Acquitted Conduct May Support a § 3553(a) Upward Variance Within the Statutory Maximum Despite U.S.S.G. § 1B1.3(c) (2024)

Introduction

In United States v. Keith Pharms (11th Cir. Feb. 5, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed a 192-month sentence imposed after a jury convicted Keith Pharms (“Pharms”) of five federal offenses arising from a stolen-car episode that culminated in gunfire at a vehicle occupied by an Atlanta Police Department sergeant who was also an FBI Task Force Officer, and from contraband-related conduct while Pharms was in custody.

The central appellate issues were (1) whether the district court violated the Sixth Amendment and the Fifth Amendment Due Process Clause by varying upward based on “acquitted conduct” (the jury answered “no” to a special interrogatory asking whether the firearm was discharged as to Count 2), and (2) whether the sentence was procedurally unreasonable because the finding that Pharms was the shooter was clearly erroneous.

The panel’s most practically significant clarification concerns the interaction between acquitted-conduct sentencing doctrine and the post-2024 Guidelines amendment, U.S.S.G. § 1B1.3(c), which restricts acquitted conduct in Guidelines calculations but (as the panel framed it) does not constrain a court’s independent 18 U.S.C. § 3553(a) sentencing discretion.

Summary of the Opinion

  • Constitutional holdings: The Eleventh Circuit held that the district court did not violate the Sixth Amendment or Fifth Amendment by varying upward based on conduct the jury did not find beyond a reasonable doubt, so long as (a) the conduct was found by a preponderance of the evidence and (b) the ultimate sentence did not exceed the statutory maximum authorized by the jury’s verdict.
  • Guidelines amendment: The panel acknowledged the 2024 amendment to U.S.S.G. § 1B1.3(c), noted that its impact on Eleventh Circuit precedent was “yet to be determined,” but concluded it did not matter here because the district court’s upward movement was grounded in § 3553(a) discretion rather than a barred Guidelines “relevant conduct” calculation.
  • Procedural reasonableness: The court held the district court did not clearly err in finding Pharms was the shooter, relying on trial testimony, corroborating circumstances, and permissible inferences.

The judgment was AFFIRMED.

Analysis

Precedents Cited

1) Governing acquitted-conduct sentencing rule in the Eleventh Circuit

The decision is anchored in the Eleventh Circuit’s long-standing acquitted-conduct jurisprudence:

  • United States v. Watts, 519 U.S. 148 (1997): Quoted for the proposition that an acquittal does not constitute a factual finding; it reflects only the government’s failure to prove guilt beyond a reasonable doubt. The panel relied on Watts to justify the doctrinal separation between the trial burden and the sentencing burden.
  • United States v. Faust, 456 F.3d 1342 (11th Cir. 2006): Treated as a central circuit statement that, in an advisory-Guidelines regime, a court may consider acquitted conduct if proved by a preponderance and the sentence remains below the maximum authorized by the jury verdict. Faust supplies the “within-statutory-maximum” limiting principle repeatedly invoked in the opinion.
  • United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015): Cited both for the permissibility of considering acquitted conduct as “relevant conduct” and for the proposition that an acquittal does not mean innocence “of any particular aspect” of charged conduct. Maddox also supports deference to credibility determinations at sentencing.
  • United States v. Rushin, 844 F.3d 933 (11th Cir. 2016): Cited as another reaffirmation of the acquitted-conduct rule against Sixth Amendment challenge.
  • United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005): Particularly relevant because it involved a jury’s special verdict; the panel used it to show that even where a jury expressly rejects a sentencing-related fact, the district court may find the fact by a preponderance for sentencing purposes.
  • United States v. Smith, 741 F.3d 1211 (11th Cir. 2013): Cited as part of the consistent line of authority approving acquitted-conduct consideration.

2) Apprendi-line cases and the “statutory maximum” boundary

Pharms invoked the Apprendi line to argue that jury rejection of “discharge” should constrain sentencing. The panel answered by distinguishing facts that raise the statutory maximum from facts used to choose a sentence within that range:

  • Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005): Treated as establishing the jury-trial requirement only for facts that increase the punishment beyond the maximum authorized by the jury verdict (or otherwise raise the legally available ceiling). The panel quoted Booker for the proposition that judges retain “broad discretion” to select a sentence within a statutory range.

Applying that framework, the panel emphasized that Pharms’ 192-month sentence was below the 240-month statutory maximum for assault on a federal officer using a deadly and dangerous weapon. Because the court remained within that authorized range, the panel held the Apprendi line did not require jury findings on the sentencing fact.

3) Due process and the preponderance standard

  • In re Winship, 397 U.S. 358 (1970): Invoked by Pharms for the beyond-a-reasonable-doubt requirement at trial, but the panel treated it as not displacing established sentencing standards where the sentence remains within the authorized range.
  • United States v. Culver, 598 F.3d 740 (11th Cir. 2010): Quoted (via United States v. Touray, 151 F.4th 1317 (11th Cir. 2025)) for the rule that considering acquitted conduct does not violate the Fifth or Sixth Amendments if the sentence does not exceed what the jury verdict authorizes and is supported by a preponderance.
  • United States v. Clay, 483 F.3d 739 (11th Cir. 2007): Used to reject the due process argument, while acknowledging (as Clay did) that “extreme circumstances” might pose a due process issue. The panel held Pharms’ circumstances were not “extraordinary.”
  • Townsend v. Burke, 334 U.S. 736 (1948): Distinguished; Townsend involved sentencing on materially false premises without counsel, while here the findings were supported by trial evidence under the correct standard.

4) The 2024 Guidelines amendment and non-Eleventh Circuit persuasive authority

The panel noted the new text of U.S.S.G. § 1B1.3(c) (effective Nov. 1, 2024), limiting acquitted-conduct inclusion in “relevant conduct” for Guidelines calculations. It then relied on:

  • United States v. Touray, 151 F.4th 1317 (11th Cir. 2025): Cited for declining to address the amendment’s effect when it was not yet effective at the time of the sentencing.
  • United States v. Romeu, 2026 WL 36113 (11th Cir. Jan. 6, 2026): Cited for the proposition that the amendment “has not been made retroactive.”
  • United States v. Ware, 141 F.4th 970 (8th Cir. 2025), and United States v. Ralston, 110 F.4th 909 (6th Cir. 2024): Cited for the distinction that even if the Guidelines calculation cannot use acquitted conduct under § 1B1.3(c), a court may still consider it under § 3553(a) when imposing sentence.

Finally, in responding to policy criticisms, the panel invoked the Eleventh Circuit’s prior-precedent rule via Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy County, 59 F.4th 1158 (11th Cir. 2023).

5) Standards of review and factfinding deference

  • United States v. Pope, 461 F.3d 1331 (11th Cir. 2006): De novo review for constitutional sentencing challenges.
  • United States v. Gyetvay, 149 F.4th 1213 (11th Cir. 2025): Abuse-of-discretion review for procedural reasonableness.
  • United States v. Ford, 784 F.3d 1386 (11th Cir. 2015): Clear-error review for factual findings.
  • United States v. Almedina, 686 F.3d 1312 (11th Cir. 2012), and United States v. Izquierdo, 448 F.3d 1269 (11th Cir. 2006): The “two reasonable constructions” principle—if two interpretations are reasonable, the factfinder’s choice is not clearly erroneous.
  • United States v. Green, 981 F.3d 945 (11th Cir. 2020): The district court may rely on trial evidence and draw reasonable inferences.
  • United States v. Ramirez-Chilel, 289 F.3d 744 (11th Cir. 2002), and United States v. Flores, 572 F.3d 1254 (11th Cir. 2009): Credibility determinations receive substantial deference; dubious character alone does not make testimony “incredible.”

Legal Reasoning

1) The Sixth Amendment claim: acquitted conduct is permissible within the statutory ceiling

The panel treated the Sixth Amendment question as largely controlled by binding precedent. The operative logic is:

  1. An acquittal (or a “no” answer to a special interrogatory) means only that the government failed to meet the beyond-a-reasonable-doubt burden; it does not prevent a court from finding the same conduct more likely than not.
  2. Post-Booker, judges have discretion to select a sentence within the statutory range, using facts found by a preponderance of the evidence.
  3. The constitutional constraint arises when judge-found facts raise punishment beyond the statutory maximum authorized by the jury verdict (the Apprendi principle). That did not happen here because the sentence stayed under 240 months.

2) The Fifth Amendment claim: due process is not violated absent extraordinary circumstances

On due process, the panel followed United States v. Culver and United States v. Clay: using acquitted conduct at sentencing is permissible under the preponderance standard so long as the sentence is within the verdict-authorized maximum and the case is not an “extreme” outlier. The panel rejected Pharms’ fair-notice and inaccuracy arguments by distinguishing Townsend v. Burke, where the sentencing was based on materially false assumptions without counsel.

3) The 2024 Guidelines amendment: no constraint on § 3553(a) consideration

The panel acknowledged U.S.S.G. § 1B1.3(c) (effective Nov. 1, 2024) and noted uncertainty about its impact on Eleventh Circuit precedent. But it held the amendment did not matter because—even if it narrows acquitted conduct for Guidelines calculation—it does not restrict what a district court may consider when applying § 3553(a). For that proposition, the panel cited United States v. Ware and United States v. Ralston.

4) Procedural reasonableness: no clear error in finding Pharms was the shooter

The district court found by a preponderance that Pharms fired at Officer Johnson. The panel held that finding was not clearly erroneous because it was supported by:

  • Video evidence placing Pharms as the passenger and Beard as the driver, supporting an inference that the passenger fired;
  • Testimony from Beard that Pharms fired the shots;
  • Testimony from Hardy that Pharms admitted to shooting;
  • Social media evidence depicting Pharms with a gun resembling the one tied to shell casings.

Even assuming competing inferences were possible (e.g., the driver could have fired), United States v. Almedina and United States v. Izquierdo foreclosed reversal where the district court selected one of two reasonable constructions. And credibility attacks based on cooperating-witness incentives did not render testimony “incredible” under United States v. Ramirez-Chilel and United States v. Flores.

Impact

  • Continued viability of acquitted-conduct sentencing in the Eleventh Circuit: The opinion reinforces that, unless and until superseded by en banc or Supreme Court authority, Eleventh Circuit panels will apply United States v. Faust, United States v. Maddox, and United States v. Rushin to uphold reliance on acquitted conduct proven by a preponderance, provided the sentence remains within the verdict-authorized statutory maximum.
  • Practical narrowing of the 2024 Guidelines amendment’s reach: By adopting the distinction reflected in United States v. Ware and United States v. Ralston, the panel signals that U.S.S.G. § 1B1.3(c) may reduce acquitted conduct’s role in the Guidelines range yet still leave district courts room to consider the same conduct under § 3553(a) when deciding whether to vary. For litigants, this shifts strategic focus: even if the Guidelines calculation is constrained, the fight may move to variance justification and the robustness of the sentencing record.
  • Emphasis on building (or attacking) the sentencing evidentiary foundation: Because the panel resolves the procedural challenge through clear-error deference, future defendants facing acquitted-conduct variances will likely need to attack reliability (internal inconsistency, impossibility, or documentary contradiction) rather than merely highlighting witness incentives.

Complex Concepts Simplified

“Acquitted conduct”
Conduct the defendant was charged with but the jury did not find proven beyond a reasonable doubt. Under existing Eleventh Circuit law, the judge may still consider that conduct at sentencing if the judge finds it more likely than not (preponderance standard).
Preponderance of the evidence
A lower standard of proof than “beyond a reasonable doubt.” It means the fact is more likely true than not.
Statutory maximum authorized by the jury verdict
The highest sentence permitted by the statute for the offenses the jury actually convicted the defendant of (including any jury-found elements). Under the Apprendi principle, a judge cannot use extra factfinding to raise the sentence above this ceiling.
Guidelines calculation vs. § 3553(a) sentencing discretion
The court first calculates an advisory Guidelines range (a technical computation governed by the Sentencing Guidelines). Separately, the court must then impose a sentence that is “sufficient, but not greater than necessary,” by considering the factors in 18 U.S.C. § 3553(a). The panel treated U.S.S.G. § 1B1.3(c) as affecting the first step, but not limiting the second step.
Procedural reasonableness / clear error
Procedural reasonableness asks whether the court used the correct process (proper calculation, consideration of arguments, adequate explanation, and factfinding). A factual finding is “clearly erroneous” only if the appellate court has a firm conviction a mistake was made; if two reasonable interpretations exist, the trial judge’s choice usually stands.

Conclusion

United States v. Keith Pharms reaffirms a durable Eleventh Circuit rule: a district court may rely on acquitted conduct—found by a preponderance of the evidence—to vary upward under § 3553(a), as long as the sentence remains within the statutory maximum authorized by the jury verdict. The panel also indicates that the 2024 addition of U.S.S.G. § 1B1.3(c), while potentially significant for Guidelines calculations, does not bar consideration of acquitted conduct in the court’s broader sentencing discretion. Finally, the decision underscores how difficult it is to overturn such a variance on appeal absent a demonstrably unreliable evidentiary basis or a clearly erroneous factual finding.