“Beyond the Score”: Eleventh Circuit Confirms that Extensive Un-Scored Criminal History Alone May Support a Major Upward Variance – Commentary on United States v. Damian Brown (11th Cir. 2025)

Introduction

In United States v. Damian Brown, the Court of Appeals for the Eleventh Circuit confronted a familiar but increasingly contentious question in federal sentencing: when, and to what extent, can a district court depart upward from the U.S. Sentencing Guidelines on the basis of a defendant’s criminal conduct that is not formally “scored” under the Guidelines? Damian J. Brown, a felon convicted of possessing a firearm and ammunition, challenged a 108-month sentence—51 months above the top of his advisory Guideline range (46–57 months)—as substantively unreasonable. The panel, in a per curiam opinion, affirmed the district court, holding that Brown’s extensive un-scored criminal history, together with the need for deterrence and public protection, supplied a “significant justification” for the major variance.

This decision crystallises an important practical rule: in the Eleventh Circuit, a sentencing court may rely heavily—indeed, almost exclusively—on a defendant’s history of arrests, unscored juvenile adjudications, and similar misconduct to impose a sentence well outside the Guideline range, so long as the record furnishes a sufficiently detailed explanation tethered to the statutory factors in 18 U.S.C. § 3553(a).

Summary of the Judgment

Issue on Appeal: Whether Brown’s 108-month sentence constituted a substantively unreasonable upward variance.
Holding: The sentence is substantively reasonable; the district court did not abuse its discretion.
Key Rationale:
- Brown’s “egregious” conduct and overwhelming criminal history—much of which was not reflected in his Guidelines calculation—supplied a “significant justification.”
- The district court adequately weighed mitigating factors (e.g., substance-abuse struggles) by reducing the sentence 72 months below the statutory maximum.
- The explanation given satisfied the heightened requirement for a “major variance.”
Outcome: Conviction and sentence affirmed.

Detailed Analysis

Precedents Cited and Their Influence

The panel’s reasoning is anchored in three Supreme Court or Eleventh Circuit touchstones:

Gall v. United States, 552 U.S. 38 (2007) – Establishes deferential abuse-of-discretion review for all sentences and the need to consider the “totality of the circumstances.” Gall supplies the overarching framework.
United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) – Clarifies that “major variances” require a correspondingly “more significant justification.” The Brown panel quotes Irey to gauge whether the justification sufficed.
United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009) – Perhaps the most influential comparator. Shaw upheld an 83-month upward variance premised primarily on criminal history; the Brown panel analogises Brown’s record to Shaw’s, even noting that Brown’s history is arguably worse.

Additional circuit precedents—Rosales-Bruno, Butler, Pugh, Snipes, and Early—contextualise how courts weigh § 3553(a) factors, treat mitigating evidence, and review sentences for reasonableness.

Legal Reasoning

The panel applied the two-step substantive-reasonableness inquiry: (1) Did the district court correctly identify and weigh the statutory factors? (2) Was its ultimate sentence within the range of reasonable outcomes? Key aspects include:

Weight to Criminal History (Five § 3553(a) Factors). Echoing Rosales-Bruno, the opinion stresses that criminal history affects at least five different § 3553(a) factors, legitimising its outsized role.
Quantitative vs. Qualitative Analysis. While Brown’s PSR calculated three criminal history points, the district court counted 12 juvenile convictions, 21 “charged-but-not-convicted” juvenile offences, 63 adult arrests without adjudication, and a prior armed robbery. The panel treats this qualitative picture as more probative than the bare arithmetic score.
Comparative Evaluation with Shaw. By methodically lining up Brown’s history against Shaw’s, the court demonstrates consistent application of precedent—critical under Gall’s “totality” test.
Mitigation Addressed, But Not Controlling. Relying on Butler, the panel reiterates that a sentencing court need only consider, not acquiesce to, mitigating evidence such as substance abuse.
Proportional Explanation. Borrowing language from Early and Irey, the opinion affirms that the district court’s on-record analysis was “compelling enough”—especially after it shaved 72 months off the statutory maximum.

Impact of the Judgment

The Brown decision will likely reverberate in at least three ways:

Encouragement of Upward Variances Based on Arrest Data. Prosecutors may now feel emboldened to marshal arrest records and unscored juvenile misconduct to advocate for higher sentences, even when the advisory range is low.
Guidance for District Judges. The opinion functions as a checklist: recite the unscored conduct in detail, reference multiple § 3553(a) factors, compare to analogous case law, and explicitly connect the sentence length to deterrence/public safety.
Potential for Increased Appellate Deference. By reaffirming that criminal history can dominate the sentencing calculus, the Eleventh Circuit signals that it will rarely find upward variances substantively unreasonable as long as the sentencing judge builds a robust record.

Complex Concepts Simplified

Upward Variance vs. Departure. A “variance” refers to a sentence outside the Guideline range based on § 3553(a) factors; a “departure” occurs within the Guideline framework under specific policy statements. Brown concerns a variance.
Un-Scored Conduct. The Guidelines assign points only to certain prior convictions; arrests or juvenile adjudications older than a threshold often add zero points. “Un-scored” therefore means the misconduct affects no Guidelines points but can nevertheless influence sentencing via § 3553(a).
Substantive Reasonableness. Even if procedural steps (calculating Guidelines, hearing arguments, etc.) are flawless, the appellate court still asks whether the length of the sentence is “reasonable,” looking at the whole record.
Abuse of Discretion Standard. The appellate court does not substitute its judgment for the district judge’s; it reverses only if left with a “definite and firm conviction” that the lower court committed a clear error of judgment.
“Major” Variance. Not defined numerically, but any variance large enough to raise eyebrows—here, 51 months—triggers a need for a “significant justification.”

Conclusion

United States v. Damian Brown cements an important doctrinal point in Eleventh Circuit sentencing jurisprudence: a district court may impose a major upward variance where the defendant’s conduct history—though invisible in the Guidelines arithmetic—demonstrates sustained criminality and danger to the community. The decision underscores the primacy of § 3553(a)’s statutory goals over the advisory Guidelines, affirms wide appellate deference, and supplies a road map for judges and litigants navigating the boundary between guideline fidelity and pragmatic sentencing. For practitioners, the message is clear: unscored does not mean ignored, and a detailed record of past misconduct can carry decisive weight—even to the tune of doubling the advisory range.