Upward Variances May Rest on Allocution-Evidenced Lack of Remorse; General “White Collar Leniency” Remarks Do Not Equal an Impermissible Guidelines Policy Disagreement Absent Reliance

Case: United States v. Edwin Rivera (11th Cir. Apr. 9, 2026) (per curiam, not for publication)
Posture: Appeal from the Middle District of Florida challenging an above-Guidelines sentence as unreasonable.

I. Introduction

In United States v. Edwin Rivera, the Eleventh Circuit affirmed a 48-month sentence for theft of government property, imposed as an upward variance from an advisory Guidelines range of 37 to 46 months. The appellant, Edwin Rivera, argued the sentence was unreasonable because the district court allegedly (1) impermissibly relied on Rivera’s demeanor (i.e., subjective impressions) and an improper policy disagreement with the Sentencing Guidelines when applying the 18 U.S.C. § 3553(a) factors, and (2) failed to adequately explain the sentence.

The central issues on appeal were the familiar two-step reasonableness inquiry: whether the district court committed procedural error (including inadequate explanation) and, if not, whether the sentence was substantively unreasonable because it rested on improper considerations rather than an individualized § 3553(a) assessment.

II. Summary of the Opinion

The Eleventh Circuit affirmed. It held that the district court:

• Acted procedurally reasonably by considering the § 3553(a) factors and adequately explaining the upward variance, emphasizing the seriousness of the offense (including an intended loss of nearly $10 million) and Rivera’s history and characteristics.
• Acted substantively reasonably by relying on Rivera’s demonstrated lack of remorse and reversal of position at sentencing (disavowing prior plea-hearing admissions, disputing key PSR facts, denying responsibility, and deflecting blame) as part of an individualized § 3553(a) analysis.
• Did not impermissibly sentence based on a Guidelines policy disagreement; the district court’s remarks about lenient white-collar sentences were not treated as a stated reason for the variance.
• Imposed a sentence well below the ten-year statutory maximum, supporting reasonableness.

III. Analysis

A. Precedents Cited (and How They Shaped the Outcome)

1) Framework for appellate review of sentences

• Gall v. United States, 552 U.S. 38 (2007): The court anchored its methodology in Gall—reasonableness review under a deferential abuse-of-discretion standard, considering “the totality of the circumstances,” and separating procedural from substantive review. Gall also supplies the rule that a variance—especially a “major” one—requires a sufficiently compelling justification, though no rigid formula governs.
• United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): Used to emphasize (i) the challenger’s burden to show unreasonableness and (ii) the sentencing court’s discretion to weigh Guidelines alongside § 3553(a) factors and individualized facts, including discretion to give some factors more weight than the Guidelines.
• United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010): Cited for standard-of-review basics on procedural reasonableness (legal issues de novo; factual findings for clear error), setting the background for evaluating Rivera’s procedural claims.

2) Preservation and plain-error review for explanation challenges

• United States v. Steiger, 99 F.4th 1316 (11th Cir. 2024) (en banc): The opinion highlights that unpreserved § 3553(c) (statement-of-reasons) errors are reviewed only for plain error. This precedent narrows relief where a defendant did not object contemporaneously to the adequacy of explanation.
• United States v. Turner, 474 F.3d 1265 (11th Cir. 2007): Cited both for the plain-error test and for the principle that a district court need not explicitly discuss every § 3553(a) factor; an acknowledgment that the factors were considered can suffice.
• United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013): Reinforces that the court is not required to mechanically recite or discuss each § 3553(a) factor on the record.

3) Substantive reasonableness and improper-factor policing

• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Supplies the Eleventh Circuit’s substantive-reasonableness articulation—abuse of discretion occurs if the court gives significant weight to an improper factor, fails to consider factors due significant weight, or commits a clear error of judgment in weighing proper factors. It also emphasizes appellate restraint: reversal only with a “definite and firm conviction” of error in the sentencing balance.
• United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (en banc) (Birch, J., dissenting): Quoted through Irey as part of the abuse-of-discretion formulation.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Cited for the rule that the weight assigned to each § 3553(a) factor lies in the district court’s discretion; the court may prioritize one factor over others.

4) Demeanor, remorse, and allocution as proper § 3553(a) considerations

• United States v. McNair, 605 F.3d 1152 (11th Cir. 2010): Directly supports the key move in this appeal: lack of remorse may be given great weight and may be considered under multiple § 3553(a) headings (history/characteristics; respect for law; protection of the public).
• United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009): Cited for the proposition that demonstrated lack of remorse during the sentencing proceeding can justify an upward variance, including when allocution reflects a problematic attitude.
  Note: The opinion later cites “Kapordelis, 509 F.3d at 1318,” which appears to be a citation discrepancy given the earlier “569 F.3d” citation. The analytical point remains the same: demeanor and allocution can be evidentiary sources for remorse (or its absence).

5) Variances from the Guidelines and reliance on statutory maximums

• United States v. Early, 686 F.3d 1219 (11th Cir. 2012): Demonstrates the breadth of discretion to vary upward based on § 3553(a), and that courts are not bound by the government’s recommendation.
• United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): Used to reinforce that a sentence well below the statutory maximum is an indicator of reasonableness, supporting affirmance of the upward variance here.

B. Legal Reasoning

1) Procedural reasonableness: explanation and § 3553(a) consideration

Rivera argued the district court did not adequately explain why the Guidelines range failed to serve deterrence and public protection. The panel rejected this, finding the sentencing judge sufficiently tied the variance to specific, record-based considerations:

• Seriousness of the offense: the court referenced a nearly $10 million intended loss, which bears on harm/risk and gravity.
• History and characteristics of the defendant: the court emphasized Rivera’s conduct at sentencing—disavowing prior sworn admissions and showing no remorse.
• Need for specific deterrence: Rivera’s lack of remorse and denial of responsibility supported the view that more punishment was needed to deter him in particular.

The opinion also frames the governing law so that a sentencing court need not exhaustively tick through each § 3553(a) factor. Under United States v. Kuhlman and United States v. Turner, an adequate explanation may be relatively concise so long as the record shows meaningful consideration and a reasoned basis—especially where the variance is modest in degree (here, 48 months versus a top-of-range 46).

2) Substantive reasonableness: permissible use of demeanor and rejection of “policy disagreement” framing

Rivera characterized the upward variance as resting on subjective impressions (demeanor) and an impermissible policy disagreement with the Guidelines (a belief that white-collar sentences are too lenient). The Eleventh Circuit treated both arguments as misplaced on this record:

• Demeanor/lack of remorse is a proper sentencing consideration: Under United States v. McNair and United States v. Kapordelis, a sentencing judge may evaluate remorse based on what the defendant says and does at sentencing. The panel emphasized that Rivera renounced earlier statements supporting the plea’s factual basis, objected to “most” PSR facts, denied responsibility, and deflected blame. Those are not vague “impressions”; they are concrete acts and statements that inform § 3553(a) assessments.
• Acceptance of responsibility reduction vs. remorse as a § 3553(a) factor: Notably, the district court declined to remove Rivera’s three-level acceptance reduction (which would have raised the Guidelines range), yet still relied on lack of remorse for a variance. The panel’s approval underscores a practical point in federal sentencing: Guidelines adjustments and § 3553(a) considerations are related but not coextensive; a judge may decide not to reopen a Guidelines computation while still considering the same conduct when selecting the ultimate sentence under § 3553(a).
• No impermissible policy disagreement shown: The panel acknowledged the sentencing judge “commented on the lenient sentences for white collar crimes,” but found the judge did not “specifically mention that as a reason for the upward variance.” In other words, generalized commentary did not equate to reliance. The affirmance thus turns on a line between (i) a judge’s observations and (ii) a variance actually imposed because of a disagreement with the Sentencing Commission’s policy choices rather than individualized facts.
• Statutory maximum as a reasonableness signal: Citing United States v. Riley, the court treated the ten-year maximum as contextual support for the 48-month sentence’s reasonableness.

C. Impact

• Strengthening the “allocution matters” principle: The opinion reinforces that post-plea conduct at sentencing—especially repudiation of prior admissions and deflection of blame—can support an upward variance as evidence of lack of remorse and heightened need for deterrence.
• Separating Guidelines mechanics from § 3553(a) discretion: Even where a court leaves a Guidelines adjustment in place (here, acceptance of responsibility), it may still treat the defendant’s sentencing posture as aggravating under § 3553(a). Future litigants should address both layers: Guidelines calculation and the broader statutory sentencing factors.
• Limiting “policy disagreement” appellate claims without clear reliance: Defendants challenging upward variances as policy-driven will likely need a clearer record showing the variance was imposed because of the judge’s disagreement with Guidelines policy—mere commentary may not suffice.
• Practical preservation lesson: By foregrounding United States v. Steiger, the opinion signals the importance of objecting to inadequate explanation at sentencing; otherwise, review may be constrained to plain error.

IV. Complex Concepts Simplified

• Guidelines range (advisory): A recommended sentencing range produced by the U.S. Sentencing Guidelines. After United States v. Booker (not cited here), the range is not mandatory; it is a starting point.
• Upward variance: A sentence above the advisory Guidelines range based on the judge’s weighing of the § 3553(a) factors (as opposed to a “departure,” which is a Guidelines-based adjustment).
• Procedural vs. substantive reasonableness:
  • Procedural asks whether the judge followed the correct process (correct range calculation, considered § 3553(a), explained the sentence).
  • Substantive asks whether the length of the sentence is within the range of reasonable outcomes given the facts and § 3553(a).
• Acceptance of responsibility: A Guidelines reduction (often three levels) for defendants who clearly accept responsibility. A court may leave this reduction intact yet still consider later minimization or denial as relevant to remorse and deterrence under § 3553(a).
• Allocution: The defendant’s opportunity to speak at sentencing. What the defendant says can be used to assess remorse, accountability, and risk of reoffending.
• Plain error review: A stricter standard applied when the defendant did not object in the district court; it generally requires an obvious error that affected substantial rights and the integrity of proceedings.

V. Conclusion

United States v. Edwin Rivera affirms a modest upward variance where the district court grounded its decision in the offense’s seriousness and the defendant’s demonstrated lack of remorse at sentencing—particularly repudiation of prior plea admissions and denial of responsibility. The Eleventh Circuit treated demeanor-based remorse findings as a legitimate component of § 3553(a) analysis under United States v. McNair and United States v. Kapordelis, and it rejected the claim that the sentence rested on an impermissible Guidelines policy disagreement where the record did not show reliance on such a disagreement. The decision underscores that sentencing advocacy must address not only the Guidelines calculation but also the defendant’s presentation at sentencing and the court’s discretionary § 3553(a) weighing.