Plain-Error Review of Inadequate Sentencing Explanations After Steiger: Commentary on United States v. Herrera Gongora

I. Introduction

This commentary analyzes the Eleventh Circuit’s unpublished per curiam decision in United States v. Yulisey Herrera Gongora, No. 23‑11999 (11th Cir. Dec. 17, 2025) (non‑argument calendar, not for publication). The case sits at the intersection of several important federal sentencing doctrines:

the statutory obligation under 18 U.S.C. § 3553(c)(2) to give “specific” reasons for any sentence outside the advisory Guidelines range;
the distinction between procedural and substantive reasonableness on appellate review;
plain‑error review where defense counsel does not specifically object to the adequacy of the district court’s sentencing explanation;
the use of large policy-based crack/powder variances in the wake of the Fair Sentencing Act and evolving practice; and
the impact of rapidly changing “career offender” law (including Dupree and Guideline amendment 822) on real-world sentences.

Herrera pled guilty to four counts arising from her role as the organizer of a crack‑cocaine distribution operation in Miami that used juveniles and operated in a violent gang context. Although her correctly calculated Guidelines range was 235–293 months, the government agreed to a dramatic downward variance based on a 1:1 crack‑to‑powder ratio, which produced an advisory range of 70–87 months. The district court accepted that reduced range but then imposed a 180‑month upward‑variance sentence—more than double the high end of the agreed range.

On appeal, Herrera contended:

her sentence was procedurally unreasonable because the district court did not adequately explain the reasons for its upward variance as required by § 3553(c)(2); and
her sentence was substantively unreasonable because the court allegedly disregarded mitigating factors and created unwarranted disparities with codefendants who received shorter terms.

The Eleventh Circuit affirmed. While it accepted that the district court had committed a § 3553(c)(2) error, it held that—under the en banc decision in United States v. Steiger, 99 F.4th 1316 (11th Cir. 2024)—the error did not satisfy the strict third prong of plain‑error review because the record made the sentencing rationale clear enough to permit meaningful appellate review. It also found the 180‑month term substantively reasonable under the deferential abuse‑of‑discretion standard.

Although unpublished and therefore non‑precedential under Eleventh Circuit rules, Herrera Gongora is a useful illustration of several practical and doctrinal points:

how Steiger operates in real cases to insulate even poorly explained upward variances from reversal where there is no specific contemporaneous objection;
the breadth of district courts’ discretion to vary upward from an already substantially reduced Guidelines range; and
how courts treat arguments about codefendant disparities and difficult upbringings in serious drug‑trafficking cases involving juveniles and firearms.

II. Summary of the Opinion

A. Charges, Plea, and Sentencing Posture

Herrera and four codefendants were charged in 2022 with drug‑trafficking‑related crimes tied to a Miami “Trap House.” By superseding information, Herrera pled guilty to:

possession with intent to distribute cocaine base (crack), 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 1);
conspiracy to obstruct justice (witness tampering), 18 U.S.C. § 1512(k) (Count 2);
conspiracy to possess with intent to distribute crack, 21 U.S.C. § 846 (Count 3); and
felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g) (Count 4).

The plea agreement contained two notable features:

The government committed to support a “downward variance” in the drug base offense level from 28 to 18 to “account for the disparity between powder and crack cocaine.” This effectively asked the court to apply a 1:1 crack‑to‑powder ratio as a policy matter, even though both the statute and Guidelines still embody an 18:1 ratio.
The government also agreed with a lower role enhancement (two levels rather than four) than the probation office recommended.

B. Guideline Calculations and Variances

The Presentence Investigation Report (PSI) placed Herrera at:

Base offense level 28 under U.S.S.G. § 2D1.1 for 262.27 grams of crack cocaine;
+2 for possession of a dangerous weapon;
+2 for maintaining a drug premises;
+2 for involving a minor, witness intimidation, and obstruction;
+4 for being an organizer/leader;
−3 for acceptance of responsibility;

for a total offense level of 35, criminal history category IV, yielding an advisory range of 235–293 months.

Herrera argued that:

the base offense level should be 18, not 28, as a policy variance to eliminate the crack/powder disparity; and
the role enhancement should be +2 rather than +4.

Accepting both of those positions, her total offense level would be 23 (18 + 2 + 2 + 2 − 3), producing a range of 70–87 months. At sentencing, the government agreed that the “current” Guidelines calculation in the PSI was correct as a matter of law, but nonetheless urged the court to adopt the 70–87‑month range via a downward variance on the drug base offense level. The district court accepted that reduced range, remarking that it “seems to be the trend.”

However, when it turned to the ultimate sentence, the government recommended 180 months, well above 70–87 months, citing:

Herrera’s leadership role in a violent gang‑linked crack distribution operation;
her use of juveniles in drug trafficking;
her continued drug dealing and interference with the investigation while in custody; and
her “woefully understated” criminal history, including a prior federal drug‑trafficking conviction and a violent robbery.

The district court imposed 180 months (15 years) on Counts 1–3 and 120 months on Count 4, all concurrent. This was an upward variance from the 70–87‑month advisory range that resulted from the parties’ agreed variance and lower role enhancement.

C. Issues on Appeal and Holdings

On appeal, Herrera argued:

The district court’s failure to provide specific reasons in open court and in the written Statement of Reasons (SOR) for the upward variance violated 18 U.S.C. § 3553(c)(2), making the sentence procedurally unreasonable.
The 180‑month sentence was substantively unreasonable because the court allegedly:
- failed to give sufficient weight to her mitigating personal history and circumstances, and
- created unwarranted sentencing disparities when compared to codefendants who received shorter terms, including one (Rivera) with more drugs and worse criminal history.

The Eleventh Circuit:

Procedural reasonableness: Agreed that the district court had not complied with § 3553(c)(2)’s requirement of “specific” reasons for an out‑of‑Guidelines sentence, but—because defense counsel made only a generic objection to “procedural and substantive reasonableness”—reviewed the issue for plain error under Steiger and held that Herrera could not show the error affected her substantial rights. The record made the rationale for the variance clear enough to permit meaningful appellate review, so there was no reversible procedural error.
Substantive reasonableness: Held that the 180‑month sentence was within the range of reasonable outcomes given Herrera’s leadership role, use of juveniles, persistent criminal conduct (including from jail), and relatively favorable treatment in the Guidelines calculation (including a large crack/powder variance and the absence of a career‑offender enhancement). The court rejected Herrera’s disparities argument, noting that higher culpability justified a higher sentence than her codefendants. It emphasized that the sentence was also below the 20‑year statutory maximum for the key counts.

The judgment was therefore affirmed.

III. Detailed Analysis

A. Factual and Procedural Background in Greater Detail

1. The “Trap House” Operation and Herrera’s Role

Herrera stipulated in a factual proffer that from February to August 2022 she conspired to distribute approximately 262 grams of crack cocaine. She:

cooked powder cocaine into crack;
served as a non‑exclusive supplier to multiple street‑level dealers;
helped run a central distribution location labeled the “Trap House” in Miami;
knew that her coconspirators routinely carried firearms in connection with the drug trade; and
continued arranging drug sales even after being incarcerated.

The PSI further described Herrera as:

“a primary source of [crack cocaine] to a violent street gang”;
the person who “supervised and managed a distribution center”;
someone who “employed street‑level distributors and juveniles” to sell drugs and provide protection; and
an arranger of multiple firearms transactions, with guns later linked to shootings near the Trap House.

Herrera disputed aspects of the PSI’s description, insisting she was more a street‑level dealer than a true organizer who “employed” others. The probation office, however, stood by its account, and crucially, she did not maintain factual objections at the end of the sentencing hearing other than through her (rejected) arguments about role and guideline level.

2. Criminal History and “Understatement” Concern

Herrera had a criminal history category of IV based on three prior convictions:

2010 state conviction for robbery with a firearm;
2011 state convictions for burglary of an unoccupied dwelling and petit theft; and
2014 federal conviction for conspiracy to possess with intent to distribute marijuana.

She also had numerous prior contacts with law enforcement that did not result in convictions (firearms offenses, thefts, drug possession, resisting an officer) as well as pending charges, which the government emphasized to argue that the CHC IV score “woefully understated” her criminal history.

An important doctrinal twist is explained in a footnote. In January 2023, the Eleventh Circuit sitting en banc decided United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), holding that inchoate drug trafficking offenses (like conspiracy to distribute) no longer counted as “controlled substance offenses” for purposes of the career‑offender Guideline, U.S.S.G. § 4B1.1. Later in 2023, the Sentencing Commission reversed course via Amendment 822, explicitly adding inchoate crimes back into the definition at § 4B1.2(d).

The panel noted that if Herrera had been sentenced:

before Dupree, or
after Amendment 822 took effect,

she likely would have been a career offender with:

offense level 32;
criminal history category VI; and
an advisory range of 210–262 months.

This reinforces the government’s narrative that her actual Guideline range—even before the crack/powder variance—was significantly more lenient than it might have been under slightly different timing, justifying concern about an “understated” guideline picture.

3. Sentences of Codefendants

Three codefendants had been sentenced before Herrera’s appeal:

Mendez – Lived with Herrera and received 102 months. The government characterized him as showing the greatest remorse and rehabilitative potential among the group.
Rodriguez – Described as a “street‑level” distributor who was personally involved in shootings and in running over a quadriplegic in a wheelchair, receiving 120 months. The government argued he should fall somewhere between Mendez and Herrera in culpability.
Rivera – Responsible for more than 550 grams of cocaine and criminal history category VI, he received 144 months.

Herrera relied heavily on Rivera’s higher drug quantity and more serious criminal record in arguing that her 180‑month term reflected unwarranted disparity.

B. Precedents and Authorities Cited

1. Reasonableness Review Framework

United States v. Trailer, 827 F.3d 933 (11th Cir. 2016) – Provides the basic two‑step framework:
1. review for procedural reasonableness (including adequate explanation, correct Guidelines calculation, and consideration of § 3553(a) factors); and
2. review for substantive reasonableness (length of sentence in light of § 3553(a) and the totality of circumstances).
Gall v. United States, 552 U.S. 38 (2007) – The Supreme Court case anchoring modern sentencing review:
- mandates deferential abuse‑of‑discretion review;
- requires courts to give “adequate” explanation for sentences, especially those outside the Guidelines; and
- makes clear that no “extraordinary circumstances” are required to justify a variance.

2. § 3553(c)(2) and Explanation Requirements: Steiger and Oudomsine

18 U.S.C. § 3553(c) – Requires every sentencing court to state in open court the reasons for the particular sentence imposed.
18 U.S.C. § 3553(c)(2) – Adds that if the sentence is outside the advisory Guidelines range, the court must:
- state “the specific reason” for the variance orally, and
- also record those specific reasons in a written Statement of Reasons form.
United States v. Steiger, 99 F.4th 1316 (11th Cir. 2024) (en banc) – Central to this appeal:
- Held that failure to comply with § 3553(c)(2) is a procedural error, but where the defendant did not specifically object, it is reviewed under the plain‑error standard.
- Articulated the key rule: a § 3553(c) error does not affect substantial rights—and thus is not reversible under plain error—if the record nonetheless provides a clear basis for “meaningful appellate review.”
- Stated that reversal is warranted “only when the district court’s reasoning is unclear on the face of the record.”
United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023) – Reiterates that failing to adequately explain a sentence, including a variance, is a species of procedural unreasonableness.

3. Preservation and Plain Error: Carpenter, Rule 52

United States v. Carpenter, 803 F.3d 1224 (11th Cir. 2015) – Holds that:
- a defendant must “clearly state” the grounds of a sentencing objection;
- “sweeping, general objections” (e.g., “we object to the sentence’s reasonableness”) do not preserve specific issues like the sufficiency of the court’s explanation.
Fed. R. Crim. P. 52(a), (b) – Governs harmless and plain error:
- Rule 52(a): courts disregard errors that do not affect substantial rights.
- Rule 52(b): unobjected‑to “plain errors” may be corrected only if:
  1. there is an error;
  2. the error is “plain” (clear/obvious);
  3. the error affects substantial rights (usually outcome‑determinative); and
  4. correction is necessary to protect the fairness, integrity, or public reputation of judicial proceedings.

4. Substantive Reasonableness: Irey, Rosales‑Bruno, Butler, Goldman

United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) – Defines when a sentence is substantively unreasonable:
- when the court fails to consider a factor that should carry significant weight, gives significant weight to an irrelevant or improper factor, or makes a “clear error of judgment” in weighing the relevant § 3553(a) factors;
- emphasizes that appellate courts will disturb a sentence only if they have a “definite and firm conviction” that the sentence lies outside the range of reasonable options.
United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015) – Clarifies that district courts:
- must consider all applicable § 3553(a) factors,
- but need not give them equal weight, and
- may permissibly give “great weight” to a single factor (e.g., criminal history, seriousness of offense).
United States v. Butler, 39 F.4th 1349 (11th Cir. 2022) – Affirms that district courts have wide discretion in imposing upward variances based on § 3553(a) considerations.
United States v. Goldman, 953 F.3d 1213 (11th Cir. 2020) – Notes that a sentence well below the statutory maximum is a “relevant indicator” of reasonableness, though not dispositive.

5. Crack/Powder Disparity and the Fair Sentencing Act: Dorsey

Dorsey v. United States, 567 U.S. 260 (2012) – Explains how the Fair Sentencing Act of 2010 reduced the statutory crack/powder ratio from 100:1 to 18:1 and that the amended penalties apply to post‑Act sentencing of pre‑Act offenses. The Guidelines now mirror the 18:1 ratio, but neither the statute nor the Guidelines ever adopted a 1:1 ratio.

Building on Dorsey and the Supreme Court’s broader recognition that sentencing courts may vary from the Guidelines based on policy disagreement (noted in cases like Kimbrough v. United States, 552 U.S. 85 (2007)), the probation office correctly observed that the court could not directly change the base offense level to reflect a 1:1 ratio under the Guidelines, but it could grant a policy‑based variance from a correctly calculated range.

C. Legal Reasoning of the Eleventh Circuit

1. Procedural Reasonableness and § 3553(c)(2)

a. Was the issue preserved?

Herrera’s counsel did not lodge a targeted objection when the court failed to provide detailed reasons for the upward variance. After pronouncing sentence, the district judge asked for objections, and defense counsel stated only, “We object to the procedural and substantive reasonableness of the sentence.”

Under Carpenter, such a generic objection is insufficient to preserve specific procedural issues (like the adequacy of the explanation). The panel therefore treated Herrera’s § 3553(c)(2) claim as unpreserved and reviewed it only for plain error.

b. Was there a § 3553(c)(2) error?

Yes. The district court’s oral explanation was extremely terse:

“The Court has considered the statements of all parties, the presentence report which contains the advisory guidelines, and the statutory factors as set forth in 18 U.S.C. § 3553(a). A sentence will be imposed above the advisory guideline range, as this will be necessary to provide sufficient punishment and deterrence.”

On the written Statement of Reasons, the court simply checked generic boxes for:

“[t]o reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; and
“[t]o avoid unwarranted sentencing disparities among defendants.”

Neither the oral remarks nor the check‑boxes identify why this particular defendant warranted a 180‑month term as opposed to one within the 70–87‑month range. Under § 3553(c)(2), the court must provide “the specific reason” for departing from or varying outside the Guidelines range. The panel acknowledged that this minimal explanation did not satisfy that statutory requirement.

c. Plain‑error analysis under Steiger

The core of the panel’s reasoning lies in applying Steiger’s plain‑error framework:

Error: The court assumed there was a statutory error under § 3553(c)(2).
Plainness: Given Steiger and the text of § 3553(c)(2), the deficiency was obvious.
Substantial rights: The key question—did the error undermine Herrera’s ability to obtain meaningful appellate review or likely change the outcome?

Following Steiger, the panel held that a § 3553(c) error does not affect substantial rights if “the record is clear enough to allow meaningful appellate review of the sentence.” The appellate court then canvassed the record and concluded that:

“the government provided several reasons why an above‑advisory‑guidelines sentence was appropriate under the § 3553(a) factors,” including:
- Herrera’s leadership of a group of violent drug dealers;
- her exploitation of juveniles;
- her recidivism and continued drug dealing from prison;
- the understatement of her criminal history relative to a career‑offender scenario;
- her higher culpability than codefendants; and
- her partial cooperation and interference with the investigation.
“It is clear from the face of the record that the district court varied upward from the advisory guidelines range for these reasons, even though it did not explicitly say so at sentencing or in a written statement of reasons.”

Because a “reasonable person familiar with the sentencing record” could discern the rationale for the upward variance, the panel found no effect on substantial rights—no reversible plain error. It concluded that a remand would be “a wasteful formality for the district court to state on the record what everyone already knows,” echoing Steiger.

2. Substantive Reasonableness

a. Standard and deference

The panel reviewed the sentence for abuse of discretion, emphasizing:

the district court’s “wide discretion to impose an upward variance based on the § 3553(a) factors” (Butler);
that courts may give more weight to some factors than others (Rosales‑Bruno); and
that reversal is warranted only if the sentence lies outside the range of reasonable outcomes (Irey).

b. The aggravating factors supporting 180 months

The panel highlighted several aggravating dimensions:

Leadership and organizational role – Herrera was not merely a retail dealer; she:
- was a “primary source” of crack to a violent street gang;
- managed a distribution center; and
- employed a network of sellers, including juveniles.
Use of juveniles and exposure to violence – Involving minors in an armed drug operation is independently aggravating, and the record suggested that one such juvenile—her own son—had at least pointed a BB gun at another child.
Persistent, undeterred criminality – Herrera:
- had prior drug and violent convictions;
- was arrested and searched multiple times during the investigation, yet continued the operation;
- attempted to influence witnesses and obstruct justice from prison; and
- continued arranging drug sales by phone while incarcerated.
Understated criminal history, relative to career‑offender exposure – Given Dupree and the impending reversal by the Sentencing Commission, the panel underscored that Herrera avoided what would normally be much harsher career‑offender treatment, making the 180‑month sentence still generous when viewed against potential 210–262‑month ranges.

C. Mitigating factors and the court’s weighing

Herrera stressed:

her traumatic childhood: an abusive home environment, maternal incarceration, periods of living on the street, and mental health issues;
her efforts toward education (GED) and intermittent lawful employment;
her remorse; and
some cooperation with the government.

The panel did not dismiss these considerations but held that the district court was entitled to give greater weight to:

the seriousness of the offense (especially leadership of a violent, juvenile‑involving crack operation);
the need for deterrence and protection of the public; and
her recidivist history and continued criminality under supervision and in custody.

Under Rosales‑Bruno, this weighing choice falls squarely within the district court’s discretion.

d. Codefendant disparity arguments

Herrera’s disparities argument focused on Rivera, who was responsible for more cocaine and had criminal history category VI but received only 144 months. She claimed giving her 180 months was inconsistent with § 3553(a)(6), which instructs courts to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.”

The panel rejected this contention, noting that:

disparities based on differences in culpability are not “unwarranted”; and
Herrera’s role as the operation’s organizer and leader, and her use of juveniles, reasonably justified a higher sentence even if some codefendants engaged in discrete acts of violence or had worse criminal records.

In short, § 3553(a)(6) does not require uniformity; it forbids only unjustified disparity among “similarly situated” defendants. The panel found the distinctions here rational and supported by the record.

e. Statutory maximum and comparative Guideline ranges

Finally, the panel pointed out that:

Herrera’s 180‑month sentence was “well below” the 20‑year statutory maximum on each of Counts 1–3;
it was also below:
- the original correct Guideline range of 235–293 months, and
- the hypothetical career‑offender range of 210–262 months she might have faced absent the narrow Dupree window.

Under Goldman and related cases, a sentence significantly below the statutory maximum is generally an indicator of reasonableness. In combination with the strong aggravating factors, the panel concluded that 180 months fell within the “range of reasonable sentences” dictated by the facts.

IV. Impact and Practical Significance

A. Reinforcing Steiger: Explanation Errors and Plain Error Review

Herrera Gongora is a concrete example of how Steiger works in practice. It underscores:

Even where a sentencing court violates § 3553(c)(2) by failing to articulate specific reasons for an upward variance, the Eleventh Circuit will affirm under plain‑error review if:
- the defendant did not specifically object to the lack of explanation below, and
- the existing record (arguments of counsel, PSI, colloquy) clearly reveals why the judge imposed the chosen sentence.
Defense counsel must make a targeted, contemporaneous objection to the sufficiency of the court’s explanation to preserve robust appellate review of § 3553(c)(2) issues.
Generic objections to “procedural reasonableness” are inadequate; violations of § 3553(c)(2) will often be treated as harmless or non‑prejudicial where the rationale is inferable.

B. Crack/Powder Policy Variances Are Not a Ceiling

This case also shows that:

Even after a court adopts a major policy‑based downward variance (here, lowering the base offense level from 28 to 18 by applying an effective 1:1 crack/powder ratio), it retains full discretion to:
- consider case‑specific aggravating factors, and
- impose an upward variance from that adjusted range.
Defense counsel cannot treat the policy‑variance‑adjusted range as a de facto maximum; the court is anchored in the full § 3553(a) inquiry, not in any single negotiated figure.

The opinion thus reminds practitioners that “winning” a major downward variance on policy grounds does not foreclose the government from asking, and the court from granting, an upward variance based on individualized facts.

C. Codefendant Sentences and “Unwarranted Disparities”

The panel’s treatment of codefendant disparities affirms several principles:

§ 3553(a)(6) focuses on unwarranted disparities; different sentences are justified where defendants differ in role, conduct, or cooperation.
Being the organizer or leader of a criminal operation can justify a sentence higher than that of a more violent subordinate or a defendant accountable for more drug quantity.
District courts have wide latitude to calibrate relative sentences within a conspiracy, and the Eleventh Circuit is reluctant to second‑guess those comparative judgments absent clear irrationality.

D. Flux in Career‑Offender Law and “Understated” Guidelines

The discussion of Dupree and Guideline amendment 822 is notable. It illustrates how:

Rapid doctrinal change can create windows in which similarly situated defendants receive different Guideline calculations depending on timing.
Courts may treat such fortuities as a reason to view the advisory range as unduly lenient and justify an upward variance under § 3553(a)(2) and (a)(6), even if the formal career‑offender enhancement does not apply at that moment.

Practitioners should be aware that:

arguments about “understated” criminal history can be especially potent where the law has recently narrowed career‑offender coverage but the Sentencing Commission has signaled a return to broader treatment; and
the Eleventh Circuit is comfortable allowing district courts to factor such dynamics into their discretionary § 3553(a) analysis.

V. Complex Concepts Simplified

A. Advisory Sentencing Guidelines vs. Statutory Maximum

In federal sentencing:

The statutory maximum is the highest term of imprisonment authorized by the statute of conviction (e.g., 20 years for Herrera’s drug and obstruction counts).
The Sentencing Guidelines are an advisory framework that recommends a range (e.g., 235–293 months originally; 70–87 months after the downward variance). Courts must consider this range but may vary up or down based on § 3553(a) factors.

B. Variance vs. Departure

A departure is a change from the Guidelines range based on provisions within the Guidelines themselves (e.g., a specific upward departure mechanism).
A variance is a change from the advisory range based directly on statutory sentencing factors in § 3553(a), independent of any Guideline departure mechanism.
Herrera’s case involved:
- a nominally correct Guidelines calculation at level 35 → 235–293 months;
- a large downward variance to reflect a 1:1 crack/powder policy, lowering the effective range to 70–87 months; and then
- a substantial upward variance to 180 months.

C. Procedural vs. Substantive Reasonableness

Procedural reasonableness concerns how the sentence was imposed:
- Was the Guidelines range correctly calculated?
- Did the court consider the § 3553(a) factors?
- Did it adequately explain its reasoning, especially for a variance?
Substantive reasonableness concerns what sentence was imposed:
- Is the length of the sentence reasonable in light of the seriousness of the crime, the defendant’s history, deterrence, public protection, and other § 3553(a) factors?
A sentence can be procedurally defective but substantively reasonable, or vice versa. In Herrera Gongora, the court found a procedural error but declined to reverse under plain-error review, and also found the sentence substantively reasonable.

D. Plain Error

Plain error is a stringent standard applied when the defense did not properly object in the trial court. To win on plain error, a defendant must show:

There was a legal error.
The error was “plain” (clear or obvious).
The error affected “substantial rights” (usually meaning it likely affected the outcome).
Correction is necessary to protect the fairness, integrity, or public reputation of judicial proceedings.

In sentencing, an error in explaining an upward variance will not meet prong (3) if the appellate court can still understand the sentencing rationale from the rest of the record.

E. Career Offender and “Inchoate” Crimes

A career offender under U.S.S.G. § 4B1.1 is a defendant:
- who is at least 18 at the time of the instant offense;
- whose instant offense is a felony “crime of violence” or “controlled substance offense”; and
- who has at least two prior felony convictions for such offenses.
“Inchoate” crimes are incomplete or preparatory offenses like conspiracy or attempt.
Dupree held that conspiracy drug crimes were not “controlled substance offenses” for career‑offender purposes, but the Sentencing Commission later amended the Guideline to re‑include them. Herrera fell into the narrow window where Dupree excluded her prior conspiracy, thus avoiding career‑offender status.

F. § 3553(a) Factors

The key statutory considerations under 18 U.S.C. § 3553(a) include:

the nature and circumstances of the offense;
the defendant’s history and characteristics;
the need for the sentence to:
- reflect seriousness of the offense;
- promote respect for the law;
- provide just punishment;
- afford adequate deterrence;
- protect the public; and
- provide needed training or treatment;
the kinds of sentences available;
the advisory Guidelines range and policy statements;
the need to avoid unwarranted sentencing disparities; and
the need to provide restitution.

In Herrera Gongora, the most salient factors were:

seriousness of the offense (violent, gang‑related crack distribution with juveniles and firearms);
deterrence and public protection (persistent recidivism and continued drug dealing from prison); and
relative culpability among codefendants (Herrera as leader/organizer).

VI. Conclusion

United States v. Herrera Gongora does not announce new binding precedent, but it is an instructive application of the Eleventh Circuit’s recent en banc decision in Steiger to a difficult sentencing record involving both downward and upward variances. The decision underscores several important points:

District courts must provide “specific reasons” under § 3553(c)(2) for any sentence outside the Guidelines range, both orally and on the Statement of Reasons form. Failure to do so is a procedural error.
However, if defense counsel fails to specifically object to that inadequacy, appellate review will be under plain‑error standards, and the conviction will not be reversed if the record nevertheless reveals a clear, reviewable rationale for the sentence.
Even after granting substantial policy‑based variances to mitigate the crack/powder disparity, district courts retain wide discretion to impose substantial upward variances based on individualized aggravating factors such as leadership role, use of juveniles, and persistent recidivism.
Arguments about unwarranted disparities with codefendants will fail where the sentencing court can rationally distinguish defendants by role, culpability, or conduct.
Rapidly evolving doctrine (such as the definition of “controlled substance offense” for career‑offender purposes) can influence how courts view the adequacy of the advisory Guideline range and can be invoked as a justification for upward variances when the range appears to understate the seriousness of the defendant’s record.

For practitioners, the case is a cautionary tale on two fronts:

Defense counsel must make timely, specific objections to the adequacy of sentencing explanations to preserve robust appellate review of § 3553(c)(2) violations.
Securing a favorable crack/powder variance or other negotiated adjustment does not lock in a sentencing ceiling; the court’s ultimate decision will still turn on the totality of § 3553(a) factors and its assessment of the defendant’s real‑world conduct and risk.

In the broader federal sentencing landscape, Herrera Gongora reinforces the Eleventh Circuit’s strong deference to district court sentencing discretion and its stringent application of plain‑error review to unpreserved procedural challenges, even where statutory explanation requirements are not fully met.