Major Upward Variances at De Novo Resentencing Post‑Taylor: Eleventh Circuit Upholds 240-Month Term Based on Aged-Out Criminal History and Public Protection

Introduction

In United States v. John Edwin Corn, Jr., the Eleventh Circuit affirmed a substantial upward variance imposed at a de novo resentencing following the vacatur of a 18 U.S.C. § 924(c) conviction under United States v. Taylor. Although the advisory Guidelines recommended 87–108 months for the remaining Hobbs Act robbery and attempted robbery counts, the district court reimposed a 240-month sentence—representing a 122% upward variance—and the court of appeals held that this sentence was substantively reasonable.

The decision underscores three central themes in federal sentencing: (1) district courts’ broad discretion to vary upward when criminal history and public-safety concerns are underrepresented by the Guidelines; (2) the “sentencing package” doctrine’s elasticity at de novo resentencing after a count is vacated; and (3) the limited, highly deferential appellate review for substantive reasonableness under Gall and its Eleventh Circuit progeny. While unpublished, the opinion provides a detailed roadmap for how courts may justify large variances—particularly where prior convictions have “aged out” of the criminal history score yet remain pertinent under 18 U.S.C. § 3553(a).

Summary of the Opinion

Corn was convicted in 2014 of one Hobbs Act robbery, two attempted Hobbs Act robberies, and one § 924(c) count for brandishing a firearm during and in relation to a crime of violence (the October 13 attempted robbery). In 2022, the Supreme Court held in Taylor that attempted Hobbs Act robbery is not a “crime of violence” under § 924(c)’s elements clause; the residual clause had already been invalidated in United States v. Davis. As a result, the district court granted Corn’s second § 2255 motion, vacated the entire sentence, and ordered a de novo resentencing on the remaining counts.

At resentencing, the Guidelines range for the robbery/attempted robbery counts was calculated at 87–108 months (offense level 28; criminal history category II, reflecting post‑2023 Guideline amendments). The government again sought an upward variance. After considering Corn’s allocution, acceptance of responsibility, health, and asserted rehabilitation, the district court opted to reimpose 240 months on the robbery counts (the statutory maximum per count, without stacking). Corn appealed, arguing the sentence was substantively unreasonable, particularly given the large variance from the advisory range and his mitigating evidence.

The Eleventh Circuit affirmed. Applying abuse-of-discretion review, it held that the district court gave a sufficiently compelling and individualized rationale grounded in § 3553(a)—especially the nature and circumstances of the offense, Corn’s extensive criminal history (including numerous aged-out convictions), and the needs for deterrence and public protection. The panel also approved the district court’s reliance on the sentencing package doctrine and rejected claims that the court’s failure to explicitly restate the new Guidelines range rendered the sentence unreasonable.

Analysis

Precedents Cited and Their Influence

United States v. Booker (2005): Made the Guidelines advisory, directing courts to “consider” the ranges but to impose sentences consistent with § 3553(a). Here, Booker’s framework underlies the district court’s authority to vary upward after calculating the advisory range.
Gall v. United States (2007): Established abuse-of-discretion review for substantive reasonableness and made clear that out-of-Guidelines sentences are not presumptively unreasonable. Gall also teaches that major variances require more substantial justifications, but without any rigid mathematical tie between percentage deviation and justification. The panel leaned on Gall to emphasize deferential review and the acceptability of significant variances with adequate reasons.
United States v. Irey (11th Cir. 2010) (en banc): Articulated when a variance constitutes an abuse of discretion (failure to consider significant factors, reliance on improper factors, clear error of judgment). It also echoed that major variances warrant major justifications. The panel cited Irey, through Butler, to define the abuse-of-discretion framework.
United States v. Rosales-Bruno (11th Cir. 2015): Reinforced that appellate review asks whether a sentence is “in the ballpark of permissible outcomes,” and recognized district courts’ “broad leeway” to weigh criminal history heavily. The panel relied on Rosales-Bruno to validate the district court’s emphasis on Corn’s long, serious record, including aged-out convictions.
United States v. Butler (11th Cir. 2022): Confirmed that courts may impose upward variances when the Guidelines understate the seriousness of a defendant’s criminal history and that courts may weigh some § 3553(a) factors more than others. The panel used Butler to approve giving extra weight to criminal history under § 3553(a)(1).
Pepper v. United States (2011): Authorized consideration of post-sentencing rehabilitation at resentencing. The panel credited the district court for acknowledging Corn’s allocution and recent prison conduct but held the court permissibly found those mitigators outweighed.
United States v. Taylor (2022) and United States v. Davis (2019): Taylor barred attempted Hobbs Act robbery as a § 924(c) “crime of violence” under the elements clause; Davis had invalidated the residual clause. These cases prompted vacatur of Corn’s § 924(c) conviction and the de novo resentencing.
United States v. Fowler (11th Cir. 2014) and United States v. Stinson (11th Cir. 1996): Recognized the “sentencing package” doctrine: when a count is vacated, the district court may reconstruct the overall sentence to reflect its original intent consistent with § 3553(a). The panel applied this doctrine to explain why the district court could reconfigure the remaining counts and why the new sentence—effectively seven years shorter without § 924(c)—was within its discretion.

Legal Reasoning

The court’s reasoning proceeds in familiar post‑Booker, post‑Gall steps:

Guidelines calculation: The probation office correctly computed the advisory range at 87–108 months after Taylor vacated the § 924(c) count and after Amendment 821 reduced Corn’s criminal history to Category II (reflecting changes to status/recency scoring).
Variance decision under § 3553(a): The district court emphasized:
- § 3553(a)(1): The “nature and circumstances” of three robberies at age 62, and a lifetime of serious criminal conduct beginning at 17. Although many convictions “aged out” for scoring purposes, the court found they remained probative of recidivism risk and the Guidelines underweighted both the multi-robbery spree and Corn’s longstanding pattern.
- § 3553(a)(2)(A)–(C): The need for a sentence reflecting seriousness, promoting respect for the law, providing just punishment, deterring Corn specifically, and protecting the public. The court explicitly found it “cannot be assured” that Corn would not reoffend if released early, pointing to the seriousness and late-life timing of the robberies.
Mitigation considered but outweighed: The district court credited Corn’s acceptance of responsibility (absent in 2014), his allocution, lack of recent disciplinary incidents, poor health, and traumatic upbringing (including abuse at the Dozier School for Boys). It expressly stated that these matters did not outweigh the public‑safety and deterrence concerns. On health, the court found his conditions “typical” for his age and not an impediment to continued incarceration.
Articulation adequacy and reference to the range: Although the court did not separately restate the updated 2024 range, it incorporated its earlier sentencing rationale and imposed the same 240 months on the robbery counts. Because the original (2014) advisory range on those counts was actually lower than the updated range, the panel found no prejudice from the omission and concluded the explanation sufficed under Gall.
Sentencing package doctrine: The panel noted the overall sentence is about seven years shorter than the original total, and the district court could have stacked counts or otherwise reconstructed the package to approximate the prior 27-year term. Electing not to do so underscores a reasoned exercise of discretion, not an abuse of it.

Applying the Eleventh Circuit’s abuse-of-discretion test (Butler/Irey), the panel rejected arguments that the district court ignored significant mitigating factors, relied on improper factors, or committed a clear error of judgment. In particular, the court approved heavy reliance on criminal history—including aged-out convictions—to support a major variance, and reiterated that the district court’s allocation of weight among § 3553(a) factors is “committed to [its] sound discretion.”

Impact

The opinion’s practical effects are significant for resentencings following Taylor/Davis and for variance practice more broadly:

De novo resentencing after § 924(c) vacatur: District courts may reconstruct the sentencing package and impose substantial upward variances on remaining counts, provided they articulate case‑specific § 3553(a) reasons. Defendants should anticipate that time associated with a vacated § 924(c) term can, in part, be “backfilled” through variances on surviving counts.
Criminal history as an anchor for large variances: The decision reinforces that aged‑out convictions, while not scored, can justify substantial upward variances when they meaningfully illuminate recidivism risk and the seriousness of a defendant’s criminal trajectory. This is especially salient after Amendment 821 lowered certain criminal history scores.
No presumption against large variances: Outside‑Guidelines sentences—even 100%+ above the range—are reviewed for abuse of discretion without any heightened standard. A “major variance” requires a strong, individualized explanation, but the justification need not be mathematically proportional to the percentage deviation.
Mitigation limits in high‑risk profiles: Advanced age, common age‑related health conditions, and commendable prison conduct may carry diminished weight where the record shows lifelong, serious offending and late‑life recidivism. Pepper permits consideration of rehabilitation; this case illustrates when courts may reasonably find it insufficient.
Articulation best practices: Although the panel found no reversible error in the district court’s incorporation by reference and omission of the precise updated range, district courts should still explicitly state the advisory range and directly tie variances to § 3553(a) to insulate sentences on appeal.

Complex Concepts Simplified

Hobbs Act robbery and attempt: Federal robbery affecting interstate commerce. “Attempt” involves intent plus a substantial step. After Taylor, attempted Hobbs Act robbery is not a § 924(c) “crime of violence.”
18 U.S.C. § 924(c) “crime of violence”: Enhances punishment for using/carrying/brandishing a firearm during a crime of violence. The “elements” clause requires that the predicate offense has as an element the use, attempted use, or threatened use of physical force. The residual clause is unconstitutional (Davis).
De novo resentencing: When a sentence (or count) is vacated, the court resentences from scratch on the remaining counts, recalculating the Guidelines and reweighing § 3553(a) factors.
Sentencing package doctrine: Multi‑count sentences are viewed as a package. If one count is vacated, the court may adjust the entire package to reflect its overall intent consistent with § 3553(a).
Departure vs. variance: A “departure” is a Guidelines‑authorized move from the range under Chapter 5K. A “variance” is a non‑Guidelines adjustment based on § 3553(a). Courts address departures first, then variances.
Aged‑out convictions: Prior convictions too old to score points under the Guidelines still may be considered under § 3553(a) to assess history, characteristics, and risk.
Substantive reasonableness review: Appellate courts ask whether the sentence is within the range of “permissible outcomes” given the § 3553(a) factors; they do not reweigh factors de novo.
Amendment 821 (2023): Narrowed the imposition of status/recency points (e.g., for committing an offense while on supervision), often reducing criminal history categories. Even so, courts may compensate via § 3553(a) variances if they find underrepresentation.

Conclusion

United States v. Corn confirms that, at de novo resentencing following Taylor-vitiated § 924(c) convictions, district courts retain wide discretion to impose major upward variances where the advisory Guidelines understate the seriousness of the offense conduct and the defendant’s criminal history, including aged‑out convictions. Anchored in § 3553(a)’s aims—deterrence, public protection, and just punishment—the Eleventh Circuit viewed a 240‑month sentence (122% above the advisory range) as “in the ballpark of permissible outcomes,” particularly given Corn’s late‑life robbery spree and extensive prior record.

The opinion also illustrates how the sentencing package doctrine allows courts to recalibrate sentences after partial vacatur, how Pepper’s rehabilitation principle operates in practice, and why explicit, individualized reasoning remains key to sustaining large variances on appeal. For defendants facing resentencing post‑Taylor and for practitioners navigating variances in the Eleventh Circuit, Corn stands as a clear endorsement of muscular § 3553(a) discretion where public‑safety and criminal‑history concerns predominate.