Introduction

In United States v. Michael Anthony Sheppard (No. 24‑11599, 11th Cir. Mar. 25, 2025) (per curiam) (non‑argument calendar) (unpublished), the Eleventh Circuit affirmed a 96‑month sentence following guilty pleas to conspiracy and possession‑with‑intent‑to‑distribute cocaine, crack cocaine, oxycodone, and marijuana. The appeal raised three principal issues:

• Whether the district court violated the Fifth Amendment by impermissibly drawing an adverse inference from Sheppard’s refusal to provide information for safety‑valve or substantial‑assistance relief.
• Whether the sentence was procedurally infirm due to (i) an allegedly inadequate explanation for the upward variance; (ii) misapplication of U.S.S.G. §§ 4C1.1 (zero‑point offender) and 2D1.1; and (iii) reliance on facts unsupported by the record.
• Whether the sentence was substantively unreasonable under 18 U.S.C. § 3553(a).

The panel (Judges Luck, Kidd, and Tjoflat) affirmed in all respects. Although unpublished and therefore non‑precedential, the opinion offers a clear roadmap on several recurring sentencing questions, particularly the line between punishing silence and withholding discretionary leniency when a defendant does not qualify for the safety valve.

Background: DEA surveillance tied Sheppard to a multi‑faceted drug operation involving “third‑party” purchasers of oxycodone from a pain clinic and sizeable quantities of cocaine, crack cocaine, and marijuana. A search uncovered approximately 3,872 grams of cocaine, 150 grams of cocaine base, 6,990 grams of marijuana, and oxycodone pills. Sheppard pleaded guilty to conspiracy to possess with intent to distribute 500+ grams of cocaine (21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846) and possession with intent to distribute multiple controlled substances (21 U.S.C. § 841(a)(1), (b)(1)(B)(ii), (b)(1)(B)(iii), (b)(1)(C), (b)(1)(D)).

Sentencing posture: The defense sought the statutory minimum of 60 months; the government requested a within‑Guidelines sentence at the top of the 70–87 month range. The district court imposed 96 months, explaining that the volume, variety, and scope of Sheppard’s operation warranted a modest upward variance. No contemporaneous objections were lodged.

Summary of the Opinion

• Fifth Amendment: No violation. The district court did not penalize Sheppard for remaining silent; it merely recognized that he did not meet the statutory criteria for safety‑valve leniency. The court drew no adverse inference and had no duty to disclaim stray remarks by the government or the PSI. On plain‑error review, there was no error, let alone a clear one.
• Procedural reasonableness: No error.
  • Explanation for variance: Adequate under Gall/Rita. The court articulated case‑specific reasons (scope, sophistication, multi‑drug conduct, and volume) and explained why the Guidelines under‑captured the gravity.
  • Guidelines application: Proper. Sheppard received the § 4C1.1 zero‑point offender reduction; the district court’s observation that the ultimate sentence fell in the mid‑range of a hypothetical, unreduced calculation did not misapply the Guidelines. Challenges to the crack/oxycodone policy are matters of substantive reasonableness, not procedural error.
  • Record support: Sufficient. The court’s factual characterizations were supported by the PSI, and any drug‑weight dispute was unpreserved and harmless because it would not affect the base offense level.
• Substantive reasonableness: No abuse of discretion. The district court weighed the § 3553(a) factors, acknowledged mitigation, emphasized specific and general deterrence, and imposed a sentence far below the 40‑year statutory maximum—an indicator of reasonableness.

Disposition: Affirmed.

Analysis

Precedents Cited and Their Influence

• Plain Error and Preservation
  • United States v. Steiger, 107 F.4th 1315 (11th Cir. 2024): Framed the plain‑error standard for unpreserved claims—error, plainness, effect on substantial rights, and serious effect on fairness/integrity/public reputation. Guided the Fifth Amendment and procedural claims.
  • Holguin‑Hernandez v. United States, 589 U.S. 169 (2020): Advocacy for a lower sentence preserves a substantive reasonableness challenge. Ensured abuse‑of‑discretion review on the substantive claim.
• Fifth Amendment and Safety Valve
  • Griffin v. California, 380 U.S. 609 (1965): Prohibits adverse inferences from silence; the panel distinguished this from merely withholding statutory leniency.
  • United States v. Malekzadeh, 855 F.2d 1492 (11th Cir. 1988): Permits consideration of non‑cooperation in assessing eligibility for statutory relief.
  • Persuasive circuit authority upholding § 3553(f)(5): United States v. Cruz, 156 F.3d 366 (2d Cir. 1998); United States v. Warren, 338 F.3d 258 (3d Cir. 2003); United States v. Washman, 128 F.3d 1305 (9th Cir. 1997); United States v. Arrington, 73 F.3d 144 (7th Cir. 1996). The panel signaled agreement with the view that safety‑valve truthfulness conditions withhold a benefit rather than penalize silence.
  • United States v. Carroll, 6 F.3d 735 (11th Cir. 1993): Acceptance‑of‑responsibility reduction is a reward, not a punishment—an analogy supporting the “withholding leniency is not punishment” rationale.
• Variance Explanation and Guidelines Discretion
  • Gall v. United States, 552 U.S. 38 (2007): Requires individualized assessment and sufficiently compelling justification for the degree of variance; satisfied here.
  • Rita v. United States, 551 U.S. 338 (2007): Sentencing judge need only provide a reasoned basis; the district court did so by tying the variance to offense scope and under‑captured seriousness.
  • United States v. Harris, 964 F.3d 986 (11th Cir. 2020): No need to tick through each § 3553(a) factor on the record; consistent with the court’s concise but tailored explanation.
  • Kimbrough v. United States, 552 U.S. 85 (2007): Judges may vary based on policy disagreements but are not required to; used to reframe Sheppard’s crack/oxycodone arguments as substantive, not procedural.
• Fact‑Finding and Evidentiary Thresholds
  • United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007): “Clear error” standard for factual findings; no clear error here.
  • United States v. O’Brien, 560 U.S. 218 (2010): Sentencing facts may be found by a judge by a preponderance of the evidence; PSI provided adequate support.
• Substantive Reasonableness
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Defines substantive unreasonableness; no undue weight to improper factors and no clear error in balancing.
  • United States v. Ramirez‑Gonzalez, 755 F.3d 1267 (11th Cir. 2014): Broad discretion in weighing § 3553(a) factors.
  • United States v. Taylor, 997 F.3d 1348 (11th Cir. 2021): Court need not expressly mention every piece of mitigation.
  • United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015): Appellate courts do not reweigh factors.
  • United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008): A sentence well below the statutory maximum is a strong indicator of reasonableness.

Legal Reasoning

A. Fifth Amendment: No adverse inference from withholding safety‑valve leniency

The linchpin of Sheppard’s constitutional challenge was the claim that the sentencing court punished him for exercising his right to remain silent by noting he had not “stepped forward” to provide full information. The Eleventh Circuit rejected the claim for two independent reasons.

1. No adverse inference drawn. The district court never relied on Sheppard’s silence as an aggravating factor. At most, it recognized he had not met § 3553(f)(5)’s requirement to “truthfully disclose” all information about the offense. Recognizing ineligibility for statutory leniency differs categorically from inferring guilt or lack of remorse from silence under Griffin. The record contained no affirmative use of silence to increase punishment.
2. Withholding a benefit is not punishment. Consistent with Malekzadeh and acceptance‑of‑responsibility jurisprudence (Carroll), the court underscored a basic sentencing principle: a defendant who opts not to satisfy the safety‑valve’s disclosure condition is not penalized for silence; he simply fails to earn a benefit. The panel also flagged—and aligned itself with—sister‑circuit holdings upholding § 3553(f)(5)’s constitutionality because it conditions leniency on truthfulness rather than penalizing silence. Although the Eleventh Circuit did not issue a published holding on the safety‑valve’s constitutionality, it “expressed doubts” about any contrary view.

Procedurally, because Sheppard raised no objection below, plain‑error review applied. The panel found no error at all; thus the plain‑error framework ended at step one.

B. Procedural reasonableness

1. Adequacy of the upward‑variance explanation

Applying Gall and Rita, the panel held the district court gave a sufficiently individualized explanation. The court emphasized:

• Nature and scope of the offense: “a multi‑faceted, significant operation over a long period of time” involving “lots of different types of drugs” and “tremendous volume.”
• Why the Guidelines under‑captured seriousness: the scale and multi‑drug breadth were “not picked up in the guidelines.”
• Comparative proportionality: consideration of “other sentences that people get for the same conduct” (touching on disparity concerns under § 3553(a)(6)).

Because a district judge need not recite each § 3553(a) factor, this tailored explanation sufficed to support a modest 9‑month variance above the top of the 70–87 month range.

2. Alleged misapplication of U.S.S.G. §§ 4C1.1 and 2D1.1

The court found no Guidelines error.

• § 4C1.1 (zero‑point offender). The government candidly acknowledged the two‑level reduction was “legally appropriate” because Sheppard met all criteria, including having zero criminal history points. Although the government remarked that Sheppard was “a zero‑point offender, but not a first‑time offender” (referencing a previously dismissed indictment), the district court expressly stated it would not sentence him more harshly because of the dismissed case. The court correctly applied the reduction.
• Hypothetical range observation ≠ misapplication. The judge’s observation that the 96‑month sentence would fall in the mid‑range of a hypothetical calculation without the § 4C1.1 reduction did not undo the reduction. It simply contextualized the degree of the variance—a permissible part of explaining the final sentence.
• § 2D1.1 policy critique is substantive, not procedural. Sheppard’s argument that crack and oxycodone rules produce overly harsh ranges was properly characterized as a request for a policy‑based variance under Kimbrough—not a claim that the court miscalculated the range. As a result, it went to substantive reasonableness, not procedural error.

3. Record support for factual findings

There was no clear error. The PSI described multiple third‑party oxycodone purchases and both historical and controlled purchases involving Sheppard, supporting the characterizations of a prolonged, multi‑participant operation. Sentencing facts need only meet a preponderance standard, and unobjected‑to PSI statements are ordinarily taken as true. As to drug weights, any alleged misstatement was unpreserved and, critically, immaterial because the base offense level would be unchanged—rendering any error harmless.

C. Substantive reasonableness

The Eleventh Circuit found no abuse of discretion under Irey:

• Proper factors applied; improper factors avoided. The court repeatedly stated it had considered all § 3553(a) factors, highlighted general and specific deterrence, and focused on offense seriousness (volume, variety, number of participants). It acknowledged mitigation (character witnesses and letters) but found it outweighed.
• Degree of variance was modest and rationally tied to case‑specific aggravators.
• Below the statutory maximum (96 months vs. 480 months) further supported reasonableness.

Importantly, Sheppard’s substantive arguments largely repackaged rejected procedural claims. Because the district court neither misapplied the Guidelines nor relied on unsupported facts or adverse inferences from silence, nothing in the balancing amounted to a clear error of judgment.

Impact

• Fifth Amendment boundary at sentencing. This decision reinforces a practical and doctrinal line: district courts in the Eleventh Circuit do not violate the Fifth Amendment by recognizing a defendant’s failure to satisfy safety‑valve prerequisites. Absent record evidence of an explicit adverse inference from silence, there is no constitutional problem. Defense counsel who wish to preserve such an issue must object and build a record identifying the alleged inference.
• Sister‑circuit consensus on safety‑valve constitutionality echoed. While not a published Eleventh Circuit holding, the panel’s endorsement of other circuits’ reasoning signals that future published Eleventh Circuit authority may align with the view that § 3553(f)(5) withholds a benefit rather than punishes silence.
• Variance explanations: focused, offense‑specific reasoning suffices. Judges need not deliver an exhaustive § 3553(a) tour to justify modest variances; concrete references to scope, sophistication, and multi‑drug conduct are adequate if tied to why the Guidelines understate seriousness.
• Zero‑point offender reduction is not a cap on discretion. Receiving § 4C1.1’s two‑level reduction does not insulate a defendant from an upward variance. Courts may note the sentence’s relation to hypothetical calculations as part of explaining proportionality without “undoing” the reduction.
• PSI reliance and objections matter. Unobjected‑to PSI facts will support sentencing findings; weight disputes that do not affect the offense level are likely harmless. Practitioners should preserve specific factual objections and demonstrate materiality to the Guidelines calculus.
• Policy disagreements with drug Guidelines remain discretionary. Kimbrough authorizes—but does not require—variances based on policy. A court’s refusal to adopt a defendant’s policy critique rarely presents procedural error and will be reviewed for substantive reasonableness under a deferential standard.
• Unpublished but instructive. As a “DO NOT PUBLISH” decision, Sheppard is non‑precedential within the Eleventh Circuit, yet it offers persuasive guidance on how panels evaluate Fifth Amendment claims tied to safety‑valve ineligibility and the sufficiency of variance rationales.

Complex Concepts Simplified

• Safety valve (18 U.S.C. § 3553(f); § 3553(f)(5)). A statutory mechanism allowing a sentence below an otherwise applicable mandatory minimum if the defendant meets several criteria, including truthfully disclosing all information about the offense to the government. It does not require “snitching” on others; it requires full truthfulness about the defendant’s own conduct.
• Substantial assistance (18 U.S.C. § 3553(e)). A separate pathway to go below a mandatory minimum, triggered only by a government motion when a defendant materially helps prosecute others.
• Adverse inference from silence (Griffin). A judge or jury cannot treat a defendant’s silence as evidence of guilt or aggravation. Distinct from recognizing that a defendant failed to earn a discretionary reduction contingent on disclosure.
• Plain‑error review. Applies when an issue was not raised below. The appellant must show an error that is clear, affected substantial rights, and seriously affected the fairness or integrity of proceedings. It is a steep hill to climb.
• Procedural vs. substantive reasonableness.
  • Procedural: Were the Guidelines correctly calculated? Did the court treat the Guidelines as advisory? Did it consider § 3553(a) factors and adequately explain the sentence? Did it rely on clearly erroneous facts?
  • Substantive: Is the sentence, in light of the § 3553(a) factors, within the range of reasonable choices? Appellate courts defer to the district judge’s weighing.
• Variance vs. departure. A variance is a sentence outside the Guidelines based on § 3553(a). A departure is an adjustment authorized by the Guidelines themselves. Sheppard involved a § 3553(a) variance.
• Zero‑point offender reduction (U.S.S.G. § 4C1.1). A two‑level reduction for defendants with zero criminal history points who meet additional criteria. It recognizes reduced recidivism risk for first‑time offenders but does not guarantee a within‑range sentence or preclude variances.
• PSI (Presentence Investigation Report). A report prepared by probation that details offense conduct and background. Unobjected‑to factual statements are generally accepted as true for sentencing purposes.
• Preponderance standard at sentencing. Most sentencing facts need only be proven by “more likely than not,” a lower threshold than “beyond a reasonable doubt.”
• Statutory minimum vs. maximum. The minimum is the floor below which a judge ordinarily cannot go (absent safety‑valve or substantial assistance). The maximum sets the ceiling. A sentence well below the ceiling is often viewed as reasonable.

Conclusion

United States v. Sheppard reinforces several practical sentencing principles in the Eleventh Circuit. At the constitutional edge, it distinguishes impermissible adverse inferences from silence (punishment) from permissible recognition that a defendant failed to meet conditions for statutory leniency (withholding a benefit). On procedure, it underscores that succinct, offense‑specific reasons can justify a modest upward variance and that courts may reference the limits of the Guidelines’ accounting without misapplying them. On substance, it affirms wide judicial latitude to weigh deterrence and offense seriousness—especially in multi‑drug, high‑volume schemes.

For practitioners, the case is a cautionary tale about preservation: failing to object at sentencing converts most arguments into uphill plain‑error claims. It also confirms that the § 4C1.1 reduction is not a shield against upward variances and that unobjected‑to PSI facts will carry the day. Though unpublished, Sheppard meaningfully clarifies how the Eleventh Circuit is likely to view Fifth Amendment objections tied to safety‑valve ineligibility and what constitutes an adequate explanation for a variance anchored in the scope and complexity of a drug trafficking operation.