Keene Harmless-Error Sentencing: Affirmance Where the District Court Would Impose the Same Sentence and the Sentence Remains Substantively Reasonable

I. Introduction

In United States v. Malik McKenzie (11th Cir. May 20, 2026) (unpublished), the Eleventh Circuit affirmed Malik Javier McKenzie’s convictions and an aggregate 595-month sentence arising from a traffic stop that escalated into a crash, flight, struggle with police, and recovery of controlled substances and a loaded Glock pistol from McKenzie’s person. During the subsequent jury trial, McKenzie attempted to bribe a juror and later pleaded guilty to obstructing justice by endeavoring to influence a juror; the cases were sentenced together and consolidated on appeal.

The appeal presented four principal issues: (1) whether the traffic stop was supported by reasonable suspicion; (2) whether evidence of McKenzie’s prior drug sales was admissible under Federal Rule of Evidence 404(b); (3) whether the evidence was sufficient to sustain the convictions; and (4) whether the sentence was procedurally unreasonable due to disputed Guidelines enhancements under U.S.S.G. § 3A1.2(c)(1) and U.S.S.G. § 3C1.2.

II. Summary of the Opinion

  • Suppression: The court held the traffic stop was supported by reasonable suspicion because the officer testified he observed a stop-sign violation, and the magistrate judge found the officer “wholly credible.”
  • Rule 404(b): The court upheld admission of a redacted plea agreement reflecting prior drug sales as probative of intent to distribute, with a limiting instruction reducing unfair-prejudice concerns.
  • Sufficiency: The court found ample evidence beyond the challenged officer’s testimony, including testimony from additional officers who recovered drugs and a firearm and expert testimony supporting intent to distribute, plus a stipulation to felon status.
  • Sentencing: Even assuming error in applying § 3A1.2(c)(1) and § 3C1.2, the court affirmed under Keene because the district court stated it would impose the same sentence regardless and the sentence remained substantively reasonable under the lower assumed range.

III. Analysis

A. Precedents Cited

1. Standard of review and Fourth Amendment traffic stops

  • United States v. Wilson, 979 F.3d 889 (11th Cir. 2020): Supplied the core traffic-stop rule—reasonable suspicion must be “particularized and objective,” and minor traffic violations qualify. It also provided the review framework for suppression rulings.
  • United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015): Anchored the deference owed to district court credibility findings, limiting appellate second-guessing unless testimony is impossible or facially implausible.

2. Rule 404(b) “inclusion” approach in drug cases

  • United States v. Booker, 136 F.4th 1005 (11th Cir. 2025): Controlled the Rule 404(b) analysis through a three-part test (relevance to a non-character issue, sufficient proof of the act, and Rule 403 balancing). Critically, it reinforced that prior drug dealing is “highly probative” of intent to distribute and often not unduly prejudicial, especially with a limiting instruction.

3. Sufficiency of the evidence and credibility limits on appeal

  • United States v. Fleury, 20 F.4th 1353 (11th Cir. 2021): Provided the “any rational trier of fact” standard for sufficiency review and the requirement to view evidence in the light most favorable to the prosecution.
  • United States v. Gregory, 128 F.4th 1228 (11th Cir. 2025): Supplied the principle that credibility determinations are for the jury and are revisited only if testimony is “unbelievable as a matter of law.” It also set out § 924(c) elements and the “facilitate or potential to facilitate” nexus.
  • United States v. Cremades, 160 F.4th 1296 (11th Cir. 2025): Provided the § 841(a)(1) elements and explained that intent to distribute may be inferred from drug quantity; also described constructive possession.
  • Greer v. United States, 593 U.S. 503 (2021): Supplied the § 922(g)(1) knowledge-of-status requirement (knowing felon status at the time of possession).

4. Sentencing reasonableness and the Keene harmless-error pathway

  • United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008), and Gall v. United States, 552 U.S. 38 (2007): Framed procedural reasonableness and common procedural error categories.
  • United States v. Riley, 995 F.3d 1272 (11th Cir. 2021), and United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Supplied the “range of choice” / “clear error of judgment” lens for reasonableness review and the “range of reasonable sentences” concept.
  • United States v. Olson, 127 F.4th 1266 (11th Cir. 2025): Reinforced district court discretion in weighting § 3553(a) factors and described the Keene approach as a “species of the harmless error doctrine.”
  • United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023), and United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Supported the proposition that explicit factor-by-factor discussion is unnecessary and failure to discuss mitigation does not show it was ignored.
  • United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): The decision’s central sentencing tool—if the district court would impose the same sentence regardless of the disputed Guidelines issue, and the sentence is still substantively reasonable under the defendant’s proposed range, the appellate court will not resolve the Guidelines dispute.

B. Legal Reasoning

1. Suppression: credibility-driven reasonable suspicion

The panel treated the stop-sign violation as sufficient reasonable suspicion under United States v. Wilson, and treated the officer’s testimony as dispositive because the magistrate judge made an express credibility finding. Under United States v. Maddox, the credibility determination received “substantial deference,” and the court concluded nothing about the testimony was physically impossible or facially implausible. The result is a straightforward reaffirmation: when an officer credibly testifies to personally observing a traffic infraction, the Fourth Amendment threshold for a stop is met.

2. Rule 404(b): prior drug sales to prove intent to distribute

Applying United States v. Booker, the panel held all three prongs satisfied. First, intent was genuinely at issue because McKenzie pleaded not guilty to a § 841(a)(1) count requiring intent to distribute. Second, a signed plea agreement in which McKenzie admitted the earlier conduct constituted sufficient proof for a jury to find the prior acts by a preponderance. Third, the court found probative value was not substantially outweighed by unfair prejudice, emphasizing the recognized probative force of prior drug dealing on intent and the presence of a limiting instruction restricting the jury’s use of the evidence.

3. Sufficiency: corroboration beyond the challenged officer

The panel rejected the attempt to re-litigate credibility, invoking United States v. Gregory to limit reversal to testimony “unbelievable as a matter of law.” It then highlighted independent evidence: another officer located drugs on McKenzie during a search; another recovered the Glock from his pocket; a DEA agent testified the drug weight and presence of scales were consistent with distribution and that distributors often carry firearms; and McKenzie stipulated he knew he was a felon (satisfying Greer v. United States). On these facts, the jury had a rational basis to find the elements of § 841(a)(1) (via United States v. Cremades), § 924(c) (via United States v. Gregory), and § 922(g)(1) proven beyond a reasonable doubt.

4. Sentencing: affirmance without deciding contested enhancements (Keene)

The opinion’s most consequential doctrinal move is its application of United States v. Keene to bypass the merits of disputed Guidelines enhancements. The district court expressly stated it would impose the same sentence regardless of whether § 3A1.2(c)(1) and § 3C1.2 applied. The panel then reconstructed the “assumed-correct” lower range: offense level 26, criminal history category V, yielding 110–137 months, but increased to 470–497 months due to the mandatory 30-year component on Count Two. The panel then upheld the 595-month term as substantively reasonable even as an upward variance, emphasizing the district court’s reliance on § 3553(a) factors: dangerousness of fentanyl/carfentanil, possession of a machinegun, flight and struggle, attempted juror bribery, and a violent criminal history—framed as a need for deterrence, respect for law, and protection of the public.

C. Impact

  • Sentencing litigation strategy: The decision underscores that where a district court makes a clear “same sentence regardless” statement, Guidelines disputes may become effectively academic on appeal if the resulting sentence is defensible under § 3553(a). This increases the practical importance of (i) demanding clarity about the alternative sentence and (ii) building a record that an upward variance would be unreasonable under the defendant’s proposed range.
  • Rule 404(b) in drug cases: Consistent with United States v. Booker, the opinion signals continued receptiveness to prior drug-sales evidence to prove intent—particularly when presented via a streamlined, redacted document and paired with a limiting instruction.
  • Credibility and appellate review: The case reiterates that suppression and sufficiency arguments premised on officer credibility face steep odds when the trial court or jury has made findings and there is corroborating testimony or physical evidence.

IV. Complex Concepts Simplified

  • Reasonable suspicion: A lower standard than probable cause; it requires specific, objective facts suggesting a legal violation. A single observed traffic infraction can suffice.
  • Rule 404(b) “other acts” evidence: Prior bad acts generally cannot be used to show “he’s the type of person who would do this,” but can be used for permitted purposes like proving intent or knowledge—so long as it is sufficiently proven and not unfairly prejudicial.
  • Rule 403 balancing: Even relevant evidence can be excluded if unfair prejudice substantially outweighs probative value. Limiting instructions often mitigate this risk.
  • Sufficiency of evidence review: Appellate courts do not ask whether they believe the evidence; they ask whether any rational juror could have found guilt beyond a reasonable doubt, viewing the record in the government’s favor.
  • Keene harmless-error approach (as applied here): If the judge says the same sentence would be imposed regardless of a disputed Guidelines issue, the appellate court can assume the defendant’s lower Guidelines range is correct and affirm anyway if the sentence is still substantively reasonable under that lower range.

V. Conclusion

United States v. Malik McKenzie is a layered affirmance, but its most practically significant contribution is its Keene-based handling of Guidelines disputes: where the sentencing court clearly announces an alternative identical sentence and the term is substantively reasonable even under the defendant’s preferred range, the Eleventh Circuit will affirm without resolving the enhancement controversy. Alongside this, the opinion continues the circuit’s established trajectory on (i) deference to credibility findings in suppression rulings, (ii) inclusive admission of prior drug-dealing evidence to prove intent under Rule 404(b), and (iii) stringent limits on sufficiency challenges built primarily on attacks on officer credibility.