Eleventh Circuit: Sentencing Statistics Alone Do Not Prove § 3553(a)(6) Disparity; Statutory-Max Upward Variance and Consecutive Revocation Term Upheld for Child-Pornography Recidivist

Introduction

In United States v. Brad Tyler Suddeth, Nos. 24-13041 & 24-13042 (11th Cir. Sept. 30, 2025) (per curiam) (unpublished), a panel of Judges Branch, Brasher, and Kidd affirmed a substantial upward variance to the statutory maximum for a new non-production child-pornography offense, together with a consecutive statutory-maximum term upon revocation of supervised release. Decided on the non-argument calendar, the opinion underscores two core themes in Eleventh Circuit sentencing jurisprudence:

• Deference to district courts’ weighing of 18 U.S.C. § 3553(a) factors—particularly where immediate post-release recidivism and community protection loom large; and
• The limits of “unwarranted sentencing disparity” arguments under § 3553(a)(6)—Sentencing Commission statistics alone do not carry a defendant’s burden without “apples-to-apples” comparators.

The parties were the United States (Plaintiff–Appellee) and Brad Tyler Suddeth (Defendant–Appellant), who challenged the substantive reasonableness of his total 144-month aggregate sentence: 120 months for a new possession-of-child-pornography conviction and 24 months upon revocation of supervised release, to run consecutively.

Summary of the Opinion

The Eleventh Circuit affirmed. Applying abuse-of-discretion review, the panel held that the district court acted within its broad sentencing discretion in varying upward from advisory ranges of 27–33 months (new offense) and 4–10 months (revocation) to impose the statutory maximums based on the seriousness of the offense, the defendant’s immediate recidivism after serving a prior 97-month sentence for similar conduct, disturbing child-focused writings, and the need for deterrence and protection of the public. The court rejected Suddeth’s claim of unwarranted sentencing disparity under § 3553(a)(6) because he relied on Sentencing Commission statistics without identifying any concrete, similarly situated comparator. The opinion relied on established Eleventh Circuit authority that statistical comparisons are insufficient absent matching factual and offender characteristics.

Background and Procedural History

In 2015, Suddeth pleaded guilty to possession of child pornography and received 97 months’ imprisonment followed by 25 years’ supervised release. His factual stipulation included communications with young girls (some as young as eight), possession of 600+ images, and images involving prepubescent children.

After serving his custodial term (including six months of home confinement) and beginning supervised release in May 2022, probation officers discovered:

• His access to pornographic sites, including “preteen” sites;
• Self-admitted viewing of child pornography 2–3 times per week while on home confinement;
• Possession of child pornography on an iPod Touch (including images of approximately 13-year-old girls exposing genitals and breasts);
• Inappropriate online communications with minors; and
• Self-composed, handwritten stories depicting child rape, incest, abduction, and molestation (written in prison and stored at home).

A supervised-release revocation petition issued, and in a separate criminal case, an information charged a new count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) (the information also referenced 18 U.S.C. § 2260A). Under a plea agreement, Suddeth pleaded guilty to the possession count and admitted the violation premised on the new offense. He acknowledged exposure to a 10-year statutory maximum for the new offense and a 2-year maximum upon revocation, with the possibility of consecutive sentences (for a combined 12-year maximum). The plea agreement contained a sentence-appeal waiver with an exception that preserved his right to appeal an above-guidelines sentence—an exception triggered at sentencing.

The Sentencing and the Issues on Appeal

At the joint sentencing/revocation hearing, the district court calculated advisory ranges of 27–33 months (new offense) and 4–10 months (revocation). The government sought the top of each range, emphasizing the “highly disturbing” immediacy of recidivism and the risk indicated by the writings. The defense sought bottom-of-the-range terms, pointing to candid admissions, remorse, and willingness to seek intensive therapy.

Finding the guidelines “woefully insufficient” to address the seriousness of the offense, Suddeth’s history and characteristics, deterrence, respect for the law, and protection of the public, the court imposed:

• 120 months (statutory maximum) for the possession offense, plus 25 years’ supervised release; and
• 24 months (statutory maximum) for the revocation, to run consecutively.

On appeal, Suddeth launched a single challenge: that the total 144-month sentence is substantively unreasonable because it creates an unwarranted § 3553(a)(6) sentencing disparity vis-à-vis similarly situated non-production offenders.

Precedents Cited and Their Role in the Decision

• Gall v. United States, 552 U.S. 38, 51 (2007): Supplies the abuse-of-discretion standard for substantive reasonableness and instructs appellate courts to give due deference to district courts’ weighing of § 3553(a) factors, considering the extent of any variance without applying a presumption of (un)reasonableness to outside-the-guidelines sentences.
• United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): Clarifies that substantive unreasonableness exists where the sentencing court gives significant weight to an improper factor, fails to consider factors deserving significant weight, or commits a clear error of judgment. It emphasizes district courts’ discretion in weighting the factors.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Confirms no presumption applies to variances and requires sentencing courts to provide sufficient justification for significant variances.
• United States v. Williams, 526 F.3d 1312 (11th Cir. 2008): Allows consideration of prior offenses in § 3553(a) analysis even if those offenses are already accounted for in the guidelines—relevant to the district court’s reliance on Suddeth’s history.
• United States v. Johnson, 803 F.3d 610 (11th Cir. 2015): Upholds an upward variance where the guidelines understated the seriousness of the defendant’s history—supporting the district court’s conclusion that the ranges did not adequately reflect the § 3553(a) purposes.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Provides the “definite and firm conviction of a clear error of judgment” test and underscores the gravity of child-sex offenses, recognizing that greater seriousness can warrant longer sentences.
• United States v. Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015), and United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009): Establish that claims of unwarranted disparity require individualized comparator analysis; mere reliance on Sentencing Commission statistics or general offense labels is insufficient because “apples must be compared to apples.”
• United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) and United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005): Emphasize that child-pornography offenses are serious and harmful, not victimless.
• United States v. Hall, 965 F.3d 1281 (11th Cir. 2020); United States v. Johnson, 451 F.3d 1239 (11th Cir. 2006); United States v. Turner, 626 F.3d 566 (11th Cir. 2010); United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009): Illustrate Eleventh Circuit willingness to uphold significant upward variances or very long sentences in child-pornography contexts when § 3553(a) factors justify them.

Legal Reasoning

Standard and Deference

The panel applied abuse-of-discretion review to assess substantive reasonableness, examining the sentence “in light of the totality of the circumstances.” Consistent with Gall and Rosales-Bruno, the court reiterated that district judges have wide latitude in deciding how much weight to give individual § 3553(a) factors and that appellate courts will not reweigh them so long as the result falls within the range of reasonable sentences supported by the record.

Upward Variance Justifications

The district court found the advisory ranges “woefully insufficient” and emphasized:

• Immediate recidivism: Suddeth resumed viewing/possessing child pornography and engaging minors online almost immediately after completing a 97-month sentence for the same core misconduct;
• Risk indicators: The self-authored writings depicting sexual victimization of children and the concealment of those writings were “very disturbing”;
• § 3553(a) purposes: Seriousness of the offense, promoting respect for the law, just punishment, deterrence (specific and general), and protection of the public.

The Eleventh Circuit endorsed these reasons as legitimate, weighty, and sufficiently explained. It highlighted that district courts may accord greater weight to some § 3553(a) factors—here, history and characteristics, deterrence, and public protection—without committing error.

Consecutive Statutory-Max Revocation Sentence

The court also approved the consecutive 24-month revocation term. While the opinion did not delve into the policy statements of Chapter 7 of the Sentencing Guidelines, its holding aligns with the widely recognized principle that a revocation sentence punishes the breach of trust inherent in violating supervised release and may run consecutive to the sentence for the new offense. The aggregate result—120 months plus 24 months—was within authorized statutory limits and supported by the same § 3553(a) considerations.

Rejection of the Sentencing Disparity Challenge

Suddeth’s principal argument—relying on Sentencing Commission statistics about typical sentences for non-production child-pornography offenders—failed because § 3553(a)(6) disparity analysis requires individualized comparators. Azmat and Docampo require defendants to show that “apples are being compared to apples,” meaning the cited defendants must:

• Have similar criminal records and criminal histories;
• Engage in similar conduct with similar aggravation/mitigation (e.g., immediacy of recidivism, nature and volume of images, conduct toward minors, risk factors, admissions, obstruction, acceptance of responsibility); and
• Face similar statutory exposure and sentencing postures (e.g., presence of revocation, consecutive terms, supervised release conditions).

Because Suddeth identified no concrete comparator cases with materially similar facts and characteristics, the panel held he failed to carry his burden to prove an unwarranted disparity.

Impact and Implications

Key Takeaways for Practitioners

• Comparator specificity is essential: Defendants cannot rely on national or categorical statistics to prove unwarranted disparity under § 3553(a)(6). Identify specific defendants with closely matched offense conduct, criminal history, and case posture.
• Immediate post-release recidivism is a powerful aggravator: The Eleventh Circuit continues to treat swift reoffending after a substantial term as a compelling reason for substantial variances to protect the public and deter.
• Writings and non-contact conduct can inform risk: Self-authored materials and online behaviors that depict or gravitate toward harm to children can substantiate the need for upward variances even in “non-production” cases.
• Consecutive revocation terms remain viable tools: District courts may combine a custodial term for the new offense with a consecutive revocation term to address both punishment for the new crime and the breach of trust.
• Appeal waivers with variance exceptions matter: Where a plea agreement preserves appeals of above-guidelines sentences, defendants can obtain appellate review—but the deferential standard remains a high bar.

Likely Influence on Future Cases

• Persuasive authority: Although unpublished (and thus nonbinding in the Eleventh Circuit), this opinion will likely be cited for the proposition that statistics are insufficient to prove disparity and for reaffirming strong deference to district courts in egregious recidivism scenarios.
• Child-pornography sentencing: Together with Irey, Hall, Kapordelis, Turner, and Johnson (2006), the opinion signals continuing receptivity to significant upward variances in child exploitation cases where § 3553(a) justifications are robustly articulated.
• Defense strategy: Counsel contesting variances should prepare detailed comparator dockets (ideally within the same district or circuit), highlight mitigating psychological treatment and monitoring plans, and address public-protection concerns with concrete safeguards.

Complex Concepts Simplified

• Substantive reasonableness: On appeal, courts ask whether the sentence is reasonable given all the circumstances and § 3553(a) factors. It is not a re-sentencing; the question is whether the district court abused its discretion.
• Upward variance vs. departure: A “variance” is a sentence outside the advisory Guidelines range based on the statutory § 3553(a) factors. A “departure” is an adjustment within the Guidelines framework. Here, the district court imposed an upward variance.
• Statutory maximum: The highest custodial term the statute authorizes for a given offense (e.g., 10 years for § 2252A(a)(5)(B) possession; 24 months for revocation of supervised release on a qualifying prior offense class).
• Supervised release revocation: Post-prison monitoring can be revoked if conditions are violated. The revocation sentence punishes the breach of trust and may be imposed consecutively to any sentence for new criminal conduct.
• § 3553(a)(6) unwarranted disparity: The law seeks to minimize unjustified differences in sentences among similarly situated defendants. To show a violation, a defendant must provide specific comparators with matching offense facts and offender characteristics—not just averages or national aggregates.
• Note on § 2260A: The information referenced 18 U.S.C. § 2260A (which in some contexts can add a consecutive term), but Suddeth’s plea acknowledged only a 10-year maximum on the possession count and a 2-year maximum on revocation, and the district court imposed those maxima. The additional § 2260A penalty did not apply in the sentence affirmed here.

Conclusion

United States v. Suddeth reinforces two settled but consequential sentencing principles in the Eleventh Circuit: district courts possess broad discretion to impose substantial upward variances when the § 3553(a) factors—especially immediate recidivism, risk to the public, and offense seriousness—so warrant; and defendants challenging such sentences on disparity grounds must provide concrete, “apples-to-apples” comparators rather than rely on generalized Sentencing Commission statistics. While unpublished, the decision adds persuasive weight to a line of cases upholding significant variances in non-production child-pornography cases and underscores the formidable deference appellate courts accord to well-reasoned sentencing decisions addressing protection of children and public safety.