United States v. Cortero-Roman: Eleventh Circuit Demands Full Explanation for “Extraordinary” Upward Variances

1. Introduction

The Eleventh Circuit’s unpublished decision in United States v. J. Cruz Cortero-Roman, No. 22-13930 (11th Cir. June 12 2025), addresses the boundaries of sentencing discretion when a district court leaps far beyond the advisory Sentencing Guideline range. Although the panel (Judges Rosenbaum, Abudu & Tjoflat) rejected claims of procedural error, due-process violations, and requested reassignment, it nevertheless vacated a 180-month sentence—1,186 percent above the top of the eight-to-fourteen-month Guideline range—because the district court failed to articulate how it selected the degree of variance.

Key Issues Before the Court
• Was the district court’s questioning of the victim and reliance on uncharged conduct a due-process violation?
• Did the court procedurally err in finding facts or misapplying the Guidelines?
• Was the resulting sentence “substantively unreasonable” given the 166-month upward variance?
• Should the matter, if remanded, be reassigned to a different judge?

2. Summary of the Judgment

• No Procedural Error / No Due-Process Violation. Plain-error review revealed no bias, no reliance on clearly erroneous facts, and no miscalculation of the advisory range (8–14 months).
• Inadequate Explanation for Variance. The district court described defendant’s dangerousness but did not “show that the Guideline range was taken into account” or explain “why this sentence (180 months) rather than some lesser upward variance satisfied § 3553(a).” Without such reasoning the appellate court could not conduct “meaningful review.”
• Sentence Vacated & Remanded. On remand the same district judge must reconsider and explain how any sentence—Guideline or variant—is reached.
• Reassignment Denied. The record showed no partiality warranting the extraordinary step of assigning a different judge.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

• Gall v. United States, 552 U.S. 38 (2007): Established that appellate courts must consider “the extent of any variance” and that district courts must give adequate explanation, especially for major deviations. The panel quotes and applies Gall’s mandate.
• United States v. Booker, 543 U.S. 220 (2005): Advisory nature of Guidelines; courts must still calculate them correctly— framing the discussion of departures vs. variances.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Clarified abuse-of-discretion review; cited for the “clear error of judgment” test in substantive-reasonableness analysis.
• United States v. Johnson, 877 F.3d 993 (11th Cir. 2017): Requires a sentencing court to “show that the Guidelines were taken into account” when varying—key to finding here.
• United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008) & Valdes, 500 F.3d 1291 (11th Cir. 2007): Both vacated sentences where the district court offered insufficient justification—precedent for present remand.
• Numerous plain-error and due-process cases (Marshall v. Jerrico, Hill, Harris) underscored why the district judge’s conduct, though active, remained permissible.

3.2 Court’s Legal Reasoning

1. Plain-Error/Due-Process Inquiry (Procedural Stage).
   • Defendant failed to object below—plain-error standard.
   • No clearly established law barred the judge from calling the victim-witness; questions were limited and allowed cross-examination.
   • Alleged factual mistakes (e.g., continual violent crime) were reasonable inferences from record—no “definite and firm conviction of error.”
2. Procedural Reasonableness.
   Even without departures, the Guideline range was accurately calculated; court articulated § 3553(a) factors; hence procedurally sound.
3. Substantive Reasonableness.
   The 166-month jump (from 14 to 180) dwarfed any affirmed variances in Eleventh-Circuit history. The court recited dangers but never connected dots: Why 180? Why not 60, 100, or stay within statutory max but above Guidelines? Lack of “mathematical or conceptual bridge” required vacatur.
4. Remand Without Reassignment.
   Applying the Torkington factors, no indication of entrenched bias, and reassignment would waste judicial resources.

3.3 Potential Impact of the Decision

• Heightened Explanatory Duty. District judges in the Eleventh Circuit must now quantify or otherwise articulate why the chosen number of months—especially for “four-digit” percentage variances—is “no greater than necessary.”
• Blueprint for Challenging Extreme Variances. Defense counsel now possess clear footing: argue not only that factors were misweighed, but that the court failed to translate concerns into a reasoned calculation.
• Guidelines vs. Departures Debate Revived. Judge Tjoflat’s separate concurrence (not binding but influential) urges district courts to exhaust departure analysis before leaping to a variance. Expect litigants to cite this concurrence to attack sentences where courts bypass Chapters 4–5 departures.
• Prosecutorial Practice. Opinion chastises the government for minimal sentencing advocacy. U.S. Attorneys may now proactively brief departures or variance justifications in extraordinary re-entry or recidivist cases.
• Training & Benchbooks. Federal Judicial Center and U.S. Sentencing Commission likely to update bench guides, urging explicit rationale whenever variance exceeds a multiple of the Guideline range.

4. Complex Concepts Simplified

Departure vs. Variance

• Departure – A built-in Guideline mechanism (Chapter 5K) that adjusts the range itself when unusual facts fall outside the “heartland.” Requires notice and written findings.
• Variance – A court’s discretionary decision to impose a sentence outside the Guideline range based on broader statutory factors (§ 3553(a)). No Rule 32 notice requirement but must be thoroughly explained. In practice, courts may use either or both, but they must still start with an accurate Guideline range.

Procedural vs. Substantive Reasonableness

• Procedural – Did the court use the correct process? Accurate Guideline calculation, opportunity to be heard, reliance on supportable facts.
• Substantive – Is the length of the sentence a “clear error of judgment” in light of § 3553(a)? Even perfect procedure can produce an unreasonable outcome.

Plain-Error Review

When a litigant fails to object, the appellate court asks four questions: (1) Is there an error? (2) Is it “plain” (clear by precedent)? (3) Does it affect substantial rights? (4) Does it seriously affect the fairness, integrity, or reputation of judicial proceedings? Without “plainness,” a sentence stands.

5. Conclusion

Cortero-Roman does not forbid major upward variances; it does, however, make clear that the Eleventh Circuit will not rubber-stamp them without an articulated roadmap. Sentencing judges must do more than express outrage or recite criminal histories—they must tether the chosen number of months to principled reasoning grounded in the Guidelines and § 3553(a).

For practitioners, the case supplies a two-pronged lesson: Defenders should preserve objections and demand specificity; prosecutors must justify any extraordinary request with either Guideline departures or precise variance logic. Future jurisprudence will likely refine how “extreme” is too extreme, but the message is immediate: explain, document, and justify, or risk a remand.