asked the court to establish a new 

Guidelines range of 57 to 71 months). 

To avoid this dilemma, the Government recommended in its § 5K1.1 motion 

that, based on the defendant’s substantial assistance, the District Court find a 

substitute offense level and Guidelines range—level 25 with a Guidelines range of 

57 to 71 months—within which a sentence of 60 months could be imposed. But, 

as I have already explained, the court could not give effect to this Guidelines range 

recommendation because the law precluded it from doing so. 

B.

1.

Hayes’s sentencing proceeding commenced on June 8, 2011. The District 

Court began the proceeding, as Gall instructs, by determining the applicable 

Guidelines range. After hearing no objections, adopted the PSI’s statements of fact 

and sentencing options. The court made specific findings that “the guidelines 

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38

offense level is 33. The criminal history category is I. And the advisory guideline 

imprisonment range is from 135 months to 168 months.” Doc. 28, at 4. The 135-

to 168-month range of imprisonment then became the “applicable Guidelines 

range,” Gall, 552 U.S. at 49, 128 S. Ct. at 596, which “anchor[s] . . . the district

court’s discretion” in imposing a final sentence, Peugh, ___ U.S. at ___, 133 S. Ct. 

at 2087.

2.

After fixing the applicable Guidelines range at 135 to 168 months, the court 

proceeded to Gall’s second step: “giving both parties an opportunity to argue for 

whatever sentence they deem appropriate.” 552 U.S. at 49, 128 S. Ct. at 596. The 

court began by taking up the Government’s § 5K1.1 motion. When the court asked 

the Government’s attorney, George Martin, to speak about his § 5K1.1 motion, he 

responded, “Judge, I have set out the defendant’s cooperation in the motion. I 

won’t belabor those points. . . . [W]e would ask the Court to grant [the § 5K1.1] 

motion and sentence the defendant below the guideline range to a term of 

imprisonment of 60 months.” Doc. 28, at 7 (emphasis added). In so requesting, 

Martin appears to have recognized that 135 to 168 months remained the applicable 

Guidelines range. At this point, he made no reference to the fact that his § 5K1.1 

motion urged the court to create a new Guidelines range of 57 to 71 months.

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39

After a brief discussion regarding restitution, the court returned to the 

§ 5K1.1 motion:

THE COURT: The advisory guideline imprisonment range, as I 

previously stated, is between 135 months and 168 months. And the 

government is asking me based on substantial assistance to impose a 

sentence of 60 months. Correct; Mr. Martin?

MR. MARTIN: Based both on his substantial assistance and the [18 

U.S.C. §] 3553(a) [sentencing] factors.

THE COURT: I’m not supposed to mix those, am I, Mr. Martin?

MR. MARTIN: My recommendation of 60 months is based both on 

substantial assistance and a consideration of those factors, from my 

perspective. That is, considering the crimes that he committed on one 

hand and the other factors and, on the other hand, the assistance he 

gave to the government, we recommend and we think a reasonable 

sentence is 60 months under the totality of the circumstances.

THE COURT: Well, appropriately in your motion, . . . you don’t list 

any [§] 3553(a) factors. You only list [§] 5K1.1 factors. And it is my 

belief that it is inappropriate for me to consider an amount by which 

to downwardly depart based on substantial assistance any factors 

other than substantial assistance, including the government’s 

evaluation of the value of that substantial assistance. . . . I’m certain 

there’s binding Eleventh Circuit case law to that effect.

MR. MARTIN: Your honor—

THE COURT: I understand that your [§ 5K1.1] motion is different 

from your sentencing memorandum. You’re just asking me in your 

sentencing memorandum not to vary below what you asked me to do 

on your 5K.

MR. MARTIN: What I did is instead of filing one thing that asked 

the Court to sentence him to the low end of the guidelines and on the 

other had filing a document at the same time asking that you sentence 

him way below the bottom end of the guidelines, I filed documents as 

a complete package setting forth our recommendation . . . and our 

reasoning for that recommendation, including both the [§] 3553(a) 

Case: 11-13678 Date Filed: 08/12/2014 Page: 39 of 65 
40

factors and the defendant’s substantial assistance. In the sentencing 

memorandum, I make it clear that our 60-month recommendation is 

based on both of those things.

THE COURT: You do in your memorandum. I totally agree. Do you 

agree with me that the binding case law in the Eleventh Circuit is that 

in ruling on a motion for downward departure pursuant to [§] 5K1.1, it 

is error for a district court to consider anything other than the 

substantial assistance?

MR. MARTIN: Yes, Your Honor, I do.

Doc. 28, at 16–18 (emphasis added). 

Although this colloquy between the court and Martin is somewhat 

convoluted, it is clear that in filing what he called “a complete package,” Martin 

was providing the District Court with two alternative ways in which to give Hayes 

appropriate credit for his cooperation with the Government. The court could 

sentence Hayes “to the low end of the guidelines” or it could sentence him “way 

below the bottom end of the guidelines.” The first alternative would require the 

court to lower the Guidelines range to 57 to 71 months and sentence Hayes to the 

low end of that range, 60 months. The second alternative would require the court 

to adhere to the applicable Guidelines range, 135 to 168 months, and sentence 

Hayes “way below the bottom end of the guidelines” to 60 months. The colloquy 

also demonstrates that the court and Martin both recognized that a defendant’s 

substantial assistance is not relevant in deciding the need for a sentence to satisfy 

§ 3553(a)(2)’s sentencing objectives, i.e., the defendant’s substantial assistance 

cannot influence the offense level and the applicable Guidelines range. Rather, the 

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41

nature and circumstances of the offense and the need for the sentence to attain 

§ 3553(a)(2)’s objectives determine the offense level and Guidelines range. See 28 

U.S.C. § 994(a). Thus, in asking Hayes’s attorney, Derek Drennan, to comment on 

the Government’s § 5K1.1 motion, the court instructed him “to speak only to the 

issue of substantial assistance because it would be error for [the court] to consider 

any other factor” in ruling on the motion. Doc. 28, at 18. 

Drennan asked the court to grant the Government’s motion for the reasons 

stated in his Sentencing Memorandum. The court granted the motion, then asked 

Drennan, “[a]re you asking for a level of departure, or are you just asking that it be 

granted? Because it asks me to depart to 60 months.” Id. at 18–19. Drennan 

replied, “Yes. That is correct.” Id. at 19. Next, the court asked Drennan whether 

he thought 60 months’ imprisonment reflected the value of Hayes’s assistance. He 

responded, “[C]ertainly not. I don’t know that I have—can take a position as to the 

government’s motion.” Id.

The court, referring to the second of the two alternative ways Martin 

proposed for granting a § 5K1.1 departure, informed Drennan that “for the 

government to request a departure that’s greater than 50 percent is unusual, to say 

the least, in my experience. As a percentage, they’ve asked me to depart down a 

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42

lot more than I’m accustomed to seeing.” Doc. 28, at 19–20.16 As it turned out, 

the court did not depart from the applicable Guidelines range, 135 to 168 months. 

Instead, it adopted to Martin’s first alternative and created a brand-new offense 

level and arbitrary Guidelines range. In granting the Government’s § 5K1.1 

motion, the court explained:

[I]t comes down to my opinion as to the appropriate amount of a 

departure. And I have the government’s recommendation. And they 

do it by months or range when they – although they come up with an 

offense level. That’s certainly not required. What they do is they 

come up with a number of months, which 60 months is actually five 

years, but it’s all done in months. But that’s helpful because it also 

may impact the fine. To have an offense level is helpful. 

All right. Backing up, the Court finds that the government’s motion 

for a downward departure pursuant to [§] 5K1.1 based on the 

defendant’s substantial assistance to the government should be 

granted. The Court finds that the appropriate . . . guideline level for 

consideration should be Level 22, which when combined with the 

criminal history category of I creates an advisory guideline range of 

41 to 51 months and a fine range from $7,500 to $75,000.[17] And the 

supervised release term remains from two to three years.

In departing based on the government’s 5K motion, I discussed with 

and evaluated the significance and usefulness of the defendant’s 

assistance. And I discussed this both with the government and the 

defendant. And I considered both their writings and their statements 

here in court. And I specifically considered the government’s 

evaluation of the assistance rendered.

 16 Sixty months would be greater than a 50-percent departure from the applicable 

Guidelines range, 135 to 168 months, but not a departure at all from the 57- to 71-month range.

17 The District Court was incorrect to state that the new offense level would help with the 

fine. The fine remained tied to the original Guidelines range of 135 to 168 months and could not 

be reduced to the $7,500 to $75,000 range based on substantial assistance.

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43

And I’ve talked about giving more weight versus less weight and how 

I agree with the government in giving more weight. It’s just that I am 

giving even more weight than the government gave on all these 

factors. And I’ve already said that a request for a departure that’s 

below 50 percent is unusual in my experience—my seven years[’] 

experience. 

I considered the truthfulness, the completeness and the reliability of 

the information and testimony provided by the defendant. I 

considered the nature and extent of the defendant’s assistance and this 

includes the fact that he identified a totally new target, Mr. Phillip 

Grace. He testified at least twice. The number of people who were 

convicted or pled guilty at least in part because of his testimony or 

willingness to testify and the number of hours he participated in 

meetings. The number of times he met with the government. His 

willingness to testify against targets of a state prosecution.

Doc. 28, at 24–26 (emphasis added). 

As is apparent, the District Court’s creation of a new offense level and 

applicable Guideline range was based solely on Hayes’s substantial assistance, but 

the court did not explain how that assistance warranted the new range, a new 

“starting point and . . . initial benchmark” for fashioning Hayes’s sentence. See

Gall, 522 U.S. at 49, 128 S. Ct. at 596. The Government did not object to the 

District Court’s creating a new offense level and applicable Guidelines range 

because its § 5K1.1 motion had induced the court to do precisely that. With a new 

Guidelines range, 41 to 51 months, the court, at the Government’s behest, 

abandoned the “applicable Guidelines range,” id., which was supposed to “anchor 

. . . the district court’s discretion” in selecting a final sentence, Peugh, ___ U.S. at 

___, 133 S. Ct. at 2087.

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44

3.

The third and final step of the sentencing process prescribed by Gall

required the District Court to “consider all of the § 3553(a) factors to determine 

whether they support the sentence requested by a party.”18 Gall, 552 U.S. at 49–

50, 128 S. Ct. at 596. “[D]istrict courts must begin their analysis with the 

Guidelines and remain cognizant of them throughout the sentencing process.” Id.

at 50 n.6, 128 S. Ct. at 597 n.6. In considering these § 3553(a) factors, the court 

may conclude that there are other characteristics of the crime, the defendant, or the 

victims that are not accounted for by the Guidelines—that take the case out of the 

“heartland” of cases the Sentencing Commission drew on in prescribing the 

applicable Guidelines range.19 In that situation, the court can impose a sentence 

outside of the Guidelines framework—in Guidelines parlance, a “variance.” 

U.S.S.G. § 1B1.1, background. 

However, if the court wishes to sentence the defendant outside the 

applicable advisory Guidelines range, whether via departure or variance, it “must 

consider the extent of the deviation [from the Guidelines range] and ensure that the 

justification is sufficiently compelling to support the degree of the variance. . . . 

 18 In practice, this step requires the parties to justify their proposed sentences in light of 

§ 3553(a). When it comes time to impose a final sentence, however, the judge is required to 

show how the sentence is consistent with the § 3553(a) factors.

19 “The [Sentencing] Commission intends sentencing courts as to treat each guideline as 

carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline 

describes.” U.S.S.G. Ch. 1 Pt. A, introductory cmt. 4(b).

Case: 11-13678 Date Filed: 08/12/2014 Page: 44 of 65 
45

[A] major departure should be supported by a more significant justification than a 

minor one.” Gall, 552 U.S. at 50, 128 S. Ct. at 597.20 “Even if the sentencing 

judge sees a reason to vary from the Guidelines, if the judge uses the sentencing 

range as the beginning point to explain the decision to deviate from it, then the 

Guidelines are in a real sense the basis for the sentence.” Peugh, ___ U.S. at ___, 

133 S. Ct. at 2083 (emphasis added) (internal quotation marks omitted).

In this case, the District Court should have begun with the admittedly correct 

Guidelines range, 135 to 168 months, and then, with that range in mind, considered 

whether the § 3553(a)(2)(A) and (B) sentencing objectives could accommodate the 

parties’ requested sentences. Instead, the court adopted the Government’s first 

alternative suggestion; it used an arbitrary Guidelines range and considered the 

parties’ sentencing recommendations against that range. When the sentencing 

hearing resumed on July 13, 2011,21 the court adhered to that approach, but, as the 

hearing unfolded, it did not adopt the Government’s recommendation to impose a 

sentence within the 57- to 71-month range. 

The court began by reminding the parties that 

 20 In Gall, the Supreme Court did not distinguish between variances and departures, 

which leads me to believe it was using the terms as synonyms. See Thomas W. Hutchison, et al., 

Federal Sentencing Law and Practice § 11.5 (2014 ed.) (reaching the same conclusion).

21 The June 8 hearing was continued until an issue regarding restitution could be resolved. 

At the July hearing, Martin announced that he and Drennan agreed that Hayes would pay 

restitution in the sum of $628,454.28.

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46

in granting the motion for a downward departure pursuant to 

[§] 5K1.1 based on the defendant’s substantial assistance to the 

government, I found that the appropriate guideline level for 

consideration should be Level 22, which when combined with a 

criminal history category I creates an advisory guideline range of 41 

months to 51 months and a fine range from $7,500 to $75,000 and a 

supervised release term of two to three years.

Doc. 29, at 10 (emphasis added). This statement confirmed that the court’s factual 

basis for creating the new Guidelines range was limited to Hayes’s substantial 

assistance. The Government did not object to the court’s adoption of the 41- to 51-

month range, even though it had no legal foundation, because the Government had 

urged the court to adopt a new Guidelines range in the first place. 

Having established 41 to 51 months as the “starting point and the initial 

benchmark” for determining the defendant’s sentence, see Gall, 522 U.S. at 49, 

128 S. Ct. at 596, the court invited Drennan to discuss whether it should vary 

downward from that range. Drennan began by discussing the § 3553(a)(2)(A) 

factor, urging the court to consider that the colleges that bought Access’s software 

were still using it, and thus had sustained no loss, and the relative culpability of 

Hayes and Johnson, who instigated the criminal conduct. He then turned to the 

§ 3553(a)(2)(C)–(D) factors, highlighting that Hayes had been the main caretaker 

of his elderly father and mentally disabled brother, both since deceased, after the 

prior caretaker, Hayes’s sister, was killed in a tornado that struck their residence; 

that Hayes was in poor health and nearly seventy; and that Hayes was not a risk to 

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47

society and thus did not need rehabilitation. Hayes followed Drennan, apologized 

for participating in the bribery scheme, promised to satisfy his restitution and 

forfeiture obligations, and vowed to rehabilitate himself. These factors, which 

were unrelated to Hayes’s substantial assistance, were appropriate for the court to 

consider when determining whether to grant a variance.

Martin spoke next and argued that “[t]he Court’s sentence should be one that 

punishes the defendant for this conduct. And it should be a sentence that deters 

others from engaging in such conduct.” Doc. 29, at 17–18. He concluded his 

argument by stating, 

[A]s I stated at the first part of this sentencing hearing held last month, 

the government, based on all the factors, believed that a sentence of 

60 months was a reasonable sentence. That is over 50 percent below 

the low end of the guideline range. And nothing has changed that 

since then to warrant a different recommendation. It was reasonable 

then. It’s reasonable now.

Id. at 21. 

Turning to Martin’s argument that the defendant’s sentence should reflect 

the need for punishment and deterrence, the court said, 

I don’t have any issues with your arguments that the defendant needs 

to be punished. And I don’t have any issues with the government’s 

arguments that people need to be deterred from committing white 

collar crimes and that sending them to jail is a strong deterrent to 

others and punishment to the person being sentenced. 

What I don’t have and I didn’t ask for it, but maybe probation has, is 

because I do think one of the very, very significant things to consider 

in sentencing—all the [§] 3553(a) factors are important. And I feel 

Case: 11-13678 Date Filed: 08/12/2014 Page: 47 of 65 
48

like I have good information on all of the factors except the one about 

unwarranted sentence disparities among defendants.

Id. at 23.

The court then asked the probation officer, who was attending the hearing, 

about the sentences imposed on others member of the bribery scheme who had 

been convicted and sentenced. After she directed the court to the relevant portion 

of the PSI, which listed the sentences these other participants received, the court 

read into the record the sentence imposed in twelve of the cases, noting that five 

were probation and three were greater than 60 months’ imprisonment. The 

probation officer then directed the judge to a chart, which was not included in the 

PSI and which provided more information about those sentences. The chart listed 

two additional participants in the scheme, both of whom were sentenced to 

probation, as well as information for all fourteen participants regarding the crimes 

with which they were charged, the amount of loss attributed to each, the advisory 

Guidelines range in each case, and whether they pled guilty or were convicted.

After stating that the sentences the other participants received were relevant 

to § 3553(a)(6)’s command to avoid unwarranted sentence disparity, the court 

turned to the § 3553(a)(1) and (2)(A) and (B) factors: “the nature and 

circumstances of the offense,” “this defendant’s history and characteristics,” the 

need for “a sentence [that] promote[s] respect for the law and provide[s] just 

punishment for the offense,” “the need to afford adequate deterrence to criminal 

Case: 11-13678 Date Filed: 08/12/2014 Page: 48 of 65 
49

conduct by others,” and the need for “punishment that would deter other people 

who might consider similar conduct from committing that conduct.” Doc. 29, at 

29–30. Regarding the § 3553(a)(2)(C) factor, the need for a sentence to deter the 

defendant from committing further crime, the court found that “this defendant does 

not pose any risk of further crimes to the public.” Doc. 29, at 30. After 

commenting on these § 3553(a) factors, the court returned to “the need to avoid 

unwarranted sentence disparities among similarly situated defendant” but said, “I 

don’t want anybody to think that that was . . . the overwhelming factor.” Doc. 29, 

at 31–32. 

Having considered the § 3553(a) factors, the court granted Hayes a 

downward variance from the 41- to 51-month Guidelines range and sentenced him 

to probation for a term of 36 months, with not less than 6 nor more than 12 months 

home supervision.22 The court found that “the sentence imposed is sufficient, but 

not greater than necessary to comply with the statutory purposes of sentencing and 

is reasonable when considering the sentencing factors found at 18 U.S.C. Section 

3553(a).” Doc. 29, at 33.

C.

To summarize, the parties began the sentencing process by stipulating to the 

PSI’s finding that the appropriate offense level in this case was 33 and that the 

 22 The court ordered Hayes to pay $628,454.28 with interest in restitution to the ADPE, 

payable immediately, and criminal forfeiture as to Count Three.

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50

criminal history category was I. They agreed that the correct and therefore 

applicable Guidelines range was 135 to 168 months. The District Court accepted 

the PSI factual findings and Guidelines applications. In doing so, the court 

adhered to the Supreme Court’s instructions in Gall—that the first step in 

sentencing is to determine the applicable Guidelines range.

Then, the Government presented the court with two alternative approaches 

to use in determining Hayes’s sentence, both based on his substantial assistance. 

First, it could lower the offense level from 33 to 25, adopt a new Guidelines range 

of 57 to 71 months, and impose a sentence within that range, 60 months. Or it 

could depart from the applicable Guidelines range, 135 to 168 months, and impose 

a sentence of 60 months. The court adopted the Government’s first approach but 

lowered the offense level to 22 and the applicable Guidelines range to 41 to 51 

months. In doing this, the court committed procedural error. See Gall, 552 U.S. at 

51, 128 S. Ct. at 597. The court then compounded the error by treating the 41 to 

51 months range as if it were based on the facts of the case and, after considering 

§ 3553(a)(2)(C) and (D)’s sentencing factors, concluding that a downward variance 

to a sentence of probation was warranted. 

III.

After the District Court pronounced sentence, the Government objected “to 

the procedural reasonableness of the sentence and to the substantive 

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51

reasonableness of the sentence, including the extent of [the] Court’s downward 

departure pursuant to 5K and the reasonableness of the Court’s final sentence.” 

Doc. 29, at 35. On appeal, however, the Government reframes its objection. It 

abandons the procedural-reasonableness objection and “does not challenge the 

district court’s § 5K1.1 downward departure to a Guidelines range of 41-51 

months.” Appellant’s Br. at 11 n.3. It does so even though that Guidelines range is 

purely arbitrary and therefore erroneous. The Government then limits it challenge 

to the substantive reasonableness of the sentence on the ground that the downward 

variance from the 41- to 51-month range to a sentence of probation fails to reflect 

the seriousness of Hayes’s crime, does not adequately deter the general public from 

engaging in such crime, and is not justified by the need to avoid unwarranted 

sentencing disparities.23

 23 The Government’s appeal is authorized by 18 U.S.C. § 3742(b). That section provides 

as follows: 

(b) Appeal by the Government.--The Government may file a notice of appeal in 

the district court for review of an otherwise final sentence if the sentence--

(1) was imposed in violation of law; 

(2) was imposed as a result of an incorrect application of the sentencing 

guidelines; 

(3) is less than the sentence specified in the applicable guideline range to the 

extent that the sentence includes a lesser fine or term of imprisonment, probation, 

or supervised release than the minimum established in the guideline range, or 

includes a less limiting condition of probation or supervised release under section 

3563(b)(6) or (b)(11) than the minimum established in the guideline range; or 

(4) was imposed for an offense for which there is no sentencing guideline and is 

plainly unreasonable. 

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52

As it did in the District Court, the Government invites us to disregard the 

Supreme Court’s instructions on the sequential steps a district court is to take in 

imposing a sentence under the Guidelines and the sequential steps a court of

appeals is to take in reviewing the sentence. By framing its appeal as a challenge 

solely to the substantive reasonableness of Hayes’s sentence, the Government asks 

that we disregard Gall’s instruction that a court of appeals may not assess the 

substantive reasonableness of a sentence unless it first concludes that the sentence 

is procedurally reasonable. See 552 U.S. at 51, 128 S. Ct. at 597. The 

Government ignores the fact that even though it does not challenge the procedure 

by which Hayes was sentenced, the Supreme Court requires that we must satisfy 

ourselves that no procedural error occurred. 

 

The Government may not further prosecute such appeal without the personal 

approval of the Attorney General, the Solicitor General, or a deputy solicitor 

general designated by the Solicitor General.

§ 3742(b) (emphasis added). The Government’s brief does not indicate which of the four 

grounds for appeal it is relying on here. The objection the Government voiced following the 

District Court’s imposition of sentence implied that it would appeal Hayes’s sentence on ground 

(2), because, as I explain, procedural error is manifestly present. Ground (4) is clearly 

inapplicable, and from a reading of its brief, I conclude that it is not relying on ground (1). That 

leaves ground (3). 

Ground (3) implies that the district court properly applied the Guidelines, and thus 

arrived at the appropriate applicable Guidelines range. The Government’s position is that the 

District Court properly applied the Guidelines and correctly arrived at the applicable Guidelines 

range. So, to maintain this appeal, the Government must establish that Hayes’s sentence of 

probation is a “lesser term of imprisonment . . . than the minimum established by the guideline 

range.” Hayes has not raised the question of whether a sentence of probation is a term of 

imprisonment; neither has this panel. Consequently, I do not address it. 

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53

It is obvious to me that procedural error did occur. The District Court used 

an arbitrary Guidelines range as its Gall “starting point and . . . initial benchmark” 

in arriving at Hayes’s sentence. See id. at 49, 128 S. Ct. at 596. Therefore, we 

may not review the substantive reasonableness of his sentence. Instead, we must 

vacate the sentence and remand the case for resentencing under the applicable 

Guidelines range, 135 to 168 months. The invited error doctrine precludes us from 

doing this, however, because the Government induced the error the District Court 

committed. 

A.

As the Supreme Court has instructed, a court of appeals’ review of a 

criminal sentence is a two-step process. First it must “ensure that the district court 

committed no significant procedural error, such as failing to calculate (or 

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, 

failing to consider the § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 

U.S. at 51, 128 S. Ct. at 597.24 Only then, after the court of appeals is certain that 

that no significant procedural error has occurred, can it turn to the substantive 

reasonableness of the sentence. Id. That is, the substantive reasonableness inquiry 

 24 We assume that the Gall Court, in using the term “significant procedural error,” meant 

error that materially affected the defendant’s sentence. The procedural error I refer to in this 

opinion is significant and thus material. 

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“[a]ssum[es] that the district court’s sentencing decision is procedurally sound.” 

Id. If the sentencing decision is not procedurally sound, it cannot be reviewed for 

substantive unreasonableness. 25

We have recognized as much. For instance, in United States v. Barner, 572 

F.3d 1239 (11th Cir. 2009), we declined to discuss the substantive reasonableness 

of a sentence “because such an exercise cannot be undertaken until [the procedural] 

errors we have identified are addressed by the district court.” Id. at 1253 (citing 

Gall, 552 U.S. at 51, 128 S. Ct. at 597). Cf. Gupta, 572 F.3d at 888 (“Because we 

conclude that a remand is necessary to correct procedural errors, we decline to 

evaluate the substantive reasonableness of Gupta’s sentence. We do not know 

what sentence the district court will impose on remand. Thus, we would be 

rendering an advisory opinion if we were to pick a sentence and declare it to be 

 25 The majority justifies its decision not assess the procedural reasonableness of Hayes’s 

sentence—and to limit its review to the substantive reasonableness of the sentence—based in 

part on settled Eleventh Circuit precedent that “we do not have a duty to raise and decide 

issues—even constitutional ones—not mentioned by the parties.” Maj. Op. at 22. If this were an 

ordinary appeal, I would agree that the court should invoke that doctrine. But this is not an 

ordinary appeal.

Just as a sentencing court is not bound by the parties’ framing of the Guidelines range in 

a plea bargain or at sentencing because the court “has an independent obligation to calculate 

correctly the sentencing range prescribed by the Guidelines,” United States v. Aguilar-Ibarra, 

740 F.3d 587, 591 (11th Cir. 2014) (internal quotation marks omitted), a court of appeals 

cannot—consistent with Gall—engage in substantive review without first ensuring the sentence 

is procedurally reasonable.

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55

reasonable.” (citation omitted) (internal quotation marks omitted)).26 Other circuits 

follow a similar approach. See, e.g., United States v. Carter, 564 F.3d 325, 330 n.4 

(4th Cir. 2009) (“Having found the sentence procedurally unreasonable . . . we 

cannot review the sentence for substantive reasonableness.”); United States v. 

Stephens, 549 F.3d 459, 465 (6th Cir. 2008) (“If, and only if, the district court’s 

sentencing decision is procedurally sound, we will then consider the substantive 

reasonableness of the sentence imposed . . . .”) (internal quotation mark omitted)); 

United States v. Langford, 516 F.3d 205, 218 (3d Cir. 2008) (“[T]he failure to start 

with the correct Guideline range is legal error that thwarts reasonableness review—

that is, it cuts off our review process before we even reach the issue of 

reasonableness.”).27 

It is only after the court of appeals is satisfied the district court correctly 

calculated the Guidelines range and did not otherwise commit procedural error that 

it can “consider the substantive reasonableness of the sentence imposed under an 

abuse-of-discretion standard.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. The court 

of appeals needs an accurate Guidelines range because “[w]hen conducting this 

review, the court will, of course, take into account the totality of the circumstances, 

 26 Declaring that a sentence is substantively unreasonable after finding significant 

procedural error is to render an advisory opinion because the district court, on remand will be 

resentencing the defendant under a new Guidelines range, a new benchmark. 

27 That the cases cited above included challenges to both the procedural and substantive 

reasonableness of the sentence does not undermine the broader logic in each case that 

substantive-reasonableness analysis is impossible without procedural reasonableness.

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56

including the extent of any variance from the Guidelines range.” Id. (emphasis 

added). If the district court imposes a sentence below the applicable Guidelines 

range, the reviewing court “must give due deference to the district court’s decision 

that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. 

When evaluating the district court’s weighing of the § 3553(a) factors, the 

reviewing court is “obliged to remand for resentencing if [it is] left with the 

definite and firm conviction that the district court committed a clear error of 

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies 

outside the range of reasonable sentences dictated by the facts of the case.” United 

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal quotation marks 

omitted); see also United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en 

banc).

B.

The District Court in this case committed clear procedural error by lowering 

the Guidelines range to 41 to 51 months based on Hayes’s cooperation with the 

Government. Congress precluded the Sentencing Commission—in prescribing, in 

conformance with 28 U.S.C. § 994, the offense level for Hayes’s offenses—and 

the District Court—in determining, in conformance with § 3553(a)(2)(A) and (B), 

the need for Hayes’s sentence to satisfy the sentencing objectives of punishment 

and general deterrence—from considering substantial assistance provided to the 

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57

Government. Because the District Court lowered Hayes’s offense level based on 

substantial assistance alone, it created a Guidelines range, 41 to 51 months, that 

lacked a legal foundation and was therefore arbitrary. The Government did not 

object because it encouraged the court to do this; after all, the Guidelines range it 

wanted the court to adopt, 57 to 71 months, was just as lacking in a legal 

foundation as the one the court ultimately chose. In asking this court to assess the 

substantive reasonableness of Hayes’s sentence, the Government is asking this 

court to review a sentence imposed without reference to the Guidelines. Reference 

to the applicable Guidelines range is unnecessary, the Government implies, 

because anyone with a conscience would know that a sentence of probation for the 

widespread bribery that occurred in this case in would be preposterous. 

We cannot accept the Government’s request and at the same time obey the 

Supreme Court’s mandate in Gall. Gall precludes us from reviewing the 

substantive reasonableness of a sentence imposed without reference to the 

applicable Guidelines range. A sentence imposed without reference to that range is 

procedurally unreasonable. And a finding of procedural reasonableness is a 

necessary antecedent to substantive reasonableness. See Gall 552 U.S. at 51, 128 

S. Ct. at 597; Barner, 572 F.3d at 1253.

This, of course, makes sense. If a district court imposes sentence without 

reference to a properly calculated Guidelines range, we lack an accurate 

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benchmark from which to evaluate its substantive reasonableness. “[S]entencing 

decisions are anchored by the Guidelines and . . . they remain a meaningful 

benchmark through the process of appellate review.” Peugh, ___ U.S. at ___, 133 

S. Ct. at 2083; see also Gall, 552 U.S. at 50 n.6, 128 S. Ct. 597 n.6 (“The fact that 

§ 3553(a) explicitly directs sentencing courts to consider the Guidelines supports 

the premise that district courts must begin their analysis with the Guidelines and 

remain cognizant of them throughout the sentencing process.”). As Gall directs, 

the substantive-reasonableness analysis must “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 (emphasis added). As such, we should 

consider the substantive reasonableness of a sentence only “after [we have] 

determined that the district court’s sentencing decision is procedurally sound.” 

Pugh, 515 F.3d at 1190 (internal quotation marks omitted) (emphasis added). It is 

for this reason that this court and other courts of appeals will not evaluate the 

substantive reasonableness of a sentence in the face of significant procedural error. 

See, e.g., Barner, 572 F.3d at 1253; United States v. Carter, 564 F.3d 325, 330 n.4 

(4th Cir. 2009); United States v. Stephens, 549 F.3d 459, 465 (6th Cir. 2008); 

United States v. Langford, 516 F.3d 205, 218 (3d Cir. 2008).

In the face of “significant procedural error,” Gall, 552 U.S. at 51, 128 S. Ct. 

at 597, such as occurred here in the District Court’s use of an arbitrary Guidelines 

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range, our normal response would be to vacate the sentence and remand the case 

for further proceedings. However, the invited error doctrine precludes us from 

doing that.

C.

In moving the District Court to decrease Hayes’s offense level from 33 to 25 

and to adopt a Guidelines range of 57 to 71 months based solely on an irrelevant 

criterion, substantial assistance, the Government brought the District Court’s 

procedural error on itself. To be sure, the range the court eventually chose wasn’t 

the one the Government proposed, but it was just as inappropriate as the 

Government’s. Both ranges reflected an intuitive reaction to Hayes’s cooperation; 

the District Court simply thought his cooperation was deserving of a bit more grace 

than the Government recommended. In the end, the Government accepts the 

court’s range without qualification. Appellant’s Br. at 11 n.3 (“The government 

calculates the size of the variance as 41 months because it does not challenge the 

district court’s § 5K1.1 downward departure to a Guidelines range of 41 to 51 

months.”). And today, this court does as well. 

In inviting the District Court to accept 41 to 51 months as the applicable 

Guidelines range, the Government also invited the District Court to depart or vary 

downward from that range for reasons unrelated to § 5K1.1 substantial assistance. 

The court could do this based on evidence indicating that a sentence in the 41 to 51 

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months range was not needed to satisfy § 3553(a)(2)(A) and (B)’s purposes of 

punishment and general deterrence.28 At the end of the day, the court accepted the 

Government’s invitation and imposed a sentence of probation. 

Although Hayes’s sentence is the product of procedural error that is plain on 

its face, we are not at liberty to correct the error. As we have explained countless 

times before, “[i]t is a cardinal rule of appellate review that a party may not 

challenge as error a ruling . . . invited by that party. The doctrine of invited error is 

implicated when a party induces or invites the district court into making an error.”

United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (citations omitted) 

(internal quotation marks omitted); see also United States v. Silvestri, 409 F.3d 

1311, 1327 (11th Cir. 2005); Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 

1294 (11th Cir. 2002). The doctrine of invited error “stems from the common 

sense view that where a party invites the trial court to commit error, he cannot later 

cry foul on appeal.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 

2009). 

 28 The problem the court would face, though, is that the 41 to 51 months range does not 

represent the facts and circumstances surrounding Hayes’s commission of the bribery in this 

case. Offense level 22, which drives the 41 to 51 months range, assumes that Hayes’s profits and 

the victims’ losses were between $10,000 and $30,000. See U.S.S.G. § 2B1.1(b)(1)(C). It is a 

false assumption, however, because the facts are that Hayes’s profits were $5 million and the 

victims lost $2.4 million. According to the Sentencing Commission, these facts, which the 

parties and the District Court accepted as true, revealed that a sentence in the range of 135 to 168 

months, based on an offense level of 33, was necessary in order to satisfy § 3553(a)(2)(A) and 

(B)’s sentencing objectives.

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In the mine-run appeal, we would vacate the sentence and remand the case 

to the district court for resentencing. Here, we would instruct the court to follow 

Gall’s instruction and, in determining the extent of the § 5K1.1 departure from the 

applicable Guidelines range, 135 to 168 months, “consider all of the § 3553(a) 

factors to determine whether they support the sentence requested.” 522 U.S. at 49–

50, 128 S. Ct. at 596.29 In this case, however, we cannot remedy the procedural 

error because it was invited by the party seeking to challenge the sentence, the 

Government. 

I say that the invited error doctrine applies even in a case where the 

defendant’s sentence is as absurd as the one here. The majority vacates the 

sentence in this case because the facts and circumstances surrounding the 

commission of Hayes’s crime demand a sentence far more serious than the one he 

received. Over a period of four years, Hayes’s bribes netted him over $5 million in 

profits and caused the victims to suffer losses of $2.4 million. To the citizens of 

Alabama aware of the magnitude of Hayes’s crime, a sentence of probation is 

outlandish, a mere slap on the wrist. 

Applying the invited error doctrine and allowing Hayes’s sentence of 

probation to stand would breed disrespect for the rule of law in many quarters. 

Disrespect for the rule of law and the damage to the body politic that portends 

 29 The same instruction would govern the court’s consideration of a party’s request for a 

variance from the applicable Guidelines range.

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weigh heavily on one side of the scales of justice. However, the policies the 

invited error doctrine reflects weigh just as heavily on the other side of the scales. 

And they are several. I have already mentioned one: the doctrine vindicates 

respect for the courts by preventing “sandbagging” and “gamesmanship,” where a 

party gets a second bite of the apple at his adversary’s expense, and at the public’s 

expense as well. The public suffers because, without the doctrine, the courts’ 

dockets would become overcrowded, the cases of those standing in the queue 

waiting to be heard would be delayed, and the public’s respect for the courts would 

wane. Justice delayed is justice denied. 

In seeking the vacation of Hayes’s sentence, the Government is gaming the 

system. But in a larger sense, it is obstructing the administration of justice in the 

Eleventh Circuit. Therefore, invoking the invited error doctrine, I would affirm 

Hayes’s sentence. 

IV.

The court entertained this appeal as the Government’s brief requested. That 

is, it sidestepped the issue of whether the Hayes’s sentence is procedurally 

unreasonable and went straight to the issue of whether the sentence is substantively 

unreasonable. In doing so, the court purports to accept the statement in the 

Government’s brief, that it “does not challenge the district court’s § 5K1.1 

downward departure to a Guidelines range of 41-51 months.” Appellant Br. 11 

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n.3. I say that the court purports to do this because it is apparent to me that it finds 

Hayes’s sentence of probation substantively unreasonable not because it constitutes 

an unreasonable variance from a Guideline range of 41 to 51 months, but because 

it is an unreasonable departure from the applicable Guidelines range of 135 to 168 

months. The court reveals this in the following passage of its opinion, which 

describes the criminal activity the 135- to 158-month range reflects. 

But there are bribes, and then there are bribes. Mr. Hayes did not just 

give a one-time gratuity to a local zoning inspector to expedite a 

building permit for a pool. He paid over half a million dollars in 

bribes, over a four-year period, to a high-ranking Alabama official so 

that his company could continue to receive lucrative government 

contracts—efforts which were rewarded by a corporate bottom line 

that got fatter by $5 million—and for that he received probation. As 

corruption cases go, this was bribery writ large, and on this record the 

district court’s significant variance of 41-51 months cannot stand. 

Ante at 18. 

In short, the court should have focused on Gall’s third step, which required 

the District Court to “consider all of the § 3553(a) factors” in light of the correct 

Guidelines range, 135 to 168 months, “to determine whether they support[ed] the 

sentence requested by” Hayes—specifically, the sentence it ultimately imposed, 

probation. See Gall, 552 U.S. at 49–50, 128 S. Ct. at 596. After this, the court 

should have asked whether the District Court “adequately explain[ed]” how a 

sentence of probation squared with the need for Hayes’s sentence to provide just 

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punishment and to deter others from emulating his criminal conduct. Id. at 50, 128 

S. Ct. at 597. 

Putting this aside, I am concerned about the court’s mandate. What 

instruction does it give the District Court? Section 3742 of Title 18 of the U.S. 

Code states, in pertinent part, that 

If the court of appeals determines that—

. . .

(2) the sentence is outside the applicable guideline range and . . . the 

departure is . . . plainly unreasonable, it shall state specific reasons for 

its conclusions and—

. . .

(B) if it determines that the sentence is too low . . ., it shall set aside 

the sentence and remand the case for further sentencing proceedings 

with such instructions as the court considers appropriate, subject to 

subsection (g).

18 U.S.C. § 3742(f)(2). Subsection (g) states that “[a] district court to which a case 

is remanded pursuant to subsection . . . (f)(2) shall resentence a defendant in 

accordance with section 3553 and with such instructions as may have been given 

by the court of appeals.” § 3742(g).

I suggest that the court’s mandate tells the District Court that a sentence of 

probation on the facts stated in the PSI is substantively unreasonable as a matter of 

law. The court’s reliance on those facts, as opposed to hypothetical facts that 

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would support a Guidelines range of 41 to 51 months,30 indicates that the 

applicable Guidelines range is 135 to 168 months. 

I return to what I state in the introduction to this opinion: the invited error 

doctrine requires that the judgment of the District Court be affirmed.

 30 By conceding that the District Court’s use of the 41- to 51-month range was correct, 

the Government implicitly takes the position that the facts of Hayes’s case support the 41 to 51 

months range.

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