“More Than Minimal Planning” Includes Coordinated Travel and Instrument Procurement; Upward Variance for “Terroristic” Violence Affirmed — Commentary on United States v. Ruark (11th Cir. 2025)

“More Than Minimal Planning” Includes Coordinated Travel and Instrument Procurement; Upward Variance for “Terroristic” Violence Affirmed

Commentary on United States v. Shawn Ruark, No. 24-11672 (11th Cir. Sept. 2, 2025)

Introduction

In United States v. Ruark, the Eleventh Circuit affirmed a 180-month sentence imposed on a member of the Unforgiven, a white-supremacist organization, for two counts of assault in aid of racketeering (VICAR), in violation of 18 U.S.C. § 1959(a)(3). The appeal raised two primary issues:

  • Whether the district court clearly erred by applying the “more than minimal planning” enhancement under U.S.S.G. § 2A2.2(b)(1) to both assaults; and
  • Whether the upward-variance sentence was substantively unreasonable.

The Eleventh Circuit rejected both contentions. On the Guidelines issue, it endorsed district courts’ reliance on common-sense, record-supported inferences—such as coordinated travel, planning meetings, and the use of specialized tools—to find “more than minimal planning” in aggravated assault cases. On the reasonableness of the sentence, the court held that the district court’s emphasis on the “gratuitous, terroristic nature” of the violence and the defendant’s history of violent and firearms offenses justified a substantial upward variance that remained well below the statutory maximum.

Summary of the Judgment

  • Guidelines enhancement affirmed: The court upheld the two-level enhancement for “more than minimal planning” under § 2A2.2(b)(1) for both assaults. It found ample evidence of planning: a group meeting, coordinated travel of approximately 90 minutes between cities, gathering participants and multiple vehicles, and bringing a shotgun, brass knuckles, a blowtorch, and a tattoo gun.
  • Use of common-sense inference approved: The district court’s estimate of travel time, based on ordinary experience, was a permissible inference under Eleventh Circuit precedent when the defendant did not dispute it.
  • Substantive reasonableness affirmed: The 180-month sentence—an upward variance from a 100–125 month Guidelines range—was held reasonable in light of § 3553(a), given the brutality of the conduct, ideological motive, home invasions, and Ruark’s violent and firearm-laden criminal history. The sentence was also well below the 20-year-per-count statutory maximum.
  • Plain-error review of “trial-of-another” remarks: Ruark’s due process argument that the prosecutor referenced evidence from a co-defendants’ trial failed on plain-error review because he did not object below and the district court did not rely on those remarks in imposing sentence.

Factual Background and Procedural Posture

Ruark, affiliated with the Unforgiven, pled guilty (without a plea agreement) to two VICAR assaults. The assaults targeted fellow members:

  • Assault on C.S. (Count 12): After a group meeting in Satsuma, Florida, Ruark and others drove to Lake City, forcibly entered C.S.’s home, beat him, and cut out his Unforgiven “patch” tattoo with a knife. A shotgun was used to strike C.S. in the head at entry, leaving a permanent forehead scar.
  • Assault on W.H. (Count 13): Members confronted W.H. for rule violations, attacked him with hands and weapons (including brass knuckles and a metal cane), threatened to burn off tattoos with a torch, and ultimately forced him to permit tattooing over the Unforgiven mark on his neck; visible scarring remained.

The Presentence Investigation Report (PSI) recommended a total offense level of 27, including a two-level enhancement under § 2A2.2(b)(1) for more than minimal planning on each count, and a criminal history category IV, yielding a 100–125 month range. The district court overruled Ruark’s objections to the planning enhancements and imposed an upward variance to 180 months, followed by three years of supervised release, emphasizing the “gratuitous, terroristic nature” of the violence and Ruark’s violent and firearms history.

Detailed Analysis

Precedents Cited and Their Role

  • Two-step sentencing review: United States v. Trailer (11th Cir. 2016) frames the analysis into procedural and substantive reasonableness; the court applied this structure.
  • Standards of review:
    • De novo for interpreting Guidelines (United States v. Pulido, 11th Cir. 2025);
    • Clear error for factual findings (United States v. Mandhai, 11th Cir. 2004);
    • Plain error for unpreserved issues (United States v. Clark, 11th Cir. 2001; United States v. Utsick, 11th Cir. 2022).
  • Sources and methods for sentencing facts: Courts may rely on the plea-admitted facts, undisputed PSI statements, and hearing evidence (United States v. Matthews, 11th Cir. 2021), and may draw reasonable inferences from common sense and ordinary experience (United States v. Philidor, 11th Cir. 2013; United States v. Chavez, 11th Cir. 2009). The court also reaffirmed that judges need not limit themselves to empirical data, and can rely on experience from similar cases (United States v. Brenes-Colon, 11th Cir. 2025; United States v. Shaw, 11th Cir. 2009).
  • Guidelines commentary deference: United States v. Dupree (11th Cir. 2023) (en banc) cautions against deferring to commentary absent ambiguity, but where both parties rely on commentary and no party contests it, courts may consider it (United States v. Jews, 11th Cir. 2023). The panel applied the § 2A2.2 Application Note defining “more than minimal planning.”
  • Purpose and scope of “more than minimal planning”: United States v. Crawford (11th Cir. 2005) (quoting United States v. Scroggins, 5th Cir. 1989) emphasizes enhanced culpability for purposeful conduct with time to reflect. United States v. Tapia (11th Cir. 1995) reversed a planning enhancement where there was no evidence of repeated acts or coordination to assault an inmate; United States v. Jenkins (11th Cir. 1990) affirmed a planning enhancement where the quick, efficient execution of a theft implied pre-planning.
  • Substantive reasonableness metrics: United States v. Butler (11th Cir. 2022) and United States v. Rosales-Bruno (11th Cir. 2015) adopt the “ballpark of permissible outcomes” standard and permit courts to weight § 3553(a) factors differently. Courts may vary upward for violent offenders (United States v. Riley, 11th Cir. 2021), for uncharged conduct related to history and characteristics (Butler), and when the Guidelines insufficiently reflect criminal history (Butler). The justification must be commensurate with the degree of variance (United States v. Dougherty, 11th Cir. 2014), and reversal is warranted only on a “definite and firm conviction” of error in weighing § 3553(a) (United States v. Early, 11th Cir. 2012).
  • Use of evidence from another trial: United States v. Castellanos (11th Cir. 1990) cautions that evidence from a co-defendant’s trial may not be used over objection; here, the lack of objection triggered plain-error review and undercut the due process claim.
  • Preservation of reasonableness challenge: Holguin-Hernandez v. United States (U.S. 2020) confirms that arguing for a lower sentence preserves a substantive reasonableness challenge.
  • Clear error definition: United States v. Isaac (11th Cir. 2021) and In re Wagner (11th Cir. 2024) define the demanding “definite and firm conviction” threshold for reversing factual findings.
  • Comparative authority on ideology: United States v. Schmidt (7th Cir. 2019) supports the view that violent, ideologically motivated conduct can inform the need for incapacitation and deterrence under § 3553(a). The panel also noted a co-defendant’s sentence was affirmed in an unpublished Eleventh Circuit decision (United States v. Mikkelson, 2025), aligning with the disparity-avoidance principle (18 U.S.C. § 3553(a)(6)).

Legal Reasoning

1) “More Than Minimal Planning” under § 2A2.2(b)(1)

The panel applied the Application Note to § 2A2.2, which defines “more than minimal planning” as more planning than needed to commit the offense in its simple form, offering illustrative examples (e.g., luring a victim or using concealment such as a ski mask). The court underscored that these are examples, not elements; the absence of identity concealment or evidence destruction is not dispositive.

For Count 12 (C.S.), the court emphasized:

  • A group meeting where punishment was discussed;
  • Coordinated travel from Satsuma to Lake City (estimated 90+ minutes);
  • Gathering participants, vehicles, and a shotgun used at forced entry.

The extended travel and coordination afforded time “to consider the criminality of the act and its consequences” (Crawford), and the district court’s distance/time estimate was a permissible inference grounded in common sense (Philidor; Chavez). The defendant did not dispute that estimate, undercutting any claim of speculation-based error.

For Count 13 (W.H.), the court stressed:

  • Assembling participants to confront W.H.;
  • Bringing specialized tools—brass knuckles, a blowtorch, and a tattoo gun—to effectuate a forced “patch” removal or cover-up;
  • Coordinated roles (holding the victim down; brandishing a firearm at an intervenor; tattooing).

This conduct went well beyond a “simple form” assault; it reflected forethought, role allocation, and equipment procurement. The contrast with Tapia is stark: there, planning evidence was lacking; here, the record evinced purposeful, group-coordinated violence tailored to a specific objective (tattoo eradication), justifying the enhancement under clear-error’s deferential standard.

2) Substantive Reasonableness of the Upward Variance

The district court varied upward from 100–125 months to 180 months (approximately 44% above the top of the range), citing:

  • The “gratuitous, terroristic” nature of the violence;
  • Home-invasion assaults against victims in their dwellings—the very place of presumed safety;
  • Use and threatened use of weapons and tools (shotgun strike, brass knuckles, torch, firearm intimidation);
  • Ruark’s extensive violent and firearms history, including prior felon-in-possession and assaultive conduct;
  • The need to reflect offense seriousness, promote respect for law, deter, and protect the public (§ 3553(a)(2)).

The Eleventh Circuit affirmed. It reiterated that district courts may assign great weight to specific § 3553(a) factors (Butler; Rosales-Bruno), vary upward for violent offenders (Riley), and consider uncharged conduct and the context of ideology-fueled violence as bearing on risk and deterrence (Butler; Schmidt). That the sentence was below the statutory maximum (240 months per count) reinforced reasonableness. The court also rejected Ruark’s argument that the court should ignore the blowtorch because he personally did not bring it; the attack was planned jointly, and considering the totality of circumstances was proper in assessing offense severity under § 3553(a).

3) Due Process Claim about Co-Defendants’ Trial Evidence

Ruark asserted the prosecutor relied on testimony from a co-defendants’ trial to describe the offenses, violating due process because he could not cross-examine those witnesses. The court applied plain-error review because no objection was made. Under Castellanos, evidence from another trial “may not—without more—be used” if the defendant objects. Here, there was no objection, the sentencing court did not rely on the remarks, and Ruark identified no specific contested fact affecting his substantial rights. Result: no plain error.

Impact and Prospective Significance

  • Planning Enhancement Clarified: The decision reinforces that “more than minimal planning” can be shown by:
    • Coordinated, purposive travel to confront a victim;
    • Group meetings and role allocation;
    • Gathering specialized instruments to accomplish particular aims (e.g., tattoo removal/cover-up);
    • Time for reflection between the decision and the act.
    Defense arguments focusing solely on the absence of identity concealment or evidence-destruction will generally fail if broader coordination and preparation are present.
  • Common-Sense Judicial Inferences Approved: District courts may rely on geography, travel-time estimates, and other everyday inferences when the record supports them and the defendant does not meaningfully contest them.
  • Violent Ideology as Aggravator: Courts may treat ideologically motivated, terrorizing violence—especially home invasions and gang enforcement actions—as particularly aggravating under § 3553(a), supporting upward variances.
  • Criminal History Weight: Even if the Guidelines account for criminal history, courts retain “broad leeway” to give it more weight in varying upward if the range is deemed insufficient to protect the public or deter (Butler; Riley).
  • Preservation Matters: Defendants must object to references to evidence from other proceedings to preserve due process challenges. Silence will result in plain-error review and is unlikely to yield relief absent clear prejudice.
  • Guidelines Commentary Post-Dupree: When neither party disputes the commentary’s interpretive value and both rely on it, courts may continue to consult it (Jews), even as Dupree limits deference when the Guideline text is unambiguous.

Complex Concepts Simplified

  • VICAR (18 U.S.C. § 1959): “Violent crimes in aid of racketeering” penalize violent acts (like assault) committed to advance a racketeering enterprise’s interests (e.g., maintaining discipline within a gang).
  • U.S.S.G. § 2A2.2(b)(1): In aggravated assault cases, add two levels if the offense involved “more than minimal planning”—i.e., more planning than needed to commit the assault in a simple, spur-of-the-moment way.
  • Procedural vs. Substantive Reasonableness:
    • Procedural asks if the court used the right process: correct Guidelines calculation, consideration of § 3553(a), and explanation.
    • Substantive asks if the final sentence is reasonable considering the facts and § 3553(a) factors.
  • Clear Error: A highly deferential standard for factual findings, overturned only when the appellate court is firmly convinced a mistake occurred.
  • Plain Error: For issues not raised below. The appellant must show a clear error that affected substantial rights and seriously affects the fairness or integrity of proceedings.
  • Upward Variance vs. Departure: A variance is a sentence outside the Guidelines range based on § 3553(a). A departure changes the range under the Guidelines themselves. Ruark’s was a variance.
  • PSI (Presentence Investigation Report): A report compiled by probation to inform sentencing. Undisputed factual statements in the PSI may be relied on as sentencing facts.
  • “Ballpark of permissible outcomes”: Appellate courts will affirm as long as the sentence falls within a range of reasonable choices grounded in § 3553(a).

Practice Pointers

  • For defense counsel:
    • Object specifically to any reliance on evidence from other proceedings; otherwise, review is for plain error.
    • Counter “common-sense” inferences with concrete, contrary evidence (e.g., precise travel times, lack of role allocation, absence of special tools), not just argument.
    • To resist § 2A2.2(b)(1), emphasize spontaneity, lack of preparatory steps, and absence of coordinated roles or specialized instruments; challenge the PSI where warranted.
    • Where upward variance is probable, marshal mitigation: acceptance of responsibility, evidence of rehabilitation, support networks, mental health/substance abuse treatment prospects, age-related recidivism factors.
  • For prosecutors:
    • Develop a record of group planning, travel logistics, role assignments, and tool procurement to support “more than minimal planning.”
    • Tie ideology, victim vulnerability (home invasion), and community danger to § 3553(a)(2) goals.
    • If referring to co-defendants’ trial evidence at sentencing, be prepared to show independent, admissible support in the PSI or plea admissions; anticipate objections.
  • For sentencing courts:
    • Make explicit, record-based findings linking planning facts to § 2A2.2(b)(1).
    • When varying upward, articulate how each aggravator maps to specific § 3553(a) purposes and why the Guidelines range is insufficient, proportional to the degree of variance.

Conclusion

United States v. Ruark crystallizes two salient points in Eleventh Circuit sentencing law. First, “more than minimal planning” in aggravated assault does not hinge on cloak-and-dagger features such as masks or elaborate concealment. Coordinated travel, group decision-making, and the procurement of tools designed to achieve a specific, violent objective can suffice—especially when these facts afford time for reflection on the criminality of the act. Second, district courts possess broad discretion to impose upward variances for ideologically driven, terrorizing violence—particularly home invasions linked to organized groups—when justified by the § 3553(a) factors, even where the defendant’s criminal history is already reflected in the Guidelines.

The decision also underscores the importance of preservation: unobjected-to references to evidence from another proceeding will face steep plain-error hurdles on appeal. Although unpublished, Ruark is a practical roadmap for how the Eleventh Circuit will assess planning enhancements and violent-offense variances in complex gang and ideology-based crimes, and it offers concrete guidance to litigants and courts on building, challenging, and explaining sentencing records that will withstand appellate scrutiny.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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