Introduction

In this unpublished per curiam decision, the Eleventh Circuit affirmed a 48‑month sentence—an upward variance from an advisory guideline range of 18–24 months—imposed on Linda Davis for willful failure to collect or pay over employment taxes, in violation of 26 U.S.C. § 7202. The panel rejected Davis’s procedural and substantive reasonableness challenges, emphasizing two core points: (1) a district court’s on‑the‑record acknowledgment that it considered the 18 U.S.C. § 3553(a) factors typically suffices to defeat a procedural‑reasonableness challenge under plain‑error review; and (2) when a defendant has the ability to pay restitution but makes a conscious choice not to do so—especially after multiple continuances—her willful nonpayment may properly be treated as evidence of “disregard for the law” and lack of acceptance of responsibility, supporting an upward variance. This decision carefully distinguishes the constitutional limits articulated in Bearden v. Georgia and the Eleventh Circuit’s sentencing precedent in United States v. Plate, which prohibit punishing a defendant for truly being unable to pay.

The case arises from Davis’s multi‑year diversion of trust‑fund taxes withheld from employees, coupled with a fraudulent PPP loan application leveraging a false payroll tax form. Although Davis entered a plea to one tax count and the government dismissed the remaining counts and supported a downward variance, the district court found her post‑plea conduct—particularly her failure to timely liquidate assets and make meaningful restitution payments despite the means to do so—warranted a substantial upward variance. The appeal squarely presented both procedural and substantive reasonableness issues.

Summary of the Opinion

• Procedural reasonableness: Reviewed for plain error because Davis did not object at sentencing. The district court explicitly stated it had considered “all the § 3553(a) factors,” which the Eleventh Circuit has repeatedly held suffices; thus, no procedural error.
• Substantive reasonableness: Reviewed for abuse of discretion. The upward variance to 48 months was justified by Davis’s sustained tax violations, deception regarding PPP fraud, and post‑plea failure to make bona fide restitution efforts despite the ability to pay. The sentence fell within the range of reasonable outcomes under § 3553(a).
• Impermissible factor claim: Rejected. The panel distinguished reliance on “inability to pay” (impermissible if given decisive weight under Plate and Bearden) from reliance on “willful nonpayment despite ability,” which can validly inform the court’s assessment of respect for the law and acceptance of responsibility.
• Result: Affirmed.

Background and Procedural History

Davis owned a pavement‑maintenance company responsible for withholding and remitting federal income and FICA taxes on employee wages. From 2017 to 2021, she withheld trust‑fund and employer FICA taxes but failed to remit them, diverting the funds for personal use. The reported tax loss approached $557,250. In 2021, she also applied for a PPP loan, submitting a false IRS Form 941 to a federally insured bank to obtain $161,800.

A grand jury indicted Davis on 19 counts: 17 counts under § 7202 (failure to collect or pay over employment taxes), one count under 18 U.S.C. § 1014 (false statement to a financial institution), and one count under 18 U.S.C. § 1001 (false statements to the IRS). Pursuant to a plea agreement conditioned on substantial restitution (over $700,000), Davis pleaded guilty to one § 7202 count; the government dismissed the remaining counts and supported a downward variance, indicating it would not oppose a probationary sentence coupled with restitution.

At the first sentencing hearing (January 31, 2024), the district court adopted the Presentence Investigation Report’s calculations without objection. It expressed concern that Davis had deposited only $60,000 into a restitution escrow account—contrary to an earlier representation that she would deposit $100,000—explaining that she used $40,000 to pay a business vendor. The court continued sentencing to allow Davis to liquidate assets, noting she still lived in a $500,000 home and had the ability to pay but was choosing not to.

At the second hearing (May 29, 2024), Davis had not sold her home and still held equity in vehicles (approximately $67,000). The court again continued sentencing to afford additional time to sell assets. At the final hearing (October 16, 2024), Davis reported limited sales (a dump truck and paint machines) and deposited only an additional $5,000 since the first hearing, for a total escrow balance of $65,000. She cited hurricane damage to the pool enclosure as a reason for the delay in selling the undamaged home; the government noted the purchase of a second property post‑plea, with Davis’s name on the title.

The district court imposed a 48‑month term based on Davis’s “disregard for the law” and “failure to accept responsibility” as demonstrated by her financial choices. Davis did not object to the sentence at the hearing, and the appeal followed. The government acknowledged that an above‑guidelines sentence fell within the appeal waiver’s exception, permitting appellate review.

Analysis

Precedents Cited and Their Role

• United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023): Establishes plain‑error review for unpreserved procedural challenges and reiterates that a court’s acknowledgment of § 3553(a) consideration suffices. The panel leaned on Oudomsine to reject Davis’s procedural claim.
• United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020): A sentence is procedurally unreasonable if a court ignores § 3553(a) factors. The panel referenced Gomez to frame Davis’s argument but found it inapplicable because the district court expressly considered the factors.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): An express statement that the court considered § 3553(a) is generally sufficient. This underpinned the rejection of the procedural challenge.
• United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015) and United States v. McQueen, 727 F.3d 1144 (11th Cir. 2013): Articulate the deferential abuse‑of‑discretion standard for substantive reasonableness, stressing that reversals are rare. These cases set the lens for reviewing the upward variance.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Provides the core test—vacatur is warranted only when the panel has a definite and firm conviction that the district court committed a clear error of judgment in weighing § 3553(a). The panel relied on Irey to affirm.
• United States v. Olson, 127 F.4th 1266 (11th Cir. 2025): Confirms that district courts have wide latitude to weigh § 3553(a) factors as they see fit. The panel invoked Olson to dismiss Davis’s disagreement with the district court’s weighting of mitigating considerations.
• United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) and United States v. Langston, 590 F.3d 1226 (11th Cir. 2009): Cited for the general principle that reliance on impermissible factors can render a sentence unreasonable and for the defendant’s burden to show unreasonableness. The court found Davis’s impermissible‑factor claim both underdeveloped and unsupported by the record.
• United States v. Plate, 839 F.3d 950 (11th Cir. 2016): Holds it is substantively unreasonable to give significant (dispositive) weight to a defendant’s inability to pay restitution. The panel distinguished Plate by finding Davis had the ability to pay but chose not to, making her case the opposite of Plate’s equal‑protection problem.
• Bearden v. Georgia, 461 U.S. 660 (1983): Constitutional benchmark that prohibits incarceration solely because a defendant lacks resources to pay. The panel read Bearden to allow incarceration where a defendant fails to make bona fide efforts to pay despite the ability to do so.
• United States v. Jones, 846 F.3d 366 (D.C. Cir. 2017): Echoes Bearden’s concern, clarifying that incarceration solely due to unaffordability is “highly questionable.” The panel cited Jones to underscore the distinction between inability and unwillingness.

Legal Reasoning

1) Procedural Reasonableness

Davis argued the district court failed to consider all § 3553(a) factors. Because she did not object on this ground at sentencing, the Eleventh Circuit reviewed for plain error. Under settled circuit law, a district judge need not tick through each § 3553(a) factor on the record; it is enough to state that the factors were considered. Here, the judge expressly said he considered “all the § 3553(a) factors.” That acknowledgement, coupled with the court’s discussion of the facts bearing on seriousness, deterrence, respect for law, and restitution, foreclosed the procedural claim.

2) Substantive Reasonableness

The panel framed substantive review under the deferential abuse‑of‑discretion standard. The central question was whether imposing a 48‑month sentence—double the top of the advisory range—was outside the universe of reasonable outcomes in light of the record and § 3553(a).

The district court justified the variance based on: (a) the nature and circumstances of the offense (prolonged diversion of trust‑fund taxes and deception about PPP fraud); (b) Davis’s post‑plea conduct showing “disregard for the law,” including limited restitution efforts despite asset holdings and multiple continuances; and (c) her “failure to accept responsibility through [her] actions financially in this case.” The court found Davis had the ability to pay—she lived in a $500,000 home, held equity in multiple vehicles, maintained positive monthly cash flow, and continued operating her business—yet deposited only an additional $5,000 over nine months after the first hearing.

Against that backdrop, the panel rejected Davis’s claim that the court overweighted improper considerations. The opinion explains:

• Inability vs. unwillingness to pay: Relying on Plate and Bearden, the Eleventh Circuit clarified that a sentencing court cannot make inability to pay dispositive, but it can treat willful nonpayment, despite ability, as probative of disrespect for the law and insufficient acceptance of responsibility. The district court explicitly found Davis chose not to liquidate and pay; that finding distinguished her from the defendant in Plate.
• Weighting of mitigating factors: Although Davis highlighted her lack of criminal history, caregiving responsibilities, business success, and a guidelines range favoring a lower sentence, the district court retained broad discretion to weigh those considerations against the gravity and persistence of her conduct. The appellate court found no clear error of judgment in the district court’s balancing.
• Reference to dismissed or uncharged conduct: The district court noted Davis “lied to the agents… about the PPP fraud.” The Eleventh Circuit has long permitted consideration of reliable uncharged or dismissed conduct at sentencing under a preponderance standard. There was no indication of improper reliance; the court used those facts to assess respect for the law and specific deterrence.

Ultimately, the panel was not left with a “definite and firm conviction” that the district court erred. The 48‑month term—still below the five‑year statutory maximum for § 7202—fell within the “range of reasonable sentences” given the facts and the § 3553(a) purposes of punishment and deterrence.

Impact and Practical Implications

1) Clarifying the Plate/Bearden boundary at federal sentencing

This opinion is a clear reminder that Bearden and Plate forbid punishing poverty; they do not shield defendants who have the means to pay but refuse to do so. Where a sentencing record establishes ability to pay and a failure to make bona fide efforts—especially after continuances—courts may permissibly treat that conduct as indicating disrespect for the law and insufficient acceptance of responsibility. Expect this reasoning to surface in white‑collar, tax, and fraud sentencings involving restitution conditions or plea‑based restitution commitments.

2) Post‑plea conduct matters

The case highlights how post‑plea behavior can drive an upward variance. Davis’s minimal payments over months, retention of significant assets, and late‑breaking excuses (e.g., pool‑enclosure damage) undermined her claims of contrition and inability. Defendants seeking leniency tied to restitution should document robust, timely, and concrete efforts to pay—listing property at market‑realistic prices, liquidating non‑essential assets, and providing transparent updates to the court.

3) Government recommendations are not binding on the court

Although the government supported a downward variance consistent with the plea, the district judge was not bound and imposed an upward variance based on the § 3553(a) record. Practitioners should ensure plea agreements manage client expectations and emphasize that judicial discretion can cut both ways, particularly if post‑plea conduct undercuts mitigation.

4) Procedural preservation and the “acknowledgment rule”

The panel reiterates that when a district court verbally acknowledges consideration of § 3553(a), a procedural‑reasonableness attack faces long odds on appeal—especially under plain‑error review. Defense counsel should, where appropriate, make targeted, contemporaneous objections to preserve more searching review.

5) Relevance for employment tax prosecutions

Trust‑fund taxes are a recurring enforcement priority. This opinion underscores that:

• Persistent failure to remit trust‑fund taxes coupled with personal use of funds invites substantial punishment.
• Courts may consider related misconduct (e.g., deceit in PPP applications) as part of the totality of the circumstances.
• Meaningful restitution efforts can mitigate, but only when they are timely and commensurate with a defendant’s actual ability to pay.

Complex Concepts Simplified

• Procedural reasonableness: Focuses on the process the court used—did it consider the § 3553(a) factors, calculate the guidelines correctly, avoid treating them as mandatory, and explain the sentence?
• Substantive reasonableness: Focuses on the outcome—does the length of the sentence make sense given the facts and § 3553(a) purposes? Appellate courts give district judges wide latitude here.
• Plain‑error review: A tougher appellate standard that applies when issues weren’t preserved at sentencing. The error must be clear, affect substantial rights, and seriously affect the fairness of proceedings.
• Upward variance: A sentence above the advisory guidelines range, justified by § 3553(a) factors.
• § 3553(a) factors: Statutory considerations including the seriousness of the offense, deterrence, respect for the law, protection of the public, the defendant’s history and characteristics, the advisory range, avoiding unwarranted disparities, and restitution.
• Acceptance of responsibility: Under the Sentencing Guidelines, a defendant may receive a reduction for acceptance (U.S.S.G. § 3E1.1). Separately, courts may examine post‑plea conduct under § 3553(a) to assess genuine acceptance; poor post‑plea behavior can support a variance even if guideline credit was awarded.
• Bearden/Plate principle: Courts may not incarcerate or enhance a sentence based solely on a defendant’s inability to pay. However, they may consider willful nonpayment where the defendant has the ability to pay but chooses not to.
• Relevant conduct and dismissed counts: At sentencing, courts may consider reliable information about related conduct, even if uncharged or dismissed, proven by a preponderance of the evidence.
• Trust‑fund taxes: Employee withholdings (including FICA) are held in trust for the United States; failing to remit them is a serious offense because the money belongs to the government from the moment of withholding.

Conclusion

United States v. Davis reinforces two durable themes in Eleventh Circuit sentencing law. First, procedurally, a district court’s express acknowledgment that it considered § 3553(a) will ordinarily defeat a claim that the court ignored statutory factors—particularly when the defendant did not object and review is for plain error. Second, substantively, a defendant’s willful nonpayment of restitution despite the ability to pay can permissibly support an upward variance as evidence of disrespect for the law and incomplete acceptance of responsibility. This fits comfortably within Bearden and Plate, which protect indigent defendants from punishment for poverty, not those who choose to preserve assets rather than honor restitution commitments.

For practitioners, the opinion is a pointed reminder: post‑plea choices matter. Where the record shows assets, equity, and time to pay, a failure to make bona fide restitution efforts can drive sentences meaningfully above the guidelines. Conversely, thorough documentation of genuine, timely efforts to liquidate and pay remains one of the most powerful mitigators in financial‑crime sentencings.