United States v. Mikkelson: Eleventh Circuit Clarifies Harmless-Error Treatment of Criminal-History Miscalculations and Re-affirms Broad Judicial Discretion for Upward Variances in Violent RICO Sentencings

I. Introduction

United States v. Brian Mikkelson, No. 24-11393 (11th Cir. July 15 2025), is a non-precedential (per curiam) opinion that nevertheless offers a concise restatement of two recurring sentencing themes in federal criminal practice:

The harmless-error approach to alleged criminal-history miscalculations when the defendant’s criminal-history category would not change; and
The breadth of district-court discretion to impose significant upward variances—here, from 162 to 192 months—in particularly violent racketeering cases, provided the court meaningfully ties its rationale to the statutory factors of 18 U.S.C. § 3553(a).

The decision arises from the brutal, racially-motived assaults perpetrated by members of the white-supremacist gang “The Unforgiven.” After pleading guilty to two counts of assault in aid of racketeering (18 U.S.C. § 1959(a)(3)), Brian “Crash” Mikkelson received an upwardly variant 192-month sentence—30 months above the top of his advisory Guideline range (130–162 months). He challenged both (1) the procedural validity of the criminal-history calculation, and (2) the substantive reasonableness of the variance. The Eleventh Circuit affirmed on all fronts.

II. Summary of the Judgment

Procedural Challenge: Mikkelson argued for the first time on appeal that two criminal-history points stemmed from the same conduct forming the basis of the federal case, allegedly inflating his Guidelines range. Reviewed for plain error, the Court found any mistake harmless because subtracting the two points would still leave him in Criminal-History Category VI and, therefore, would not alter the 130–162-month range.
Substantive Challenge: Mikkelson contended that a 30-month upward variance was excessive and that the district court over-emphasized his “disregard for the law” (specific deterrence) rather than § 3553(a)’s concern with promoting respect for the law (general deterrence). The panel held that the district court articulated ample § 3553(a) reasons—unusually cruel violence, gang affiliation, prior criminality, and danger to the public—and that the 192-month term was well below the 240-month statutory maximum, falling “in the ballpark of permissible outcomes.”

III. Detailed Analysis

A. Precedents Cited and Their Influence

United States v. Trailer, 827 F.3d 933 (11th Cir. 2016) – Reaffirmed the two-step sentencing review (procedural, then substantive). Mikkelson’s panel strictly followed this framework.
United States v. Utsick, 45 F.4th 1325 (11th Cir. 2022) – Articulates the four-prong plain-error test. The Court used it to deny relief on the criminal-history issue.
United States v. Butler, 39 F.4th 1349 (11th Cir. 2022); Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015) – Stress deference to district courts in weighing § 3553(a) factors and allow great weight to a single factor. Those opinions undergird the panel’s approval of the variance based on the brutality of the offense.
United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014) – Requires a “compelling enough” justification for major variances. The trial court’s lengthy explanation referencing terroristic violence and public safety satisfied this test.
United States v. Riley, 995 F.3d 1272 (11th Cir. 2021) – A sentence well below the statutory maximum is a sign of reasonableness; the panel invoked this rule.
Additional authorities (Early, Overstreet, Amedeo, Shaw, etc.) round out the Court’s doctrinal scaffolding on variance review and consideration of uncharged conduct.

B. Legal Reasoning Explained

1. Procedural Reasonableness

Because Mikkelson failed to raise the criminal-history objection below, plain-error review applied. An assumed error was:

Not “plain” enough—because the Guidelines expressly place all defendants with 13+ history points in Category VI, the record did not reveal an obvious effect.
No impact on substantial rights—the advisory range stayed the same (130–162 months). Without a changed range, there is no reasonable probability of a lower sentence, so the third plain-error prong failed.

2. Substantive Reasonableness

The Court reiterated that appellate review is highly deferential—upsetting a sentence requires a “definite and firm conviction” of a clear error in weighing the § 3553(a) factors. Key points:

Violence of the offense: Blow-torch threats, brass-knuckle strikes, shackles, and racist motivation were “a horse of a different color” from garden-variety assaults.
Criminal history and probation status: Category VI, repeated law violations, and commission of new crimes while on probation justified weight toward specific deterrence and public protection.
Balancing mitigators: Childhood abuse, substance addiction, and post-arrest rehabilitation were acknowledged but found outweighed by the aggravating factors.
Variance size: 30 months above the top of the range was far less than the statutory maximum (240 months), aligning with Eleventh Circuit cases approving similar or larger variances.

C. Potential Impact

Guidance on Harmless Criminal-History Errors.
Practitioners should note that even if some criminal-history points are mis-scored, reversal is unlikely if the defendant remains in the same category. Defense counsel must preserve such objections below to avoid the uphill battle of plain-error review.
Upward Variances in RICO / Gang Cases.
The opinion underscores the Eleventh Circuit’s willingness to view extreme, gang-motivated violence as meriting substantial variances, particularly when the district court carefully connects its reasoning to § 3553(a).
Specific vs. General Deterrence.
The panel implicitly approves district courts focusing on the defendant’s personal disregard for the law (specific deterrence) so long as that concern is tethered to public safety and the statutory sentencing goals.
Unpublished but Persuasive.
Although marked “DO NOT PUBLISH,” the reasoning will be cited informally by litigants facing similar procedural and substantive challenges in the Eleventh Circuit and nationally.

IV. Complex Concepts Simplified

PSI (Presentence Investigation Report): A document prepared by the U.S. Probation Office summarizing the offense, criminal history, personal background, and calculating the advisory Guidelines range.
Criminal-History Category: Points assigned for prior sentences place defendants into Categories I–VI; more points equal a higher presumed risk of recidivism.
Plain-Error Review: A four-part test applied when a defendant fails to object below: (1) error; (2) error is plain; (3) affects substantial rights; (4) seriously affects judicial integrity.
Upward Variance: A sentence above the advisory Guideline range, justified by statutory factors rather than Guideline policy statements.
§ 3553(a) Factors: Congress’s list of things a judge must consider when sentencing—nature of the crime, defendant’s history, deterrence, public safety, respect for the law, etc.

V. Conclusion

United States v. Mikkelson is a concise but potent reaffirmation that:

Appellate courts will not disturb a criminal-history miscalculation that does not alter the advisory range, absent preserved objection and demonstrable prejudice.
District courts retain wide latitude to impose significant upward variances for exceptionally violent racketeering offenses, especially when grounded in explicit § 3553(a) findings addressing both specific and general deterrence.

The decision thus equips sentencing courts—and appellate advocates—with a clear roadmap for analyzing similar challenges in the future. By blending a meticulous harmless-error analysis with deference to well-reasoned variances, the Eleventh Circuit signals continued support for robust discretionary sentencing in cases involving organized, ideologically-driven violence.