Pending State Charges and Pretrial Misconduct Can Justify Major Upward Variances in Illegal Reentry Sentences; No Continuance Absent Specific, Non‑Speculative Prejudice

Precedents Cited and Their Role in the Decision

• United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007): Provides the abuse-of-discretion standard for denying a continuance and enumerates factors to consider: time for preparation, likelihood of prejudice, the defendant’s role in shortening prep time, case complexity, and available discovery. The panel applied these factors to emphasize defense counsel’s notice, delay in seeking relief, and the speculative nature of the requested materials.
• United States v. Smith, 757 F.2d 1161 (11th Cir. 1985): Places the burden on a defendant to show both abuse of discretion and “specific substantial prejudice” from denial of a continuance. The court found that the defense proffer did not meet this burden.
• Gall v. United States, 552 U.S. 38 (2007): Establishes deferential abuse-of-discretion review for substantive reasonableness under § 3553(a). The panel evaluated the “totality of the circumstances,” not requiring a rigid formula or presumptions.
• United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015): Reinforces deference to the district court’s weighing of § 3553(a) factors and the notion that appellate courts ask whether the sentence falls within the “ballpark of permissible outcomes.” Cited to explain why the panel would not substitute its judgment for the district court’s.
• United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013), and United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006): Together, these cases clarify that significant reliance on a single factor does not automatically render a sentence unreasonable, but unjustified reliance on one factor can. The panel concluded the district court’s reliance on the pending charges and other factors was justified.
• United States v. Turner, 474 F.3d 1265 (11th Cir. 2007): The district court need not discuss every § 3553(a) factor aloud; acknowledging consideration suffices. The sentencing court did so here.
• United States v. Trailer, 827 F.3d 933 (11th Cir. 2016): A sentence will be vacated only when the appellate court has a “definite and firm conviction” that the district court committed a clear error of judgment in weighing § 3553(a). The panel did not have such a conviction.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Identifies when a district court abuses discretion in sentencing: ignoring relevant factors, relying on improper factors, or clearly erring in judgment. None was present.
• United States v. Williams, 526 F.3d 1312 (11th Cir. 2008): Appellate courts may consider the extent of a variance but must defer to the district court’s determination that the § 3553(a) factors justify it. Applied here to uphold the sizeable variance.
• United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010): Affirms district courts’ broad discretion to vary from the Guidelines based on § 3553(a). The court relied on this discretion, particularly in light of recidivism and pretrial misconduct. (Noted as abrogated on other grounds by Van Buren; the cited principle remains intact.)
• United States v. Sanchez, 586 F.3d 918 (11th Cir. 2009): Upholds upward variances grounded in a defendant’s criminal history, which was salient here given multiple removals and prior illegal reentry sentences.
• United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014): The court may consider facts already used to calculate the Guidelines as part of a variance analysis; and a sentence well below the statutory maximum can indicate reasonableness. Both points supported affirmance.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Unadjudicated conduct (including conduct underlying pending charges) can support an upward variance because it relates to § 3553(a) considerations like deterrence, respect for the law, and protecting the public. Central to the court’s approval of relying on the June 4 incident.
• United States v. Wilson, 884 F.2d 1355 (11th Cir. 1989): Identifies permissible sources for sentencing findings: trial evidence, plea admissions, undisputed PSI facts, and evidence presented at sentencing. The district court properly used the PSI, charging affidavit, and testimony.
• United States v. Hoffer, 129 F.3d 1196 (11th Cir. 1997): Defines “heartland/mine‑run” cases as typical of the guideline. The panel agreed the case was not mine‑run, given aggravating features.
• United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Major variances require more substantial justification than minor ones. The court found the district judge’s justification adequate.
• United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): A sentence well below the statutory maximum supports reasonableness; the 36‑month sentence was far below the 10‑year cap.

Legal Reasoning

1) Denial of Continuance

The panel emphasized notice and diligence. The government moved to revoke bond on June 17, 2024, because of a June 4 incident leading to state charges (assault, battery, and child abuse). The probation office then included the new conduct in an amended PSI on July 17, 2024. Defense counsel conceded awareness that arrests while sentencing is pending are typically included in the PSI and relevant to sentencing. Yet counsel waited until the rescheduled sentencing hearing on July 29, 2024, to request a continuance, rather than moving earlier.

On prejudice, the continuance request hinged on obtaining the stepson’s juvenile records to impeach his account. Counsel did not know what those records would contain and offered only speculation that they might show the witness was “very troubled and very angry at the defendant.” The district court also had corroboration from the stepson’s older sister and physical evidence inconsistent with the defendant’s and his wife’s explanations about a damaged minivan window. Under Smith, the defendant failed to demonstrate “specific substantial prejudice.”

Applying Edouard’s factors: (i) counsel had time to prepare in light of early notice; (ii) prejudice was speculative; (iii) the defense contributed to shortened preparation by delaying the motion; (iv) the case was not unusually complex; and (v) discovery included the amended PSI and charging materials. The denial of a continuance was therefore within the court’s discretion.

2) Substantive Reasonableness of the Upward Variance

The district court varied to 36 months based on several § 3553(a) considerations: the seriousness of repeated illegal reentries after five removals, a prior felony illegal reentry conviction, failures on probation, violation of pretrial release, and the pending state charges arising from conduct during the pendency of federal sentencing. The court relied on the PSI, the charging affidavit, and testimony presented at sentencing to make credibility findings, which is permissible under Wilson.

The Eleventh Circuit reiterated that unadjudicated conduct can support an upward variance when relevant to the defendant’s history and characteristics, deterrence, respect for the law, and public protection (Butler). The court underscored that significant reliance on one factor does not automatically render a sentence unreasonable (Kuhlman), and the district judge expressly grounded the sentence in multiple § 3553(a) factors and the Guidelines framework.

The panel rejected the “mine‑run” characterization (Hoffer): while illegal reentry can often be typical within the guideline heartland, this case was aggravated by recidivism, failures on supervision, and pretrial misconduct involving a minor. Given the breadth of district court discretion to vary (Rodriguez) and the requirement that major variances be supported by more robust reasons (Grushko), the court held the explanation adequate—especially where the 36‑month sentence was well below the 10‑year statutory maximum (Riley; Dougherty).

Finally, applying the deferential standard of Gall and Rosales‑Bruno, and the “definite and firm conviction” threshold in Trailer, the panel concluded the sentence fell within the “ballpark of permissible outcomes” in light of the totality of circumstances and the statutory purposes of punishment, deterrence, respect for law, and public protection.

Impact and Practical Implications

• Continuance Practice: Defense teams must act promptly when new adverse conduct arises pre‑sentencing. Waiting until the sentencing hearing to seek a continuance—particularly to pursue speculative impeachment material—risks denial. A specific proffer demonstrating non‑speculative, material prejudice is essential.
• Use of Pending Charges at Sentencing: Within the Eleventh Circuit, district courts may consider reliable evidence of unadjudicated conduct, including pending state charges, when applying § 3553(a). The PSI, charging affidavits, and live testimony can be sufficient grounding if the court makes credibility findings. Defense counsel should therefore be prepared to challenge reliability early and thoroughly.
• Illegal Reentry Sentencing: Repeat removals, prior illegal reentry convictions, and failures on supervision can move a case out of the “mine‑run” category. Substantial upward variances may be sustained if clearly tied to statutory purposes and supported by record evidence—even where the Guidelines recommend a low range.
• Sentencing Explanations for Major Variances: While major variances require more substantial justification, the bar is not insurmountable. A reasoned explanation connecting record facts to § 3553(a) purposes will typically suffice on appeal, especially when the sentence is well below the statutory maximum.
• Probation and Government Practice: The opinion implicitly validates including post‑plea, pre‑sentencing misconduct in amended PSIs and moving to revoke bond promptly, giving the court a fuller picture of the defendant’s history and characteristics.
• Non‑Precedential but Persuasive: Although “Not for Publication” and therefore non‑binding, the opinion aligns with published Eleventh Circuit jurisprudence and will likely be cited persuasively in similar disputes over continuances and upward variances based on unadjudicated conduct.

Complex Concepts Simplified

• Abuse of Discretion: A deferential standard. An appellate court will not reverse unless the district court’s decision falls outside the range of reasonable choices or ignores key factors.
• Substantive Reasonableness: Focuses on the length of the sentence and whether it reasonably advances the purposes of sentencing (punishment, deterrence, respect for law, protection of the public) under the totality of the circumstances.
• Upward Variance: A sentence above the advisory Guideline range based on statutory factors. Major variances require more detailed justification but are not per se unreasonable.
• “Mine‑Run” or “Heartland” Case: A typical case that fits the conduct envisioned by the guideline. Aggravating factors (e.g., repeated removals, supervision violations, pretrial misconduct) can take a case out of the heartland and justify variances.
• Unadjudicated Conduct: Conduct that has not resulted in a conviction (including pending charges). Courts can consider it at sentencing if supported by sufficiently reliable evidence, especially as it bears on the defendant’s history, risk, and deterrence.
• PSI and Charging Affidavit: The Presentence Investigation Report and sworn charging documents can be used to establish facts at sentencing, particularly when undisputed or corroborated and when the court makes credibility findings.
• Statutory Maximum as a Reasonableness Indicator: A sentence well below the statutory cap often supports (but does not guarantee) a finding that the sentence is reasonable.