Invited-Error Bar to “Rehabilitation-Based Imprisonment” Challenges in Federal Sentencing
1. Introduction
In United States v. Brian Joseph McKay, the Eleventh Circuit addressed a recurring federal sentencing issue: whether a district court improperly considered a defendant’s need for rehabilitation when deciding the length of a prison term. The appeal arose from a child-pornography prosecution in which McKay pleaded guilty to receipt of child pornography after a search (triggered by a tip from NCMEC) uncovered extensive contraband and distribution-related conversations.
The case also featured significant post-plea conduct. While on pretrial release and barred from possessing connected devices, McKay was found with an internet-connected phone containing additional child pornography, failed to self-surrender on a violation warrant, and attempted suicide. At sentencing, the district court discussed public protection, offense seriousness (including the pretrial violation), and also referenced McKay’s need for mental health and sex-offender counseling when considering where he could “best get” services.
The key appellate questions were:
- Did the district court commit procedural sentencing error by considering rehabilitation when imposing imprisonment?
- If so, was review barred by the invited-error doctrine because McKay himself urged rehabilitation as a rationale for the prison term he requested?
- Even absent invited error, could McKay satisfy plain-error review—particularly the requirement that the error affected substantial rights?
2. Summary of the Opinion
The Eleventh Circuit affirmed. It held:
- Error occurred: The district court “clearly considered rehabilitation” in deciding the prison sentence, which is impermissible.
- No reversal: McKay “invited” that error by arguing at sentencing that the statutory minimum (five years) was sufficient time for “classes and counseling and medication and rehabilitation.” Under invited error, he could not complain on appeal.
- Alternative holding (plain error): Even if invited error did not apply, McKay failed the third prong of plain-error review because rehabilitation was a “minor fragment” of the court’s reasoning; other factors (notably the pretrial violation and need to incapacitate) drove the sentence.
3. Analysis
3.1. Precedents Cited
The panel’s reasoning is built almost entirely from existing Eleventh Circuit standards governing sentencing review, plain error, and invited error, plus the circuit’s rehabilitation-at-sentencing rule.
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United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011)
Role: Establishes abuse-of-discretion review for procedural and substantive reasonableness. The opinion uses Wetherald to frame the general appellate standard before turning to plain error due to lack of a preserved objection. -
United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009)
Role: Provides that issues raised for the first time on appeal are reviewed for plain error—critical here because McKay responded “nothing new” when asked for objections after pronouncement of sentence. -
United States v. Dudley, 5 F.4th 1249, 1255 (11th Cir. 2021)
Role: Supplies the four-part plain-error test. The panel applies this structure when explaining why McKay fails even if invited error does not bar review. -
United States v. Vandergrift, 754 F.3d 1303, 1312 (11th Cir. 2014)
Role: Two distinct functions: (1) clarifies the “substantial rights” requirement (“affected the outcome”); and (2) provides language used by the panel to characterize a sentencing court’s brief rehabilitation comments as a “minor fragment” compared to other decisive considerations. -
United States v. Cobb, 842 F.3d 1213, 1222 (11th Cir. 2016)
Role: Defines “invited error” as occurring when a party induces the district court into making the alleged mistake. This is the gateway doctrine that blocks appellate relief once the defendant affirmatively encouraged the challenged approach. -
United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006)
Role: States the operative consequence: invited error “precludes” the appellate court from invoking plain-error reversal. The panel quotes Love for the “cardinal rule” that a party cannot challenge an error it invited. -
United States v. Pendergrass, 995 F.3d 858, 881 (11th Cir. 2021)
Role: Reinforces that appellate courts cannot review an alleged error that the party “affirmatively encouraged.” Used to connect McKay’s own sentencing allocution to the doctrine’s application. -
United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)
Role: Describes procedural unreasonableness categories, including failing to consider sentencing factors or inadequately explaining reasons. This frames rehabilitation-based error as a type of procedural error. -
United States v. Al Jaberi, 97 F.4th 1310, 1330 (11th Cir. 2024)
Role: Confirms that a district court need not explicitly address each § 3553(a) factor; acknowledgment of consideration suffices. Though not central to the outcome, it contextualizes what a “procedurally reasonable” explanation generally requires. -
United States v. King, 57 F.4th 1334, 1343-44 (11th Cir. 2023)
Role: The controlling substantive rule: rehabilitative needs may not be considered “even as one factor among many” to impose or extend a prison sentence. The panel relies on King to label the district court’s rehabilitation consideration as “error” and “obvious.” -
United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019)
Role: Addresses when an error is “plain” in the absence of directly controlling precedent. The panel cites Corbett while explaining the “obviousness” inquiry, then finds obviousness satisfied here in light of King.
In addition to case law, the court repeatedly anchors its reasoning in 18 U.S.C. § 3553(a), listing core sentencing purposes and considerations (nature of the offense, history and characteristics, deterrence, public protection).
3.2. Legal Reasoning
(a) The panel finds a rehabilitation-based sentencing error.
The district court, while addressing McKay’s “needed services,” referenced mental health and sex-offender counseling and posed the question
of whether McKay could “best get that” “out on the street” or “in the prison system.” Although the district court did not explicitly declare
rehabilitation as the “purpose” of imprisonment, the Eleventh Circuit treated the statements as clear consideration of rehabilitation
“in deciding to impose the prison sentence.” Under United States v. King, that is impermissible.
(b) The invited-error doctrine blocks relief.
The opinion’s pivotal move is attributing the rehabilitation framing to McKay himself. During allocution, he argued that five years
should suffice because he did not need more than five years for “classes and counseling and medication and rehabilitation,” and that
it does not take “20 years to rehabilitate or correct.” The panel characterizes this as an express request that the court calibrate
the prison term by reference to rehabilitation time, thus “inviting” the court to consider rehabilitation “as a purpose of the prison term.”
Under Love, Cobb, and Pendergrass, that forecloses appellate review.
(c) The alternative plain-error holding turns on “substantial rights.”
Even if invited error did not apply, the panel held McKay could not satisfy the third prong of plain error (Dudley),
as elaborated in Vandergrift: he failed to show the rehabilitation error “affected the outcome.”
The sentencing transcript, in the panel’s view, showed that the district court was driven primarily by (i) the nature and circumstances
of the offense, and (ii) the pretrial violation demonstrating that “but for incapacitation” McKay would continue offending—something the court
“can only” stop through a sentence that “doesn’t allow” continued conduct. Rehabilitation discussion, by contrast, was “only a small part.”
(d) The opinion also signals how acceptance-of-responsibility dynamics can matter.
The district court observed that the pretrial violation was “already reflected in the guidelines in some way because but for [it]
[McKay] would have gotten the benefit of an acceptance of responsibility” reduction. While not dispositive on appeal,
this observation reinforces that the court understood and engaged with Guidelines mechanics and did not treat rehabilitation as the driver
of the chosen 180-month sentence (already below the adjusted 210–240 month range).
3.3. Impact
1) Sentencing advocacy risk: defendants can forfeit Tapia-type arguments by their own framing.
Practically, the case is a cautionary precedent for allocution and mitigation strategy. When a defendant argues for a shorter prison term
on the ground that a given number of years is “enough to rehabilitate,” the defendant risks triggering invited error if the judge responds in kind.
The opinion thus incentivizes careful separation between:
- arguments about conditions and treatment recommendations during imprisonment (often permissible to discuss), and
- arguments that the length of imprisonment should be chosen to promote or complete rehabilitation (impermissible under King).
2) Appellate posture: a brief rehabilitation reference may be harmless under plain error.
The alternative holding underscores that even “obvious” rehabilitation error may not warrant reversal absent a concrete showing that
the sentencing length would likely have been different. Where the record contains strong, independent reasons—here, recidivist conduct
during pretrial release and public-protection/incapacitation concerns—plain-error relief is difficult.
3) Child-pornography sentencing: pretrial misconduct can become a dominant § 3553(a) factor.
Although the panel did not announce a new child-pornography-specific rule, the reasoning highlights how post-indictment and pre-sentencing
misconduct—especially repetition of the charged conduct—can be treated as powerful evidence supporting incapacitation and higher sentences,
even where the court views the underlying offense as “towards the bottom end” of the spectrum.
4. Complex Concepts Simplified
- “Procedural reasonableness”: Whether the sentencing process was done correctly—proper Guidelines calculation, consideration of § 3553(a) factors, and a sufficient explanation. A sentence can be “procedurally” wrong even if the number of months seems plausible.
- “Plain error”: A demanding appellate standard used when the defendant did not properly object in the district court. The defendant must show not just a mistake, but an obvious one that likely changed the outcome and seriously undermines the proceeding’s integrity.
- “Invited error”: If a party affirmatively encouraged the trial court to take a step, the party generally cannot later claim that step was reversible error on appeal. It is stronger than mere forfeiture; it is a bar grounded in fairness and waiver-like principles.
- Rehabilitation and imprisonment (Eleventh Circuit rule stated via United States v. King): A judge may not decide to impose or lengthen a prison term in order to promote rehabilitation—“even as one factor among many.” Rehabilitation can still be relevant to other sentencing components (e.g., supervision conditions), and courts may recommend treatment, but they cannot select prison time as the vehicle to achieve rehabilitation.
- “Substantial rights”: In plain-error review, it usually means the defendant must show a reasonable probability the sentence would have been lower (or otherwise different) absent the error.
5. Conclusion
United States v. Brian Joseph McKay reinforces two practical rules in Eleventh Circuit sentencing appeals. First, while it is “error” for a district court to consider rehabilitation when deciding to impose or extend a prison term, a defendant who urges the court to use rehabilitation as a yardstick for the prison term “invites” the error and cannot obtain reversal. Second, even without invited error, a defendant seeking relief under plain-error review must show that rehabilitation considerations likely changed the sentence—an especially difficult showing where the record reflects strong, independent § 3553(a) reasons such as incapacitation driven by repeated offending during pretrial release.
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