Uncharged Conduct, Officer Video Identification, and the Departure/Variance Label: Eleventh Circuit Affirms a Major Upward Sentence in United States v. White

Introduction

In United States v. Narada Barry White, the Eleventh Circuit affirmed a 96-month sentence—more than double the top of the advisory Guidelines range—for a felon-in-possession conviction under 18 U.S.C. § 922(g). The district court treated the sentence as an upward departure or variance based on Mr. White’s violent conduct surrounding and apart from the offense, his criminal history, and public-safety concerns. On appeal, Mr. White challenged both the procedural and substantive reasonableness of the sentence, arguing that the court relied on insufficiently supported findings about uncharged conduct (a 2019 double shooting and a 2022 liquor-store robbery) and placed undue weight on factors already captured by the Sentencing Guidelines.

The Eleventh Circuit’s unpublished, per curiam decision (Non-Argument Calendar) provides a compact but consequential reinforcement of several sentencing principles: (1) sentencing facts need only be supported by a preponderance of the evidence and may be proved with reliable hearsay, including officer identifications from video; (2) appellate courts defer strongly to district-court credibility determinations and plausibility-based factual findings; (3) large upward variances can be reasonable when justified by § 3553(a); and (4) for purposes of appellate review in this case, the label “departure” versus “variance” did not affect the outcome where the arguments and reasoning overlapped.

Summary of the Judgment

• Charge and Guidelines: Mr. White pled guilty to possessing a firearm as a felon. His advisory Guidelines range was 37–46 months (total offense level 17, criminal history category IV).
• Sentence: The district court imposed 96 months (eight years)—an above-Guidelines sentence—citing (i) his random discharge of a firearm into an apartment complex just before his arrest, (ii) a 2019 double shooting, (iii) a 2022 liquor-store robbery, and (iv) his criminal history and risk to the public.
• Appellate Claims:
  • Procedural: The district court relied on unsupported facts concerning the 2019 shooting and 2022 robbery.
  • Substantive: The sentence, more than twice the Guidelines maximum, improperly reused factors the Guidelines already accounted for and was greater than necessary under § 3553(a).
• Holding: Affirmed. The court held that (a) the district court’s findings were supported by a preponderance of the evidence with sufficient indicia of reliability, and (b) the 96-month sentence was substantively reasonable given Mr. White’s history, his use of firearms in violent conduct, and the need to protect the public.

Analysis

Precedents Cited and Their Influence

• Gall v. United States, 552 U.S. 38 (2007): Establishes abuse-of-discretion review for sentencing, requiring appellate courts to check for procedural error (like reliance on erroneous facts or failure to consider § 3553(a)) and then substantive reasonableness. The panel uses Gall’s framework throughout.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Supplies the Eleventh Circuit’s formulation for substantive reasonableness: reversal only if left with a “definite and firm conviction” that the court committed a clear error of judgment in weighing § 3553(a). The panel applies this demanding standard to uphold the 96-month sentence.
• United States v. Green, 981 F.3d 945 (11th Cir. 2020): Confirms that sentencing facts must be proved only by a preponderance of the evidence. The court employs this lenient evidentiary threshold to sustain findings of the 2019 shooting and 2022 robbery.
• United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010): Authorizes consideration of information inadmissible at trial (e.g., hearsay) if it has sufficient indicia of reliability. Ghertler also sets a two-part test to overturn reliance on such information: the defendant must show that the evidence is materially false or unreliable and that it actually formed the basis for the sentence. Mr. White did not meet this burden.
• United States v. Matthews, 3 F.4th 1286 (11th Cir. 2021): Articulates the clear-error standard for factual findings—reversal only when the reviewing court is firmly convinced a mistake occurred. The panel quotes and applies this standard.
• Cooper v. Harris, 581 U.S. 285 (2017): Cited for the proposition that a district court’s finding that is “plausible in light of the full record” must govern, even if another finding is equally or more plausible. This reinforces deference to the district court’s plausible account of the evidence.
• United States v. Asante, 782 F.3d 639 (11th Cir. 2015): Emphasizes deference to the district court’s credibility determinations. The panel leans on this to uphold the district court’s reliance on the officer’s identifications.
• United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): Approves weighting criminal history heavily under § 3553(a), noting multiple § 3553(a) factors relate to criminal history and public safety. This supports the district court’s emphasis on Mr. White’s violent pattern and firearm misuse.
• United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009): Upholds a statutory-maximum sentence for a § 922(g)(1) conviction when the defendant’s history suggested he was “a step or two away from violent crime.” Here, the panel analogizes: Mr. White had already used a firearm to shoot two people and discharged into a residential complex, supporting a substantial variance.

Legal Reasoning

The panel proceeds in two stages: procedural reasonableness (factual support for the contested findings) and substantive reasonableness (whether 96 months was within the range of reasonable sentences under § 3553(a)).

Procedural Reasonableness: Reliability and Deference

• Standard: Preponderance of the evidence; information need only bear “sufficient indicia of reliability” to support probable accuracy (Green; Ghertler).
• Evidence of 2019 double shooting:
  • Testimony from Lieutenant Ray Blanks identifying Mr. White as the shooter captured on apartment-complex video.
  • Two eyewitnesses (Erica Vasser and Tikira Milton) picked Mr. White from a photo lineup; their recorded interviews were played for the court.
  • Although Lt. Blanks had initially testified he could not identify the shooter from the video, he later re-reviewed the footage multiple times and, based on repeated prior interactions with Mr. White (body build, gait), identified him. The district court found Lt. Blanks credible.
• Evidence of 2022 liquor-store robbery:
  • Exterior surveillance video showed Mr. White arriving, entering, and exiting Captain’s Corner. Lt. Blanks, familiar with Mr. White, identified him in that footage.
  • Lt. Blanks testified that the interior video (which could not be produced due to corruption/virus) showed Mr. White reaching over the counter and taking cash; during the incident, Mr. White told the cashier “shut up or I will shoot you.”
• The district court expressly credited Lt. Blanks, acknowledged its own inability to identify Mr. White from the video firsthand, and nonetheless found the officer’s identification reliable—bolstered in the 2019 incident by two independent eyewitness identifications.
• Appellate posture: Applying clear-error review and Cooper’s “plausible finding” rule, the Eleventh Circuit held that the district court’s account was plausible on the entire record. Because Mr. White did not show the information was materially false or unreliable—and that it formed the basis of the sentence—his procedural challenge failed (Ghertler).

Substantive Reasonableness: Weighting § 3553(a)

• Magnitude alone is not dispositive: Although 96 months more than doubled the Guidelines maximum (46 months), there is no per se limit on upward variances; the question is whether the court made a clear error of judgment in applying § 3553(a) (Irey; Gall).
• District court’s rationale:
  • History and characteristics: Prior scored convictions (assault, robbery, obstruction, negotiating worthless instruments), unscored convictions (robbery; multiple worthless instruments), and pending charges.
  • Nature and circumstances: Recent random discharge of a firearm into an apartment complex; prior use of a gun to shoot two men during an altercation; threatening a cashier in the 2022 robbery.
  • Need to protect the public and deter: Persistent firearm-related risk and escalating violence warranted a stronger sentence (Riley).
  • Alternative rationale: The court noted it considered the 10-year maximum warranted but imposed 96 months in light of the guilty plea—a discretionary concession reflected in the § 3553(a) balancing.
• Appellate endorsement: Drawing on Riley and Shaw, the panel concluded the district court permissibly placed substantial weight on criminal history and firearm violence and sufficiently explained why the Guidelines did not capture the risk. The sentence fell within the range of reasonable outcomes.

Departure vs. Variance: Label Immaterial to Outcome Here

The district court sometimes referred to an “upward departure,” while the Statement of Reasons described an “upward variance.” The Eleventh Circuit held that, on these facts, the distinction did not alter the analysis because Mr. White’s procedural and substantive arguments were the same under either label. The message to practitioners is pragmatic: when the district court’s reasoning rests squarely on § 3553(a), and the defendant’s objections do not turn on departure-specific procedures or notice, appellate courts may treat the label as immaterial to the result.

Impact and Practical Implications

• Reliance on uncharged conduct and officer identifications at sentencing: The decision underscores that district courts may credit officer identifications from video and testimonial descriptions of evidence not introduced at sentencing—so long as the court finds them reliable. Defense counsel must be prepared to challenge reliability with concrete counter-evidence, not merely cross-examination pointing to earlier uncertainty.
• Hearsay at sentencing remains potent: The panel’s application of Ghertler confirms that hearsay and otherwise inadmissible evidence can drive sentencing outcomes. The key constraints are reliability and the preponderance standard, coupled with opportunities for rebuttal under Rule 32.
• Large upward variances in § 922(g) cases: Following Riley and Shaw, this case reiterates that substantial upward variances (even approaching the statutory maximum) can be reasonable where firearms are intertwined with a defendant’s prior violence, and the court articulates protective/deterrent rationales under § 3553(a).
• Criminal history and “unscored” conduct: The court’s acceptance of unscored convictions, pending charges, and other conduct as part of the § 3553(a) mosaic will encourage prosecutors to present a broad, reliable record of the defendant’s past. Defense counsel should be ready with mitigating context, temporal remoteness arguments, or evidence undermining reliability.
• Labeling (departure vs. variance): While the label did not matter here, it can matter in other contexts (e.g., notice for departures under pre-Booker practice). To avoid appellate friction, sentencing courts should clearly state whether they are imposing a variance, a departure under a specific Guideline policy statement (such as § 4A1.3 for inadequate criminal history), or both, and provide an alternative variance rationale under § 3553(a).
• Unpublished but persuasive: Although “Not for Publication” and thus non-binding, the opinion provides persuasive guidance within the Eleventh Circuit regarding standards of proof and the breadth of information district courts may credit at sentencing.

Complex Concepts Simplified

• Preponderance of the Evidence: The fact is more likely true than not (greater than 50%). This is a far lower bar than “beyond a reasonable doubt” and governs most sentencing fact-finding.
• Procedural vs. Substantive Reasonableness:
  • Procedural: Did the court follow proper steps (calculate Guidelines, consider § 3553(a), avoid clearly erroneous facts, explain the sentence)?
  • Substantive: Is the length of the sentence reasonable in light of the § 3553(a) factors? Reversal demands a clear error of judgment.
• Clear Error and Deference: Appellate courts overturn a factual finding only when firmly convinced a mistake occurred. If the district court’s view is plausible on the full record, it stands—especially when based on credibility assessments the trial judge is best positioned to make.
• Indicia of Reliability: Information need not be trial-admissible to guide sentencing. The question is whether it bears sufficient hallmarks of trustworthiness (consistency, corroboration, firsthand familiarity, documentary/video support) to be used.
• Upward Departure vs. Variance:
  • Departure: A sentence outside the Guidelines range under a specific Guideline policy statement (e.g., § 4A1.3 for inadequate criminal history).
  • Variance: A sentence outside the range based directly on § 3553(a) factors, independent of any specific departure provision.
  • In this case: The court’s analysis treated the label as immaterial because the same rationale would sustain either characterization.
• Scored vs. Unscored Convictions: “Scored” convictions count toward the criminal history category under the Guidelines’ timing and offense rules; “unscored” convictions are too old or otherwise excluded from the formal score but may still inform the § 3553(a) analysis or support a departure for underrepresented criminal history.
• Statutory Maximum: The absolute ceiling set by statute for an offense (for § 922(g), typically 10 years). A court may vary up to the statutory maximum when justified by § 3553(a).

Conclusion

United States v. White reinforces the Eleventh Circuit’s deferential approach to district-court sentencing judgments where the record, viewed as a whole, plausibly supports the court’s factual findings and § 3553(a) rationale. By crediting an experienced officer’s video-based identifications and corroborating witness identifications, the panel held that the preponderance standard and reliability requirement were satisfied—even in the absence of the interior surveillance video. The court then affirmed a substantial upward variance grounded in the defendant’s firearm-linked violence, criminal history, and the need to protect the public and deter future crime.

Practically, the decision signals that defendants challenging upward variances tied to uncharged conduct must do more than highlight inconsistencies; they must affirmatively demonstrate material unreliability and show that the sentencing relied on false premises. For district courts, it underscores the value of making explicit credibility determinations, tying the variance to concrete § 3553(a) goals, and articulating alternative rationales—steps that fortify sentences against appellate attack. Although unpublished, White offers persuasive guidance: when a district court’s factual findings are plausible and its § 3553(a) analysis is well explained, even dramatic variances can fall well within the bounds of reasonableness.