Deterrence Without Empirical Proof: Eleventh Circuit Reaffirms District Courts’ Discretion to Rely on Experience When Weighing § 3553(a) Factors

Case: United States v. Frank D. Cavanaugh, No. 25-10348 (11th Cir. Nov. 6, 2025) (per curiam) (non-argument calendar) (unpublished)

Panel: Jordan, Kidd, and Anderson, Circuit Judges

Disposition: Sentence affirmed

Introduction

In this nonprecedential, per curiam opinion, the Eleventh Circuit affirmed a 72‑month sentence imposed on Frank D. Cavanaugh following his guilty plea to two counts of mailing threatening communications in violation of 18 U.S.C. § 876(c). The case centers on a recurring sentencing question: whether a district court may rely on its own experience-based judgment that incarceration serves both specific and general deterrent purposes, even where a defendant cites empirical studies casting doubt on the deterrent effect of imprisonment. Cavanaugh also argued the court failed to give adequate weight to compelling mitigating evidence, including a traumatic upbringing and mental-health struggles.

The Eleventh Circuit rejected both arguments. It held that the sentencing judge permissibly relied on deterrence—an expressly enumerated § 3553(a) factor—and on judicial experience, and did not rest the sentence on materially untrue facts. The court also emphasized the wide discretion district courts possess to weigh mitigating and aggravating factors, and found the upward variance substantively reasonable in light of Cavanaugh’s lengthy, violent criminal history, which the district court deemed “grossly underrepresented” by the Guidelines.

Summary of the Opinion

Standard of review: Substantive reasonableness is reviewed for abuse of discretion under Gall v. United States. The challenger bears the burden to show the sentence is unreasonable in light of the record and the § 3553(a) factors.
Deterrence reasoning: The district court explicitly acknowledged literature questioning the deterrent effect of incarceration but stated its belief that prison has both specific and general deterrent effects. The Eleventh Circuit held this reliance was proper because deterrence is mandated by § 3553(a)(2)(B)–(C) and judges may draw on their experience; empirical studies do not displace that judgment.
No due process violation: The court distinguished cases like Townsend v. Burke and United States v. Tobias—where sentencing courts relied on materially false facts in the record—finding no comparable factual error here.
Weight of mitigation: The district court carefully considered mitigation—including a “remarkable” set of life hardships and mental-health issues—but permissibly concluded that Cavanaugh’s extensive violent history warranted greater weight, justifying an upward variance.
Holding: The 72‑month sentence (an upward variance from a 46–57 month advisory range) was substantively reasonable. Affirmed.

Background

On May 21, 2023, while in state custody, Frank Cavanaugh mailed letters to two judges demanding release and payments via cash apps. He threatened shootings outside their homes by gang members, arson, and harm to their families. When interviewed by federal agents four days later, he immediately confessed and admitted writing two additional letters to other judges.

In September 2023, a grand jury indicted Cavanaugh on two counts under 18 U.S.C. § 876(c). He pled guilty. After an initial sentence on May 6, 2024, the district court re-sentenced him on March 5, 2025 due to an earlier Guidelines-calculation error. On re-sentencing, the court again considered extensive mitigation—trauma, prison experiences, and mental-health struggles—but concluded his violent criminal history was “grossly underrepresented” in the Guidelines, and varied upward to 72 months. Defense counsel had requested a within-Guidelines sentence (46–57 months) or 60 months.

Issues on Appeal

Whether the district court abused its discretion by relying on a belief that incarceration deters crime, notwithstanding empirical studies to the contrary.
Whether the district court failed to give adequate weight to mitigating evidence, rendering the sentence substantively unreasonable.

Detailed Analysis

1. Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007): Establishes abuse-of-discretion review for substantive reasonableness and affords substantial deference to the district court’s on-the-ground assessment of § 3553(a) factors.
United States v. Tome, 611 F.3d 1371 (11th Cir. 2010): Confirms the challenger’s burden to show unreasonableness in light of the record and § 3553(a).
United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015): Clarifies that district courts need not weigh all § 3553(a) factors equally and may give one factor significant weight over another, including deterrence and protection of the public.
United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (en banc): Defines abuse of discretion in sentencing as (1) failure to consider significant relevant factors, (2) giving weight to an improper or irrelevant factor, or (3) a clear error of judgment regarding the proper factors.
United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008): Emphasizes appellate deference; reversal is warranted only when there is a “definite and firm conviction” that the sentence is unreasonable.
United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Reaffirms the centrality of deterrence in federal sentencing; cited to show the judiciary, Congress, and the Sentencing Commission all recognize deterrence as a legitimate, important goal.
Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (Pryor, C.J., concurring), abrogated on other grounds by United States v. Davis, 588 U.S. 445 (2019): Quoted for the uncontroversial premise that recidivists often receive longer sentences—used to underscore that enhanced punishment for repeat offenders is a familiar and accepted sentencing outcome.
United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009): Key support for the principle that sentencing judges may rely on their experience and are not required to ground their conclusions exclusively in empirical literature; empirical studies can inform but do not supplant judicial discretion.
United States v. Courtney, 76 F. Supp. 3d 1267, 1306 n.13 (D.N.M. 2014), citing Daniel S. Nagin (2013): Persuasive authority observing that punishment severity may retain some deterrent effect, even if imperfect. The Eleventh Circuit does not adopt Courtney, but cites it to illustrate that the social-science record is nuanced, not uniform.
Townsend v. Burke, 334 U.S. 736 (1948), and United States v. Tobias, 662 F.2d 381 (5th Cir. 1981): Both stand for the due process rule that a sentence cannot rest on materially false information or unsupported factual assumptions. The panel distinguishes these cases because the district court in Cavanaugh relied on a policy judgment (deterrence), not a materially untrue “fact.”

2. Legal Reasoning

The court’s analysis proceeds from core sentencing doctrine:

Deterrence is statutory and legitimate: Section 3553(a)(2)(B)–(C) explicitly requires courts to consider the need for the sentence to afford adequate deterrence to criminal conduct (general and specific) and to protect the public from further crimes. The district court’s remarks directly addressed these factors.
Empirical studies do not control: The appellate panel emphasized that judges are not bound to adopt conclusions from social-science literature as a prerequisite to considering deterrence. Citing Shaw, the court reaffirmed that judges may rely on their experience and case-by-case assessments; empirical evidence can inform but does not displace judicial judgment.
No material factual error: Cavanaugh’s reliance on Townsend and Tobias failed because those cases police reliance on materially false factual premises. Here, the district court did not misstate any record facts; it made a policy judgment permitted (indeed, required) by statute.
Weighting of factors is discretionary: The sentencing judge thoroughly acknowledged Cavanaugh’s “remarkable” mitigation—trauma, harsh incarceration experiences, and mental-health issues—but concluded his violent and persistent criminal history warranted greater weight, especially given the court’s view that the Guidelines underrepresented that history. Under Rosales‑Bruno, a court may assign greater weight to certain factors, and appellate courts will not reweigh them de novo.
Upward variance substantiated: Against a 46–57 month advisory range, the court imposed 72 months, citing protection of the public and deterrence, as well as the underrepresentation of criminal history. Under Gall/Pugh/Campa, the panel found no improper factor and no clear error of judgment.

3. Impact and Implications

Reaffirmed discretion to invoke deterrence without empirical proof: While unpublished, the opinion fortifies within the Eleventh Circuit the proposition that district courts may rely on experience-based beliefs about deterrence. Defendants cannot establish an “improper factor” merely by citing academic studies suggesting limited deterrent effects of incarceration.
Due process challenges require factual error, not policy disagreement: Townsend/Tobias arguments will likely fail unless a defendant can identify a materially untrue or unsupported factual assumption in the sentencing record. Disagreement with a judge’s policy judgment on deterrence is not enough.
Mitigation must be powerful and case-specific to prevail on appeal: Even substantial mitigation (trauma, mental illness) may be outweighed by a violent, persistent record and the need to protect the public. Appellate courts defer to the district court’s weighing unless the record demonstrates a clear error of judgment.
Underrepresented criminal history can justify variances: Even without a formal Guidelines departure (e.g., under § 4A1.3), courts can vary upward when the § 3553(a) factors—particularly protection of the public and deterrence—indicate the advisory range underrepresents a defendant’s risk.
Practical takeaway for defense counsel: To meaningfully challenge a deterrence-based rationale on appeal, focus on (a) identifying a concrete factual misstatement or (b) developing a robust record for alternatives under § 3553(a)(2)(D) (treatment and rehabilitation) that specifically address individualized risks, thereby proposing less carceral but sufficiently protective alternatives. General social-science citations, standing alone, will rarely carry the burden on substantive reasonableness.

Complex Concepts Simplified

Substantive reasonableness: A review of whether the length of the sentence is reasonable in light of statutory factors. It is distinct from procedural reasonableness (which concerns process errors like miscalculating the Guidelines). The bar to overturn a sentence as substantively unreasonable is high.
Upward variance vs. departure: A variance is a sentence outside the advisory Guidelines range based on § 3553(a) factors. A departure is a change directed by the Guidelines themselves (e.g., policy statements). Here, the court imposed an upward variance based on § 3553(a), including deterrence and protection of the public.
General vs. specific deterrence: General deterrence aims to dissuade the public from committing crimes; specific deterrence aims to prevent the particular defendant from reoffending. Both are expressly listed in § 3553(a)(2).
Abuse of discretion (sentencing context): A sentence is an abuse of discretion if the court ignores a factor that should have been given significant weight, relies on an improper factor (like a materially false fact), or commits a clear error of judgment in balancing proper factors.
Materially false information at sentencing: Due process prohibits sentencing based on materially untrue facts (e.g., assuming prior convictions that do not exist). Policy judgments or experience-based conclusions about deterrence are not “facts” in this sense.

Key Passages from the Opinion

“Under the § 3553(a) factors, the court is required to consider deterrence—both general and specific. See § 3553(a)(2)(B)(C).”

“There is no requirement that sentencing judges confine their considerations to empirical studies and ignore what they have learned from similar cases over the years.” (citing United States v. Shaw)

“That Mr. Cavanaugh can point to certain select empirical studies that disagree with prison as an effective deterrent to crime does not necessarily establish that the district court abused its discretion.”

“The [district] court… specifically discussed Mr. Cavanaugh’s difficult upbringing and struggles with mental health… But it was squarely within the court’s discretion to determine how to weigh the mitigating and aggravating factors.”

Conclusion

United States v. Cavanaugh underscores two enduring features of federal sentencing in the Eleventh Circuit. First, a district court may rely on its own experience and judgment to conclude that incarceration has both specific and general deterrent effects, even in the face of empirical studies that suggest otherwise. That judgment is not an “improper factor”; it is a statutory imperative under § 3553(a)(2)(B)–(C). Second, the appellate court will not reweigh mitigation on a cold record. Where the district court has engaged with the defendant’s mitigating evidence but finds public-protection and deterrence concerns paramount—particularly in the face of a serious, underrepresented criminal history—an upward variance will often be sustained.

Though unpublished and therefore nonbinding, Cavanaugh is a practical guidepost for Eleventh Circuit sentencing: empirical critiques alone will not invalidate a deterrence rationale, and due process challenges must identify materially false factual premises—not mere disagreements with the court’s policy judgments. The opinion signals continued deference to district judges who ground their sentencing decisions in a thorough, record-based application of § 3553(a).