Keene Harmless-Error Shield Applies Even When the Alternative Sentence Is Prompted by the Government: United States v. Parks (11th Cir. 2025)

Keene Harmless-Error Shield Applies Even When the Alternative Sentence Is Prompted by the Government: United States v. Parks (11th Cir. 2025)

Introduction

In United States v. Santino Demarco Parks, the Eleventh Circuit (non-argument calendar; unpublished) affirmed an 84-month sentence for an attempted Hobbs Act robbery and felon-in-possession case arising from a thwarted jewelry store robbery in Atlanta. The appeal raised two core challenges: (1) the district court’s refusal to award a minor-role reduction under U.S.S.G. § 3B1.2(b), and (2) the substantive reasonableness of the sentence, including alleged unwarranted disparities with codefendants’ 63-month sentences.

The panel did not resolve the minor-role issue. Instead, it applied the Eleventh Circuit’s harmless-guidelines-error framework from United States v. Keene and held that any potential guidelines error was harmless because the district court expressly stated it would impose the same sentence even if it resolved the guidelines objection in Parks’s favor—and the 84-month sentence would be reasonable under the resulting lower “hypothetical” guidelines range. The court also rejected Parks’s disparity argument, emphasizing that § 3553(a)(6) concerns “unwarranted” disparities among similarly situated defendants, which his codefendants were not.

Summary of the Opinion

  • Facts and procedural posture: Parks was recruited as a getaway driver for a planned jewelry store robbery. The FBI, using a wiretap on a contraband inmate phone, intercepted the “green light” call and arrested Parks and others before they left the rental car. Agents recovered trash bags, two sledgehammers, and two loaded handguns (one with an extended magazine).
  • Charges and plea: Parks was charged with conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)); conspiracy to use firearms during a crime of violence (18 U.S.C. § 924(o)); attempted Hobbs Act robbery (18 U.S.C. §§ 1951(a), 2); and felon-in-possession (18 U.S.C. § 922(g)(1)). The government dismissed § 924(o). Parks pleaded guilty, without a written plea agreement, to the Hobbs Act conspiracy, the attempt, and the § 922(g) count.
  • Guidelines calculation (PSI adopted by the court): Counts 1 and 3 were grouped; that group controlled over § 922(g). Base offense level 20 (§ 2B3.1(a)), +5 for possession of firearms (§ 2B3.1(b)(2)(C)), +2 for intended loss exceeding $95,000 (§ 2B3.1(b)(7)(C)), −3 for acceptance (§ 3E1.1(a),(b)), for a total offense level 24. With 14 criminal history points (CHC VI), the advisory range was 100–125 months.
  • Minor-role objection: Parks sought a § 3B1.2(b) two-level reduction as a minor participant. The district court denied, finding he understood the plan, anticipated sharing proceeds, received pre-robbery instructions, and knew weapons would be used.
  • Sentence imposed: 84 months’ imprisonment on each count, concurrent, with 3 years of supervised release. The court varied downward based on a conceptual “one criminal history level” reduction and additional mitigation (difficult upbringing, family support), while emphasizing the offense’s potential for violence and the need to deter recidivism, promote respect for law, and avoid unwarranted disparities.
  • Keene alternative-sentence statement: In response to a government question, the district court expressly stated it would impose the same 84-month sentence even if it had sustained the minor-role objection.
  • Holdings on appeal:
    • Any guidelines error was harmless under Keene: the court would have imposed the same sentence; and 84 months would be reasonable under the hypothetical lower range (level 22, CHC VI: 84–105 months). The panel noted it is “inconsequential” that the government prompted the alternative-sentence statement (citing Grushko).
    • The sentence was substantively reasonable: the district court carefully weighed the § 3553(a) factors, including the danger posed by loaded firearms during business hours, Parks’s background, and the need to avoid unwarranted disparities. Comparisons to codefendants failed because they were not similarly situated (fewer counts, lesser criminal histories).
    • Additional reasonableness indicators included that 84 months falls within the hypothetical 84–105 range (offense level 22, CHC VI) and is well below the cumulative statutory maximum of 55 years. Even assuming the court’s variance to CHC V and a two-level reduction (hypothetical range 77–96 months), 84 months remains within-range and reasonable.

Analysis

Precedents Cited and Their Influence

  • Williams v. United States, 503 U.S. 193 (1992): Establishes harmless error in sentencing: a guidelines error is not grounds for reversal if it did not affect the district court’s selection of the sentence. The panel uses this backbone to frame harmlessness where the district court’s expressed sentencing choice moots any guidelines dispute.
  • United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): Provides the Eleventh Circuit’s two-step harmless-error framework for disputed guidelines issues: (1) Did the district court say it would have imposed the same sentence if it had decided the guidelines issue the other way? and (2) Would the resulting sentence be reasonable under the hypothetical lower/higher range? Parks is a straightforward application. The district court’s explicit statement and the within-hypothetical-range sentence made any error harmless.
  • United States v. Grushko, 50 F.4th 1, 19 n.7 (11th Cir. 2022): Endorses the practice of the government inviting a Keene-type alternative-sentence pronouncement. Parks extends that practicality, calling it “inconsequential” that the statement was elicited by the government at sentencing.
  • Gall v. United States, 552 U.S. 38 (2007): Sets the deferential abuse-of-discretion standard for substantive reasonableness under the totality of circumstances. The panel applies Gall to uphold the district court’s § 3553(a) analysis and downward variance.
  • United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc): Governs role adjustments and their clear-error review. Although the panel does not reach the merits of the minor-role claim, it situates the issue under De Varon’s standard.
  • United States v. Azmat, 805 F.3d 1018 (11th Cir. 2015), and United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009): Address § 3553(a)(6)’s unwarranted disparity factor. Defendants must be similarly situated; more serious or more numerous counts and higher criminal history can justify different sentences. Parks’s codefendants pled to fewer counts and had lower criminal history categories, undermining any “apples-to-apples” comparison.
  • United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015): Observes that disparities among codefendants generally do not establish reversible error. The panel leans on this to discount Parks’s codefendant comparisons.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Articulates the framework for assessing whether a district court abused its discretion in weighing § 3553(a) factors. The panel notes no improper factor or clear error of judgment; rather, a thorough and reasoned variance.
  • United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): Confirms district courts’ discretion to decide how much weight to give each § 3553(a) factor. This undergirds the panel’s deference to the district court’s weighing of seriousness, deterrence, and mitigation.
  • United States v. Muho, 978 F.3d 1212 (11th Cir. 2020): Notes that within-Guidelines sentences or sentences below statutory maximums are generally reasonable. Parks’s 84-month sentence fits both the hypothetical range and is far below the aggregated statutory maxima.

Legal Reasoning

  1. Harmlessness of any guidelines error (Keene/Williams): The district court explicitly stated that it would have imposed the same 84-month sentence even if Parks received the two-level minor-role reduction. Under Keene, that satisfies step one. For step two, the panel tested the sentence against a hypothetical offense level 22, CHC VI range of 84–105 months; 84 months sits at its bottom, rendering it reasonable. The panel further observed that the sentence remains reasonable even under a more defense-favorable hypothetical (offense level 22 with a variance to CHC V: 77–96 months), because 84 months falls within that range as well.
  2. Substantive reasonableness: Using Gall’s deferential standard, the panel affirmed the district court’s § 3553(a) analysis. The sentencing judge emphasized:
    • The offense’s dangerousness: a planned armed robbery during business hours with “serious weapons,” narrowly averted before anyone was “shot and killed.”
    • Parks’s personal history and recidivism: early troubles, a prior significant state sentence, and a return to crime.
    • Mitigation: difficult upbringing and family responsibilities, acknowledged via a downward variance (including a conceptual one-level reduction in criminal history plus additional downward movement).
    • Parity: an expressed aim to avoid unwarranted disparities, comparing Parks to codefendants and similarly situated federal defendants, and finding 84 months “fair.”
    The court’s variance from the 100–125 month advisory range to 84 months reflected this balancing and was adequately explained.
  3. Disparity under § 3553(a)(6): Parks’s codefendant comparison (63-month sentences for Asbury and Mark Oliver) failed because they were not similarly situated: they pled to fewer counts (Count 3 only) and had less serious criminal histories (Asbury at CHC III versus Parks at CHC VI). Under Azmat/Docampo/Cavallo, such differences justify sentence divergence and do not establish “unwarranted” disparity.

Impact and Practical Significance

  • Strengthening the Keene prophylaxis: Parks underscores a well-traveled but potent path for insulating sentences from guidelines litigation: the district court’s explicit declaration that it would impose the same sentence even if it ruled the guidelines objection in the defendant’s favor. Parks goes further by clarifying that it is immaterial that the prosecutor prompted the court to make that statement. Expect continued—and perhaps more systematic—prosecutorial requests for alternative-sentence pronouncements in the Eleventh Circuit.
  • Defense strategy recalibration: When the court gives a Keene alternative sentence, appellants must pivot to the second prong: building a record and argument that the chosen sentence is unreasonable under the hypothetical lower range. Defense counsel should be prepared to:
    • Develop robust § 3553(a) mitigation independent of the guidelines issue.
    • Offer comparator cases with truly similar offense conduct, plea posture, and criminal history—not just codefendants.
    • Where possible, invite the court to tie the sentence to the correctly calculated range and to explain why the guidelines matter to the variance, thereby sharpening procedural and substantive reasonableness review.
  • Minor-role litigation in practice: Although the panel did not reach § 3B1.2, the district court’s comments preview De Varon considerations: knowledge of the scheme, participation in planning/execution, expectation of proceeds, and awareness of weapon use weigh against a minor-role reduction. In cases with similar facts, raising minor-role may have limited practical effect if the court memorializes an alternative sentence.
  • Codefendant disparity claims remain uphill: Parks reiterates that § 3553(a)(6) is focused on unwarranted disparities among similarly situated defendants. Different charges, plea agreements, and criminal histories matter. Counsel should be prepared with “apples-to-apples” comparators—or risk the claim being dismissed as inapposite.
  • Unpublished but persuasive: While not binding precedent, this per curiam opinion is a practical, citable (persuasive) reaffirmation of Eleventh Circuit sentencing doctrine. District judges can rely on it to justify giving a Keene alternative sentence. Prosecutors can cite it to request such statements. Defenders should anticipate it.

Complex Concepts Simplified

  • Advisory Sentencing Guidelines: The Guidelines propose a sentencing range based on an offense level and a criminal history category. They are advisory, not mandatory, but courts must calculate and consider them before varying based on statutory factors.
  • Grouping and offense level in robbery attempts: Multiple counts are grouped when they involve substantially the same harm. For robbery (§ 2B3.1), enhancements can apply for firearm possession (+5 if possessed/brandished) and loss amount (here, intended loss over $95,000 added +2). An attempt can use intended loss, reflecting what the defendant intended to take—even if the attempt was thwarted.
  • Minor-role reduction (§ 3B1.2): A defendant who is substantially less culpable than the average participant may receive a 2–4 level reduction. Courts look at understanding of the crime’s scope, planning role, decision-making authority, actual acts performed, and expected benefit. Being a “getaway driver” does not automatically make one “minor” if those factors show meaningful participation and knowledge.
  • Harmless guidelines error (Keene framework): Even if the guidelines were miscalculated, no reversal is needed if (1) the judge says on the record the sentence would be the same with the corrected calculation, and (2) that sentence is reasonable under the corrected (hypothetical) range.
  • Standards of review:
    • Clear error (fact-heavy issues like role-in-offense): the appellate court defers to the district court unless firmly convinced a mistake was made.
    • Abuse of discretion (substantive reasonableness): the appellate court defers to the district court’s balancing of § 3553(a) factors unless it gave weight to an improper factor, ignored a relevant factor, or made a clear error of judgment.
  • Unwarranted disparities (§ 3553(a)(6)): The law aims to avoid unwarranted sentence differences. Differences are warranted where defendants are not similarly situated—e.g., different charges, plea bargains, criminal histories, or roles.
  • Statutory maximums as reasonableness indicators: A sentence far below the statutory maximum is not automatically reasonable but is a common indicator that it is not excessive, especially when also within or near a relevant guidelines range.

Conclusion

United States v. Parks reinforces a durable Eleventh Circuit sentencing doctrine: when a district court explicitly states it would impose the same sentence regardless of a disputed guidelines issue, and that sentence is reasonable under the hypothetical lower range, any guidelines error is harmless. Parks adds a practical gloss—such an alternative-sentence statement remains effective even when prompted by the government. The opinion also restates that § 3553(a)(6) disparity claims require truly comparable defendants; differing counts of conviction and criminal history can justify divergent sentences.

For sentencing practitioners, the message is clear. Prosecutors can and likely will seek Keene alternative-sentence pronouncements to “inoculate” sentences against guidelines challenges. Defense counsel should anticipate this, focus on developing a persuasive § 3553(a) record that shows unreasonableness even under the defense-favorable hypothetical, and marshal comparators that are genuinely “apples to apples.” District courts, for their part, can reduce the risk of remand by making the guidelines calculation, thoroughly explaining § 3553(a) factors, and, where appropriate, stating an alternative sentence that would apply even if a guidelines dispute were resolved differently. In sum, Parks is a practical, persuasive reaffirmation of harmless-error principles and a cautionary tale about the limits of codefendant disparity arguments in the Eleventh Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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