Breach-of-Trust, Not Double Counting: The Eleventh Circuit affirms consecutive, within-Guidelines revocation sentences despite an upward variance on the new offense (United States v. Foley)

Breach-of-Trust, Not Double Counting: The Eleventh Circuit affirms consecutive, within-Guidelines revocation sentences despite an upward variance on the new offense

Introduction

In United States v. Foley (No. 24-14182, Sept. 29, 2025), the Eleventh Circuit (per curiam; non-argument calendar; not for publication) affirmed a 36‑month term of imprisonment imposed upon revocation of supervised release by the United States District Court for the Southern District of Georgia. The revocation term was ordered to run consecutively to a separate 125‑month sentence for a controlled substance offense imposed by the United States District Court for the Middle District of Georgia. The central contention on appeal was substantive reasonableness: the defendant argued that because the Middle District had already accounted for his supervised-release violations—imposing an upward variance from the advisory range of 70–87 months to 125 months—the Southern District’s additional, consecutive 36‑month revocation sentence was unreasonable and should have been reduced or run concurrently.

The Eleventh Circuit rejected that argument. Grounding its analysis in the abuse‑of‑discretion standard, the court emphasized the distinct purpose of revocation sentencing—sanctioning the “breach of trust”—and the Sentencing Commission’s policy favoring consecutive revocation terms, U.S.S.G. § 7B1.3(f). The panel also acknowledged the Supreme Court’s recent decision in Esteras v. United States, 145 S. Ct. 2031 (2025), clarifying that 18 U.S.C. § 3553(a)(2)(A)’s retributive purposes (seriousness of the offense, respect for law, just punishment) are off‑limits in revocation sentencing. Ultimately, the court concluded the district judge acted well within the permissible range of choice in imposing a within‑Guidelines, consecutive revocation sentence based on 15 stipulated violations, including repeated cocaine possession that made revocation mandatory.

Case Snapshot

  • Court: U.S. Court of Appeals for the Eleventh Circuit
  • Panel: Judges Rosenbaum, Newsom, and Abudu (per curiam)
  • Date: September 29, 2025
  • Disposition: Affirmed
  • Key holdings:
    • Revocation sentences are reviewed for substantive reasonableness under abuse‑of‑discretion.
    • Within‑Guidelines revocation terms are ordinarily expected to be reasonable.
    • Consecutive revocation terms are supported by U.S.S.G. § 7B1.3(f) and the breach‑of‑trust rationale in Chapter 7.
    • Post‑Esteras, district courts may not consider § 3553(a)(2)(A)’s retributive purposes in revocation sentencing.
    • The fact that a new sentence has already varied upward to reflect supervision violations does not require a shorter or concurrent revocation term.

Summary of the Opinion

The court affirmed the Southern District of Georgia’s decision to impose a 36‑month revocation sentence consecutive to the Middle District of Georgia’s 125‑month term for the new drug offense. The Eleventh Circuit:

  • Applied abuse‑of‑discretion review to Foley’s substantive reasonableness challenge (he did not press a procedural reasonableness claim).
  • Observed the revocation sentence fell within the advisory range (33–41 months) and was consistent with U.S.S.G. § 7B1.3(f)’s recommendation that revocation time run consecutively to the new‑offense sentence.
  • Emphasized that revocation sentences sanction a defendant’s breach of the court’s trust, not the new criminal conduct itself (U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b)).
  • Noted the district court permissibly gave heavy weight to the nature and frequency of Foley’s 15 supervision violations, including repeated cocaine possession, and to his having “squandered” a prior second chance.
  • Rejected the argument that the earlier upward variance for the new offense compelled either a more lenient revocation term or concurrency.
  • Cited Esteras to reinforce that retributive purposes under § 3553(a)(2)(A) are not proper considerations at revocation—but found no indication the district court relied on such impermissible factors.

Analysis

Precedents and Authorities Cited

  • 18 U.S.C. § 3583(e)(3) and § 3583(g)
    • § 3583(e)(3) authorizes the court to revoke supervised release and require imprisonment for all or part of the authorized term.
    • § 3583(g) mandates revocation when a defendant unlawfully possesses a controlled substance. The panel noted Foley repeatedly possessed cocaine, making revocation obligatory.
  • Review standard for revocation sentences
    • United States v. Sweeting, 437 F.3d 1105 (11th Cir. 2006): Revocation sentences are reviewed for reasonableness.
    • United States v. Moore, 22 F.4th 1258 (11th Cir. 2022), and United States v. Trailer, 827 F.3d 933 (11th Cir. 2016): Substantive reasonableness is assessed for abuse of discretion based on the totality of circumstances.
    • United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020), citing United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): A sentence is substantively unreasonable if the court (1) fails to consider relevant factors due significant weight; (2) gives significant weight to improper or irrelevant factors; or (3) commits a clear error of judgment in weighing proper factors.
    • United States v. Taylor, 997 F.3d 1348 (11th Cir. 2021): An appellate court may vacate only if left with the definite and firm conviction that the district court clearly erred in judgment in weighing § 3553(a) factors.
  • Weight of Guidelines and burden on appellant
    • United States v. Foster, 878 F.3d 1297 (11th Cir. 2018), citing United States v. Hunt, 526 F.3d 739 (11th Cir. 2008): A within‑Guidelines sentence is ordinarily expected to be substantively reasonable.
    • United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015), citing United States v. Langston, 590 F.3d 1226 (11th Cir. 2009): The defendant bears a heavy burden to show unreasonableness.
  • Discretion to weigh § 3553(a) factors
    • United States v. Butler, 39 F.4th 1349 (11th Cir. 2022), citing United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007); United States v. Overstreet, 713 F.3d 627 (11th Cir. 2013); United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008): The district court has wide latitude to assign weight among the § 3553(a) factors, and appellate courts will not reweigh so long as the sentence is reasonable.
    • United States v. King, 57 F.4th 1334 (11th Cir. 2023): A district court may give greater weight to violations of supervised release than to mitigating considerations.
  • Guideline policy statements for revocation
    • U.S.S.G. § 7B1.3(f): When the court imposes a term upon revocation along with a sentence for new criminal conduct, the revocation term should be served consecutively.
    • U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b): The “primary goal” in the revocation context is to sanction the defendant’s breach of the court’s trust, not to punish the new criminal conduct.
  • Supreme Court guidance on permissible § 3553(a) purposes at revocation
    • Esteras v. United States, 145 S. Ct. 2031, 2045 (2025): District courts may not consider § 3553(a)(2)(A)’s retributive purposes—seriousness of the offense, respect for law, and just punishment—when imposing revocation sentences.
  • General appellate deference
    • United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc), quoting United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc): The abuse‑of‑discretion standard “allows a range of choice for the district court,” so long as that choice is not a clear error of judgment.

Legal Reasoning

Foley’s sole claim—substantive unreasonableness—framed a “double counting” concern: because the Middle District’s 125‑month sentence already reflected an upward variance tied in part to his supervised‑release violations, the Southern District should have deemed that mitigation and either shortened the revocation term or ordered it to run concurrently. The Eleventh Circuit rejected that contention for several interlocking reasons:

  1. Distinct purpose of revocation—breach of trust. The court centered its analysis on the Commission’s Chapter 7 policy statements, which treat revocation as a sanction for the defendant’s breach of the court’s trust, not a reprosecution of the new criminal conduct. This framing undercuts “double counting” claims: the revocation sentence is imposed for a separate, supervision‑based wrong, even if the same underlying conduct triggered both new criminal liability and the violation.
  2. Consecutiveness is the default policy. Section 7B1.3(f) recommends that revocation imprisonment be consecutive to any sentence for the new offense. The district court followed that recommendation. While policy statements are advisory, the Eleventh Circuit has long treated within‑range sentences that adhere to Commission guidance as “ordinarily” reasonable, and it found nothing in this record to overcome that expectation.
  3. Within‑Guidelines term. The 36‑month revocation sentence fell within the advisory range (33–41 months), a data point the Eleventh Circuit repeatedly recognizes as evidence of reasonableness. The court had no “definite and firm conviction” that this choice was a clear error of judgment.
  4. Permissible § 3553(a) considerations at revocation. The panel expressly noted the post‑Esteras rule that courts may not consider § 3553(a)(2)(A) (seriousness, respect for law, just punishment) at revocation. There was no indication the district court did so here. Instead, the court focused on Foley’s history and characteristics (§ 3553(a)(1)), including the number and frequency of violations; the need for deterrence and public protection (§ 3553(a)(2)(B)–(C)); and the applicable guideline/policy statements (§ 3553(a)(4)–(5)).
  5. Wide latitude to weigh factors. Under Butler and related cases, district courts may assign great weight to one factor over others. Relying on that discretion, the Southern District gave heavy weight to Foley’s extensive violation history—15 stipulated violations, including multiple cocaine possession incidents—and to the fact that he had been given a “second chance” when the court recessed a prior revocation hearing, which he then “squandered” by committing seven additional violations.
  6. No obligation to discount for the Middle District’s upward variance. Although the revocation court could have considered the earlier upward variance as mitigation, nothing in the statutes, guidelines, or caselaw required it to do so—or to order concurrency. Particularly in light of § 7B1.3(f), the court acted well within its discretion in imposing a consecutive term to vindicate the breach‑of‑trust purpose of revocation.

Potential Impact

While unpublished, Foley reinforces several important points likely to shape revocation practice in the Eleventh Circuit:

  • Consecutive revocation terms remain robustly supported. District courts can confidently impose consecutive revocation terms—even when a new‑offense sentence has already varied upward based on related conduct—without risking reversal, so long as they anchor their decisions in the Chapter 7 breach‑of‑trust rationale and permissible § 3553(a) considerations.
  • Within‑Guidelines remains the path of least resistance on appeal. A revocation term within the advisory range is “ordinarily” expected to be reasonable. Defendants face a particularly steep burden to show substantive unreasonableness absent unusual facts.
  • Post‑Esteras guardrail: avoid § 3553(a)(2)(A) at revocation. Foley highlights the new Supreme Court directive: retributive aims are impermissible in the revocation context. Expect increased appellate scrutiny for any explicit reliance on “seriousness,” “respect for law,” or “just punishment” in revocation rationales.
  • Inter‑district coordination is not mandatory. Even when different districts sentence the new offense and the revocation, the revocation court may independently exercise its discretion, including by imposing a consecutive term, without being bound to “credit” the other court’s upward variance.
  • Defense strategies must recalibrate. Arguments that an upward variance on the new offense “already accounts” for the violation will seldom carry the day unless coupled with powerful mitigation and perhaps a showing that consecutive time materially undermines other § 3553(a) goals (e.g., treatment availability or rehabilitation prospects)—and even then, the district court’s contrary weighing is likely to be affirmed.

Complex Concepts Simplified

  • Substantive vs. procedural unreasonableness:
    • Procedural attacks challenge how the sentence was imposed (e.g., incorrect Guidelines, failure to consider factors). Foley did not press this.
    • Substantive attacks (Foley’s claim) challenge the sentence’s length as unreasonable given the facts and factors. The standard is highly deferential.
  • Abuse‑of‑discretion / “range of choice”: The appellate court asks whether the district judge made a clear error of judgment. If the sentence falls within the broad “range of choice” and is justified by the record and the permissible § 3553(a) factors, it will be affirmed.
  • Guidelines vs. policy statements (Chapter 7): For revocations, the Commission provides advisory policy statements rather than binding guidelines. Even so, the Eleventh Circuit gives their recommendations (like consecutiveness under § 7B1.3(f)) substantial persuasive weight.
  • “Breach of trust” vs. punishment for the new crime: Revocation punishes the violation of the court’s trust (failure to comply with supervision), not the new crime itself. That’s why consecutive terms make sense: the revocation sentence is imposed for a different wrong than the new offense.
  • Permissible § 3553(a) goals at revocation: Post‑Esteras, courts may consider deterrence, public protection, and needed treatment or training (§ 3553(a)(2)(B)–(D)), but may not consider retribution (§ 3553(a)(2)(A)).
  • Consecutive vs. concurrent: Consecutive means the revocation term starts after the new sentence ends; concurrent means it runs at the same time. Chapter 7 recommends consecutiveness for revocation terms when imposed alongside a new sentence.
  • Mandatory revocation for drugs: If a defendant on supervised release unlawfully possesses a controlled substance, § 3583(g) requires the court to revoke supervision. That is separate from deciding the length and concurrency of the prison term upon revocation.

Conclusion

United States v. Foley underscores the Eleventh Circuit’s deferential posture toward district courts’ revocation sentencing decisions, especially where the court hews to Chapter 7 policy statements and stays within the advisory range. The opinion reinforces three core points. First, revocation serves a distinct purpose—sanctioning a breach of the court’s trust—which supports a separate, typically consecutive penalty even when the new‑offense sentence has already increased based on the same misconduct. Second, a within‑Guidelines revocation term that tracks § 7B1.3(f)’s consecutiveness recommendation is “ordinarily” reasonable and difficult to overturn on appeal. Third, after the Supreme Court’s decision in Esteras, courts must cabin their revocation rationales to permissible § 3553(a) purposes, avoiding retributive aims under § 3553(a)(2)(A).

Applying these principles, the Eleventh Circuit found no abuse of discretion in the Southern District’s imposition of a 36‑month, consecutive revocation sentence on the heels of a 125‑month new‑offense term from a different district. With 15 stipulated violations—including repeated cocaine possession—Foley’s case fit squarely within the Guidelines’ and policy statements’ design, and the district court’s weighing of factors fell comfortably within the “range of choice” allowed by law. The judgment was therefore affirmed.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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