Upward Variance Affirmed Where Sentencing Court Grounds § 3553(a) Analysis in Defendant’s Defiance of Prior Federal Injunctions and Co-Defendant Disparity

I. Introduction

In United States v. Jasen Harvey (11th Cir. Apr. 28, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed a 48-month prison sentence imposed after Harvey pleaded guilty to conspiracy to defraud the United States in connection with a tax-fraud scheme. The advisory Guidelines range was 30 to 37 months, and the district court imposed an upward variance.

The appeal focused on two interrelated issues: (1) whether the sentence was procedurally unreasonable because the court allegedly failed to adequately consider the 18 U.S.C. § 3553(a) factors and explain the variance; and (2) whether it was substantively unreasonable because the court purportedly gave undue weight to Harvey’s prior violations of federal court injunctions entered in a related civil case.

II. Summary of the Opinion

The Eleventh Circuit held that the sentence was both procedurally and substantively reasonable. Procedurally, the district court sufficiently demonstrated it had considered the parties’ arguments and the § 3553(a) factors and provided a thorough explanation for the upward variance—emphasizing Harvey’s central role in a large tax-fraud scheme, the magnitude of intended and actual loss, the abuse of his position as a professional preparer, the need to avoid disparity with a co-defendant’s sentence, and—critically—his repeated defiance of federal injunctions ordering him to stop the very conduct at issue.

Substantively, the Eleventh Circuit concluded that the district court acted within its discretion in attaching significant weight to Harvey’s injunction violations as evidence of culpability and lack of respect for the law, and that the resulting sentence fell within the range of reasonable outcomes given the facts.

III. Analysis

A. Precedents Cited

1. Framework for procedural reasonableness and sentencing explanations

  • United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020): Cited for the abuse-of-discretion standard governing procedural reasonableness review. In Harvey, this anchored the appellate posture: the question was not whether a different sentence might be plausible, but whether the district court made a significant procedural mistake.
  • United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Provided the operative checklist of “significant procedural error” (e.g., failing to consider § 3553(a), relying on clearly erroneous facts, or failing to adequately explain a variance). It also supplied the key explanation standard: enough reasoning to satisfy the appellate court that the judge considered the parties’ arguments and exercised reasoned decisionmaking.
  • United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008): Quoted within Grushko for the procedural-error taxonomy and later used (via Irey) for the substantive “range of reasonable sentences” formulation. In Harvey, Pugh operates as a recurring touchstone for how the Eleventh Circuit polices sentencing methodology and outcomes.
  • Rita v. United States, 551 U.S. 338 (2007): Quoted for the proposition that the sentencing court must provide enough explanation to show it considered arguments and had a reasoned basis. Harvey applies Rita to uphold a variance explanation that tied facts (scheme scale, role, injunction defiance, co-defendant disparity) to statutory purposes (deterrence, respect for law, proportionality).
  • United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Used to reject the idea that a sentencing court commits procedural error by not explicitly discussing each item of mitigating evidence. Harvey relies on Butler to treat the district court’s acknowledgment that it reviewed mitigation materials and considered § 3553(a) as sufficient.
  • United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009): Cited (via Butler) for the rule that acknowledging consideration of § 3553(a) factors and arguments can suffice. This underpins the panel’s acceptance of the district court’s statement that it considered “all” relevant factors and mitigation.
  • Gall v. United States, 552 U.S. 38 (2007): Cited (via Butler) for the principle that a judge must give serious consideration to the extent of a departure from the Guidelines and justify unusual leniency or harshness. In Harvey, the panel concluded the district court’s justification for a Guidelines-above sentence met Gall’s demands.

2. Framework for substantive reasonableness and deference

  • United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023): Cited for the abuse-of-discretion standard and the idea that the record need only reflect consideration of sentencing factors and arguments. Harvey uses Oudomsine to emphasize deference where the record shows the judge weighed relevant factors.
  • United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): Quoted for the principle that district courts have a “range of choice,” reversible only for “clear error of judgment.” This frames Harvey as a case about permissible weighting of factors, not appellate reweighing.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Central to the substantive review standard (“definite and firm conviction” of clear error in weighing § 3553(a)) and also invoked to classify “adequacy of explanation” as primarily a procedural issue. Harvey leans on Irey to (a) insulate the district court’s balancing from appellate second-guessing and (b) reject the argument that the judge had to explain why every lesser sentence would fail.
  • United States v. Olson, 127 F.4th 1266 (11th Cir. 2025): Cited for the proposition that a court may give “great weight” to one factor over others. This is particularly important in Harvey, where the appellant argued the court overemphasized injunction violations.
  • United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Also cited in the substantive section for the “major variance requires more significant justification” principle. The panel concluded the district court supplied that justification.

B. Legal Reasoning

1. Procedural reasonableness: the court’s explanation was adequate

The panel treated the district court’s on-the-record sentencing narrative as meeting the governing standards because it did three core things:

  • Connected key facts to sentencing purposes. The district court emphasized the “large-scale” nature of the fraud, Harvey’s “vital” role, the intended loss (over $3 million) and actual tax loss (over $1.5 million), and abuse of his professional position—facts tied to seriousness, just punishment, and deterrence.
  • Explained the upward variance with specific rationales. The court stated the Guidelines did not capture culpability and that variance was needed to avoid disparity with a co-defendant deemed less culpable, directly tracking § 3553(a)(6)’s concern with unwarranted disparities.
  • Demonstrated consideration of mitigation without item-by-item discussion. The district court expressly referenced reviewing the PSR, sentencing memoranda, character letters, mitigation documents, and hearing argument and allocution. Under United States v. Butler and Rita v. United States, that acknowledgment and the reasoned explanation sufficed even if the judge did not explicitly rebut each mitigating claim (health, family, first offender status).

The panel also noted that the government disputed whether Harvey preserved the procedural objection but declined to resolve preservation—affirming even under the more favorable assumption that the claim was preserved.

2. Substantive reasonableness: emphasizing injunction defiance was permissible

The core substantive attack was that the district court gave excessive weight to Harvey’s prior violations of federal injunctions entered in a civil matter in which the United States sued him. The panel rejected this characterization, reasoning that the violations were not an “improper or irrelevant factor” but were directly probative of:

  • Respect for the law and deterrence. Continuing the same unlawful conduct after both IRS warnings and federal court orders was treated as compelling evidence that ordinary deterrents had failed and that stronger punishment was justified.
  • Culpability. The injunction violations reinforced the district court’s view that Harvey proceeded “full speed ahead,” supporting a higher assessment of blameworthiness than the Guidelines range reflected.
  • Nature and circumstances of the offense. The court viewed the injunction defiance as intertwined with the offense conduct (“this particular tax fraud”), not as some unrelated character evidence.

The panel also invoked United States v. Olson to underscore that district courts may attach “great weight” to a single factor, so long as the overall sentence reflects reasoned judgment and remains within the range of permissible outcomes. Finally, it treated Harvey’s argument that the court failed to explain why a lesser sentence would not suffice as a procedural critique, relying on United States v. Irey to classify explanation adequacy as “a classic procedural issue.”

C. Impact

Although unpublished, United States v. Jasen Harvey is a clear application of existing Eleventh Circuit sentencing doctrine with practical signals for future tax-fraud and other white-collar sentencings:

  • Injunction and order defiance can materially support an upward variance. Where a defendant continues the same misconduct after formal legal commands to stop, sentencing courts may treat that as powerful evidence supporting heightened deterrence and respect-for-law considerations under § 3553(a)(2).
  • Co-defendant comparisons can justify variance when tied to culpability. The decision reinforces that disparity analysis is not limited to national averages; sentencing judges may look to co-defendant sentences, provided the comparison is anchored in culpability differences and the desire to avoid “unwarranted” disparity.
  • Mitigation need not be exhaustively discussed if the record shows consideration. The case reiterates that appellate courts will not require a point-by-point response to mitigation when the court expressly reviewed mitigation materials and articulated a coherent sentencing rationale.
  • Appellate deference remains the rule for substantive challenges. By repeatedly emphasizing “range of choice” and “clear error of judgment,” the decision illustrates how difficult it is to overturn a within-statutory, well-explained variance absent reliance on an improper factor or a plainly disproportionate outcome.

IV. Complex Concepts Simplified

  • Advisory Guidelines range: A recommended sentencing range calculated under the Sentencing Guidelines. After Booker, it is not mandatory, but it is the starting point for sentencing analysis.
  • Variance vs. departure: A departure is an adjustment authorized by the Guidelines themselves; a variance is a deviation based on the statutory § 3553(a) factors. Here, the court imposed an upward variance.
  • Procedural reasonableness: Whether the court used the correct process—properly calculated the Guidelines, treated them as advisory, considered § 3553(a), relied on accurate facts, and adequately explained the sentence.
  • Substantive reasonableness: Whether the final sentence is within the range of reasonable outcomes given the facts and § 3553(a), even if the process was correct.
  • Abuse of discretion: A highly deferential appellate standard. The sentence is reversed only if the district court made a serious legal/process error (procedural) or a clear error in judgment in weighing permissible factors (substantive).
  • § 3553(a) factors: The statutory considerations guiding sentencing, including seriousness of the offense, deterrence, protection of the public, rehabilitation, the Guidelines range, and avoiding unwarranted disparities.
  • Intended loss vs. actual loss: “Intended” loss reflects what the scheme sought to obtain; “actual” loss reflects the harm that actually occurred. Both can inform seriousness and culpability in sentencing.
  • Injunction (civil case) relevance at sentencing: Even if a violation occurred in a civil proceeding, the conduct (ignoring federal court orders) may be relevant to sentencing because it bears on respect for the law and deterrence.

V. Conclusion

United States v. Jasen Harvey affirms that an upward variance is sustainable where the district court (1) ties a detailed factual narrative to § 3553(a)’s purposes, (2) explains why the Guidelines understate culpability, (3) legitimately considers co-defendant disparity, and (4) treats defiance of prior federal injunctions—especially orders directed at the same misconduct—as compelling evidence supporting deterrence and respect for the law. The decision underscores a consistent Eleventh Circuit theme: robust deference to sentencing judges who make a record showing reasoned consideration of the statutory factors and a fact-grounded justification for the extent of variance.