Eleventh Circuit Clarifies Discretion for Upward Variances Based on Undisputed Criminal Conduct and Juvenile Adjudications

Introduction

The decision in United States v. Derrick Ford, No. 24-11412 (11th Cir. May 22, 2025), affirms a 120-month sentence for possession of a stolen firearm under 18 U.S.C. § 922(j). The appellant, Derrick Ford, challenged both the procedural and substantive reasonableness of his sentence. The Eleventh Circuit upheld the district court’s reliance on undisputed facts in the presentence report and its broad discretion to weigh a defendant’s criminal history, including juvenile adjudications, when imposing an upward variance under 18 U.S.C. § 3553(a). This commentary explores the background facts, the court’s analysis, and the implications for sentencing practice.

Summary of the Judgment

Derrick Ford pleaded guilty to possession of a stolen firearm after the government reduced an initial armed-career-criminal charge. A presentence investigation report (PSR) recounted Ford’s extensive juvenile and adult record, including arrests and adjudications involving firearms, burglary, assault, and gang affiliation. The PSR calculated a Guidelines range of 24–30 months, and the statutory maximum was 120 months. At sentencing, the district court adopted that range but varied upward to 120 months, emphasizing Ford’s gang activity, unlawful possession of guns, dangerous burglaries, multiple probation revocations, and risk of recidivism. On appeal, Ford argued (1) procedural error in relying on disputed or uncharged conduct, (2) substantive unreasonableness of the variance, and (3) unwarranted disparities. The court reviewed procedural objections for plain error and substantive claims for abuse of discretion. It held that the district court properly relied on undisputed PSR facts—including juvenile and uncharged conduct—and permissibly gave great weight to Ford’s criminal history. It also found no basis for disparity relief and affirmed Ford’s sentence.

Analysis

Precedents Cited

Gall v. United States, 552 U.S. 38 (2007): A district court procedurally errs if it bases a sentence on clearly erroneous facts. Ford’s challenge required demonstrating that the district court’s factual findings were plainly wrong. The Eleventh Circuit reaffirmed that undisputed PSR statements may support such findings. (Hedges standard.)
United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999): PSR representations, if undisputed, can serve as a factual basis for sentencing decisions. The court applied this principle to uphold reliance on PSR recitals of Ford’s uncharged firearm arrests.
United States v. Tome, 611 F.3d 1371 (11th Cir. 2010): A district court may consider any relevant conduct, even without formal conviction. The opinion cited Tome to confirm that uncharged but undisputed conduct is a permissible sentencing factor.
United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): Sentencing courts “may attach great weight” to criminal history, including conduct already accounted for in the Guidelines. The Ford panel relied on Riley to support a major upward variance grounded in an extensive criminal record.
United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009): Upward variances significantly above the Guidelines range are permissible when justified by the defendant’s history, including juvenile adjudications. Shaw provided a direct analogy to Ford’s circumstances.
United States v. Steiger, 107 F.4th 1315 (11th Cir. 2024): Clarified the two-step reasonableness review: procedural first, then substantive. Ford’s appeal was assessed under this framework.

Legal Reasoning

The court’s analysis unfolded in two stages:

Procedural Reasonableness (Plain Error Review): Ford argued that the district court erred by finding that he “participated in criminal conduct involving the unlawful possession of guns.” Under Gall and Hedges, the court may rely on undisputed PSR facts. Here, Ford never objected to the PSR’s recitation of his prior arrests—one involving a stolen gun used in a homicide. Therefore, no plain error arose. The court emphasized that a defendant must lodge a clear objection in district court to preserve a procedural issue.
Substantive Reasonableness (Abuse of Discretion): Ford claimed the 120-month term (four times the high end of the Guidelines) was unreasonable. Citing Taylor, Riley, and Irey, the court reiterated that major variances demand commensurately strong justification. It agreed with the district court’s weighty concern about Ford’s persistent and violent criminal pattern, multiple probation revocations, and uncharged firearms conduct. The panel held that the district court did not give improper weight to any factor and acted well within its broad discretion under 18 U.S.C. § 3553(a).

Impact

This ruling underscores several important principles for sentencing:

District courts may rely on undisputed factual allegations in the PSR—even uncharged or non-conviction conduct—to inform upward variances.
Juvenile adjudications and arrests not resulting in convictions remain relevant background for § 3553(a) analysis, provided the defendant does not object at sentencing.
Defendants must lodge timely, clear objections to PSR facts to preserve procedural challenges. Failure to do so limits appellate review to plain error.
Sentencing disparities require comparators who are “similarly situated” in all relevant respects—mere statistical comparisons to defendants with the same Guidelines range and criminal history category are insufficient without factual parity.
The Eleventh Circuit will defer to a district court’s decision to attach great weight to criminal history when supported by record evidence of recidivism, probation revocations, and dangerous conduct.

Complex Concepts Simplified

Procedural Reasonableness: The requirement that a court correctly calculate the Guidelines, consider the 18 U.S.C. § 3553(a) factors, and base its findings on reliable evidence. If a defendant fails to object in district court, appellate review is limited to identifying a basic or “plain” error.
Substantive Reasonableness: The assessment of whether the length of a sentence is fair and proportionate, given all circumstances. Courts may vary from the Guidelines when justified but must explain the variance with reasons that match its size.
Presentence Investigation Report (PSR): A document prepared by probation officers that describes the offense, offender’s history, and other relevant facts. Courts often adopt undisputed PSR statements as factual findings.
Upward Variance: A sentence above the Guidelines range, permitted when a district court finds aggravating facts or weighty policy concerns under § 3553(a). The larger the variance, the stronger the justification required.
Similar ly Situated: Defendants compared in sentencing disparity arguments must match on offense conduct, criminal history details, and personal characteristics—not just guideline range and category.

Conclusion

United States v. Derrick Ford reaffirms that district courts have broad discretion to consider undisputed PSR facts, including uncharged and juvenile conduct, when determining an appropriate sentence under 18 U.S.C. § 3553(a). The Eleventh Circuit’s opinion emphasizes the importance of preserving objections at the district court level and clarifies that major upward variances may be upheld where a defendant’s extensive and escalating criminal record—juvenile adjudications, probation revocations, gang activity, and repeated firearm involvement—weigh heavily against mitigation. This decision will guide sentencing judges and practitioners in evaluating both the permissible scope of PSR reliance and the rigorous justification required for substantial variances.