No Unwarranted Disparity Shown by Aggregate Statistics: Eleventh Circuit Affirms Statutory-Maximum Upward Variance and Consecutive Revocation Term for Immediate Recidivism in Child-Pornography Case

Introduction

In United States v. Brad Tyler Suddeth, Nos. 24-13041 & 24-13042 (11th Cir. Sept. 30, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed a combined 144-month sentence imposed on a defendant who, immediately after completing a 97-month prison term for possession of child pornography and starting 25 years of supervised release, returned to viewing and possessing child pornography and engaging in inappropriate online communications with minors. The panel upheld both an upward variance to the statutory maximum (120 months) for a new possession count and a consecutive statutory-maximum term (24 months) upon revocation of supervised release.

The defendant’s sole appellate claim was substantive unreasonableness—principally that his sentence created an unwarranted disparity under 18 U.S.C. § 3553(a)(6) when compared to similarly situated non-production child-pornography offenders as reflected in national Sentencing Commission statistics. The court rejected that argument, emphasizing that aggregate statistics do not, standing alone, establish an unwarranted disparity; a defendant must identify an “apples-to-apples” comparator sharing materially similar facts and characteristics.

Beyond disparity, the opinion underscores district courts’ broad discretion to vary upward where the Guideline range inadequately reflects the seriousness of the conduct, the defendant’s history and characteristics, the need for deterrence, and the need to protect the public—especially in the context of immediate recidivism involving child exploitation material.

Summary of the Opinion

The district court found the advisory ranges—27 to 33 months for the new possession offense and 4 to 10 months for the supervised-release violation—“woefully insufficient” in light of Suddeth’s immediate return to unlawful sexualized conduct involving minors, including viewing child pornography multiple times per week and communicating with minors online shortly after release. It imposed:

• 120 months’ imprisonment (statutory maximum) for the new possession count, followed by 25 years’ supervised release; and
• 24 months’ imprisonment (statutory maximum) for the revocation, to run consecutively.

On appeal, applying the deferential abuse-of-discretion standard from Gall v. United States, the Eleventh Circuit held that:

• The district court reasonably weighed the § 3553(a) factors—particularly seriousness, deterrence, protection of the public, and the defendant’s history and characteristics.
• Substantial upward variances may be appropriate in child-pornography cases, especially with aggravating facts and recidivism.
• Reliance on generalized Sentencing Commission statistics does not suffice to prove an unwarranted disparity under § 3553(a)(6) without identifying a truly comparable defendant who received a lower sentence.

Finding no clear error of judgment and no improper factor in the sentencing calculus, the court affirmed.

Factual and Procedural Background

In 2015, Suddeth pleaded guilty to possession of child pornography after admitting he viewed pornography involving young females, communicated with girls online (including minors), and possessed 600+ images, some involving children under 12. He received 97 months’ imprisonment and 25 years’ supervised release.

Upon release to home confinement and then supervision in 2022, probation officers discovered concerning conduct almost immediately:

• He visited pornographic websites, including “preteen” sites, multiple times per week.
• He possessed child pornography on a device (four images of girls approximately 13 years old).
• He engaged in inappropriate communications with minors using social media.
• He had handwritten stories portraying child molestation, child rape, incest, and abduction—crafted while incarcerated and hidden in his room at his instruction.

He admitted the conduct. He was separately charged with a new count of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), and admitted the supervised-release violation. The parties acknowledged a combined statutory ceiling of 12 years (10 years for the new count and 2 years for the revocation), and the district court imposed the maximums consecutively after finding the Guidelines inadequate in light of the § 3553(a) factors.

Analysis

Precedents Cited and Their Role

• Gall v. United States, 552 U.S. 38 (2007): Established abuse-of-discretion review for substantive reasonableness and the principle that appellate courts give due deference to district courts’ judgments, including when varying from the Guidelines. The panel invoked Gall’s framework to evaluate whether the district court’s variance was justified by § 3553(a) factors in light of the totality of the circumstances.
• United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): Emphasized that district courts have wide latitude in weighting § 3553(a) factors and need not accord equal weight to each factor. The opinion relied on Rosales-Bruno to underscore that reoffense risk and seriousness may be prioritized.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Confirmed there is no presumption of unreasonableness for outside-Guidelines sentences and that district courts must explain variances. Used to reinforce deference owed to the district court’s reasoned upward variance.
• United States v. Johnson, 803 F.3d 610 (11th Cir. 2015): Affirmed upward variances where the Guideline range underrepresents the seriousness of criminal history. It supports the district court’s conclusion that the advisory ranges understated the gravity of Suddeth’s conduct and recidivism.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Provided the “definite and firm conviction” formulation for identifying clear error of judgment in sentencing and stressed the exceptional seriousness of crimes involving sexual exploitation of children. The panel used Irey both for standard-of-review rigor and to highlight the heightened penological interests in child sex offenses.
• United States v. Azmat, 805 F.3d 1018 (11th Cir. 2015) and United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009): Clarified that disparity claims under § 3553(a)(6) require more than generic comparisons of offense labels and sentence lengths; a defendant must identify similarly situated comparators and account for individualized offense facts and characteristics—“apples to apples.” The court applied this principle to reject Suddeth’s reliance on national statistics alone.
• United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) and United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005): Reiterated that child sex crimes are “among the most egregious” and that possession of child pornography is not victimless. These cases bolster the decision to treat the offense and recidivism as gravely serious for § 3553(a) purposes.
• 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): A line of Eleventh Circuit cases upholding substantial upward variances, including to cumulative statutory maximums, in child pornography cases. They demonstrate that very large upward variances can be substantively reasonable given sufficiently aggravating facts and § 3553(a) justifications.

Legal Reasoning

The panel’s reasoning tracks the established substantive reasonableness framework:

• Standard and scope of review: The court applied deferential abuse-of-discretion review, looking to the totality of circumstances and whether the district court failed to consider significant factors, considered improper factors, or made a clear error of judgment in weighing proper factors.
• Guidelines as advisory starting point: The district court began with the advisory ranges (27–33 months on the new offense; 4–10 months on the revocation) but found them insufficient after a detailed assessment of § 3553(a) factors.
• Aggravators and § 3553(a) factors: The court emphasized: (a) immediate recidivism following a lengthy custodial term; (b) repeated consumption of child pornography and renewed inappropriate online communications with minors; (c) disturbing sexualized writings about child abuse prepared during incarceration and secreted upon release; and (d) the presence of a young child in the residence notwithstanding conditions barring association with minors without approval. These facts spoke to the seriousness of the offense, need for deterrence, protection of the public, and the defendant’s history and characteristics.
• Upward variance and explanation: The sentencing court described the Guidelines range as “woefully insufficient,” explicitly tethering the variance to § 3553(a) objectives—respect for the law, just punishment, general and specific deterrence, and incapacitation. The Eleventh Circuit concluded this explanation was adequate and supported by the record.
• Rejection of the disparity claim (§ 3553(a)(6)): Echoing Azmat and Docampo, the panel held that national sentencing statistics for “non-production” cases cannot, by themselves, demonstrate an unwarranted disparity. The defendant must identify similarly situated defendants—those with comparable conduct, criminal history, aggravators (e.g., immediate recidivism), and post-release behavior—who received notably lower sentences. Suddeth offered none.
• Consecutive sentencing: The court accepted the district court’s choice to impose the revocation term consecutive to the new sentence and at the statutory maximum. Given the aggravated facts and the permissibility of consecutive terms, the cumulative length fell within the range of reasonable sentences.

Impact

While unpublished and therefore nonbinding, the decision reinforces several practical and doctrinal points likely to influence litigation and sentencing practice in the Eleventh Circuit:

• Disparity arguments must be individualized: Defendants relying on Sentencing Commission aggregates or national averages for “non-production” child pornography cases will not meet the burden under § 3553(a)(6) unless they supply concrete comparators with materially similar facts and offender characteristics. Defense counsel should be prepared to proffer specific cases with detailed factual alignments.
• Large upward variances are sustainable with aggravating facts: Particularly in child exploitation contexts, immediate recidivism after a substantial sentence can justify upward variances to statutory maximums, including consecutive revocation terms, when the district court articulates the tie to § 3553(a) purposes.
• Expressive materials as § 3553(a) evidence: The court’s acceptance of the district court’s reliance on the defendant’s self-authored writings (depicting sexual offenses against children) illustrates that such materials may permissibly inform the “history and characteristics” assessment and predictions regarding future risk, even if not criminal in themselves.
• Revocation policy ranges remain advisory: The affirmance of a statutory-maximum revocation sentence above the advisory policy range (4–10 months) underscores district courts’ discretion in revocation sentencing when justified by the § 3553(a) considerations incorporated via 18 U.S.C. § 3583(e).
• Practical sentencing advocacy: For the government, documenting early and repeated post-release violations, contacts with minors, and digital footprints can powerfully support upward variances. For the defense, prompt acceptance of responsibility and treatment commitments, without individualized comparator evidence, will rarely suffice to defeat an otherwise well-reasoned upward variance grounded in public protection and deterrence.

Complex Concepts Simplified

• Substantive reasonableness: An appellate inquiry into whether the length of the sentence is reasonable given all the case facts and § 3553(a) factors. It differs from procedural reasonableness (which asks whether the court followed proper steps and explained the sentence).
• § 3553(a) factors: Statutory considerations guiding sentencing, including: seriousness of the offense; respect for law; just punishment; deterrence; protection of the public; the defendant’s history and characteristics; the Guidelines; the need to avoid unwarranted disparities; and restitution.
• Upward variance vs. departure: A “variance” is a sentence outside the Guidelines based on § 3553(a) factors; a “departure” is an adjustment authorized by the Guidelines themselves. Both require explanation; variances rely on statutory purposes rather than Guideline policy provisions.
• Unwarranted sentencing disparity (§ 3553(a)(6)): The law seeks to avoid unjustified differences among similarly situated defendants. To prove an unwarranted disparity, a defendant must show “apples-to-apples” comparators (same or closely similar conduct, aggravators, and records) who received different sentences, not merely point to national averages.
• Supervised release vs. probation: Supervised release follows imprisonment and includes conditions enforced by revocation and additional imprisonment. Probation is a sentence in lieu of imprisonment. Here, Suddeth violated conditions of supervised release.
• Revocation sentencing: When a defendant violates supervised release, the court may revoke and impose a prison term up to statutory maxima (which depend on the class of the original offense). Advisory policy ranges in Chapter 7 of the Guidelines inform but do not control revocation sentences, and courts may run revocation terms consecutive to new sentences.
• Statutory maximum and consecutive sentences: Each offense has a maximum custodial term. Courts may impose maximums and choose whether multiple sentences run at the same time (concurrent) or back-to-back (consecutive), consistent with statutes and § 3553(a).

Key Takeaways

• Aggregate Sentencing Commission statistics for a broad offense category (e.g., “non-production” child pornography) do not establish an unwarranted disparity under § 3553(a)(6) without specific, similarly situated comparators.
• Immediate post-release recidivism involving child exploitation material can justify substantial upward variances to statutory maximums, including consecutive revocation sentences, when anchored in the § 3553(a) factors.
• District courts retain wide discretion to prioritize public protection, deterrence, and offense seriousness in child sex offense cases, and appellate courts will defer to reasoned judgments supported by the record.
• Expressive writings evidencing sexual interest in children, though not charged as separate crimes, can inform the “history and characteristics” analysis and risk assessment at sentencing.

Conclusion

United States v. Suddeth reaffirms two enduring sentencing principles in the Eleventh Circuit: first, that large upward variances—up to and including statutory maximums with consecutive revocation terms—can be substantively reasonable when immediate recidivism and other aggravating facts make the Guidelines “woefully insufficient” to satisfy § 3553(a)’s aims; and second, that § 3553(a)(6)’s command to avoid unwarranted disparities is not satisfied by pointing to aggregate statistics alone. Instead, disparity challenges must be grounded in individualized, apples-to-apples comparisons accounting for a defendant’s history, conduct, and risk profile.

Although unpublished, the opinion is a clear signal that in child exploitation cases, especially those marked by rapid recidivism post-release, the Eleventh Circuit will defer to district courts that thoroughly explain why the statutory purposes of sentencing require substantial upward variances and consecutive revocation terms.