United States v. Lawrence F. Curtin
Citation78 F.4th 1299
Date Filed2023-08-28
Docket22-10509
Cited34 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10509
____________________
UNITED STATES OF AMERICA,
Plaintiļ¬-Appellee,
versus
LAWRENCE F. CURTIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20102-wfjg-1
____________________
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2 Opinion of the Court 22-10509
Before WILSON, NEWSOM, and LUCK, Circuit Judges.
NEWSOM, Circuit Judge:
Lawrence Curtināwho has long struggled with serious
mental-health issuesāhas a pattern of threatening judges. This
case arises out of a threat that he recently made against a federal
magistrate judge in his hometown of Fort Pierce, Florida. Curtin
was convicted in federal court of (1) mailing a threatening commu-
nication, in violation of 18 U.S.C. Ā§ 876(c), and (2) threatening a
federal oļ¬cial, in violation of 18 U.S.C. Ā§ 115(a)(1)(B). For his
crimes, he was sentenced to 60 months in prison. Curtin now chal-
lenges his convictions and sentence on ļ¬ve grounds. After careful
consideration, we aļ¬rm.
I
The story underlying this appeal begins in 2012, when Cur-
tin was injured in a car wreck. The accident eventually spawned
four lawsuits and, more troublingly, two letters threatening
judgesāincluding the one underlying the convictions at issue here.
Here are the details: Curtin initially ļ¬led but lost a personal-injury
action in Florida state court. He followed up with back-to-back
civil suits in federal court. Both cases were initially assigned to
Magistrate Judge Shaniek Maynard, who recommended that they
be dismissed. Curtin separately complained to the Florida Judicial
Qualiļ¬cation Commission about the handling of his original case
by state-court Judge Janet Croom. The commission referred Cur-
tin for prosecution on the ground that his complaint contained a
threatāit invoked the āBiblical law which states an āeye for an eyeāā
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22-10509 Opinion of the Court 3
and expressed Curtinās view that he had an āobligation . . . to stop
Croom.ā The charges were ultimately dismissed, however, when a
Florida court found Curtin incompetent to stand trial.
Continuing his litigation ļ¬urry, Curtin ļ¬led yet another fed-
eral suit challenging the state-court decisionsāthis time adding the
āFlorida State Court Systemā as a defendant, alleging that it was (or
its members were) part of an organized-crime conspiracy. That
case, too, was assigned to Judge Maynard, who again recom-
mended dismissal. The objection that Curtin lodged in response to
Judge Maynardās report and recommendation forms the basis of
this case. Judge Maynard interpreted Curtinās objection as contain-
ing a threat to her and her family. Hereās the key passage:
WHERE IN MY JUNE 23, 2018 LETTER DO I
THREATEN DEATH OR BODILY HARM TO
[JUDGE] CROOM? NO WHERE! My June 23, 2018
letter as you will note is addressed to the judicial qual-
iļ¬cation commission ( JQC). YOU DO NOT
ADDRESS A LETTER TO THE JQC TO
THREATEN A JUDGES [SIC] PERSON. YOU
ADDRESS IT TO THE JQC TO THREATEN A
JUDGES [SIC] POSITION. Maynard is unable to un-
derstand this. I also named Maynard as an addier [sic]
and abetter. Maynard knew about the defendants re-
fusing my heart medication in an eļ¬ort to kill me yet
SHE COVERED IT UP.
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4 Opinion of the Court 22-10509
https://www.youtube.com/watch?v=a2vUNuX5Hg
l1
It is obvious from the totality of words in the song
including its title that I am threatening Maynard with
death and bodily harm. Also by holding onto the
hand of the preacher of color that I am threatening
Maynard who is a woman of color with death.
The YouTube clip featured a video of Curtin listening to the
gospel hymn āRoad to Gloryā in a church, approaching the pulpit,
and taking a black preacherās hand. Judge Maynard is black, and
her father was a pastor who had been working in the Fort Pierce
communityāwhere both Curtin and Judge Maynard livedāfor
about 20 years.
A jury convicted Curtin of mailing a threatening communi-
cation, in violation of 18 U.S.C. Ā§ 876(c), and of threatening a fed-
eral oļ¬cial, in violation of 18 U.S.C. Ā§ 115(a)(1)(B). He now ap-
peals, raising several challenges to his convictions and sentences.
We will take up Curtinās contentions in turn, and we will provide
additional factual and procedural detail as necessary.
II
Curtin ļ¬rst contends that there was insuļ¬cient evidence to
convict him. We review suļ¬ciency-of-the-evidence challenges de
1 The clip is accessible here. See Video, Doc. 198
(https://www.ca11.uscourts.gov/media-sources).
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22-10509 Opinion of the Court 5
novo, United States v. Kelly, 888 F.2d 732, 739ā40 (11th Cir. 1989),
making ā[a]ll factual and credibility inferencesā in the govern-
mentās favor, United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir.
2000). āIn order to ļ¬nd the evidence suļ¬cient, we need not ex-
clude every reasonable hypothesis of innocence or ļ¬nd the evi-
dence wholly inconsistent with every conclusion except that of
guilt, provided that a reasonable factļ¬nder could ļ¬nd that the evi-
dence establishes guilt beyond a reasonable doubt.ā Kelly, 888 F.2d
at 740. We consider Curtinās challenges to each of his convictions
separately.
A
To obtain a conviction under 18 U.S.C. Ā§ 876(c), the govern-
ment must prove beyond a reasonable doubt that the defendant (1)
knowingly sent a message through the mail, (2) knew that the mail-
ing contained a ātrue threat,ā and (3) intended (or at least knew)
that the statement would be viewed as a threat. 2 18 U.S.C. Ā§ 876(c);
2 Pointing to Elonis v. United States, 575 U.S. 723 (2015), the government sug-
gests that Ā§ 876(c)ās third element requires proof of purpose or intent. See Br.
of Appellee at 10; cf. also United States v. Mabie, 862 F.3d 624, 632 (7th Cir. 2017)
(accepting the governmentās āconce[ssion] that Ā§ 876(c) is a specific-intent
crime, requiring proof that [the defendant] sent his letter āfor the purpose of
issuing a threat, or with knowledge that the communication [would] be
viewed as a threatāā). That may be right. We note, though, that Elonis dealt
with a statute, 18 U.S.C. Ā§ 875(c), that contained no explicit mens rea element.
See 18 U.S.C. Ā§ 875(c) (āWhoever transmits in interstate or foreign commerce
any communication containing any threat . . . .ā). Section 876(c), by contrast,
begins with the phrase, āWhoever knowingly . . . .ā As the Supreme Court
has observed, ācourts ordinarily read a phrase in a criminal statute that intro-
duces the elements of a crime with the word āknowinglyā as applying that
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6 Opinion of the Court 22-10509
cf. United States v. Oliver, 19 F.4th 512, 517 (1st Cir. 2021) (reciting
Ā§ 876(c)ās elements). Curtin concedes that he knowingly mailed the
objection to Judge Maynardās report and recommendation. The
questions, therefore, are whether he knew that the mailing con-
tained a true threat and intended that Judge Maynard would view
it as such. 3
Curtinās mental state, of course, is provable through circum-
stantial evidence. See Liparota v. United States, 471 U.S. 419, 434
word to each element.ā Flores-Figueroa v. United States, 556 U.S. 646, 652
(2009); see also United States v. Bachmeier, 8 F.4th 1059, 1063ā64 (9th Cir. 2021)
(āOther provisions in Ā§ 876 criminalize actions āwith intent to extort,ā but sub-
section (c) contains no such language.ā); United States v. Chapman, 866 F.3d 129,
134 (3d Cir. 2017) (adopting a knowledge standard for Ā§ 876(c) after Elonis, but
without citing it). Ultimately, we neednāt decide the mens rea issue. Whether
Ā§ 876(c) requires purpose or intent, or something less, like knowledge, the ev-
idence hereāwhich weāll discuss in detailāis sufficient.
3 āāTrue threatsā encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.ā Virginia v. Black,
538 U.S. 343, 359 (2003). āThe speaker need not actually intend to carry out
the threatā; rather, āa prohibition on true threats āprotect[s] individuals from
the fear of violenceā and āfrom the disruption that fear engenders,ā in addition
to protecting people āfrom the possibility that the threatened violence will oc-
cur.āā Id. at 359ā60 (alteration in original) (quoting R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992)).
The Supreme Courtās recent decision in Counterman v. Colorado, 143 S.
Ct. 2106 (2023), which held that a state need only prove that a defendant acted
with a mens rea of at least recklessness in order to satisfy First Amendment
concerns, is irrelevant here. As explained in text, the record evidence suffi-
ciently demonstrates that Curtin acted with a mens rea of at least knowledge,
which surpasses recklessness.
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22-10509 Opinion of the Court 7
(1985); United States v. Hawley, 755 F.2d 788, 790 (11th Cir. 1985).
With respect to Ā§ 876(c)ās second and third elements, the strongest
items of evidence illustrating Curtinās state of mind are his own
words. In plain terms, Curtin stated in his objection that he
thought ā[i]t [was] obvious from the totality of words in the song
including its title that [he was] threatening Maynard with death and
bodily harmā and, further, that he was āthreatening Maynard who
is a woman of color with death.ā And as if to underscore his seri-
ousness, Curtin buttressed his words with all caps accusations (e.g.,
āSHE COVERED IT UPā), underlined emphasis (āMaynard is una-
ble to understand thisā), and an explicit reference to Judge
Maynardās race.
Curtin now implies that he was being sarcastic and insists
that, in any event, he didnāt intend the statement as a threat. Per-
haps. All that matters for present purposes, though, is that it
wouldnāt be unreasonable for a factļ¬nder to conclude, as the jury
here clearly did, that Curtin meant what he said and that he meant
to threaten Judge Maynard. And indeed, we have already rejected
a suļ¬ciency-of-the-evidence challenge in similar circumstancesā
there, where a defendant called his threat to assassinate the Presi-
dent āpolitical hyperbole.ā United States v. Callahan, 702 F.2d 964,
965ā66 (11th Cir. 1983) (distinguishing Watts v. United States, 394
U.S. 705, 707ā08 (1969)).
For similar reasons, we neednāt get bogged down in the par-
tiesā competing interpretations of the song, āRoad to Gloryāā
whether it was, as Curtin insists, an innocuous attachment or
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8 Opinion of the Court 22-10509
instead, as the government says, a broadening of the threat to in-
clude Judge Maynardās family. Given the applicable standard of re-
view, and construing the facts in the governmentās favor, we have
no trouble concluding that a reasonable jury could have found that
the video corroborated rather than mitigated Curtinās plain-lan-
guage threats.
In sum, there was ample evidence to support the juryās de-
termination that Curtin knowingly sent a true threat and intended
that it would be viewed as suchāand thus to convict him under
Ā§ 876(c).
B
For the same reasons, there was suļ¬cient evidence to con-
vict Curtin of threatening a federal judge in violation of 18 U.S.C.
Ā§ 115(a)(1)(B). That statute requires the government to prove be-
yond a reasonable doubt that the defendant (1) āthreaten[ed] to as-
sault, kidnap, or murderā a federal judge (2) with āintent to retali-
ateā against her āon account of the performance of oļ¬cial duties.ā
Id. As we have explained, a jury could reasonably have concluded
from the text and context of Curtinās objection that he meant to
threaten Judge Maynard with ādeathā and ābodily injuryāāi.e.,
āmurderā and āassaultā within the meaning of the statute. And
because he lodged his objection in response to Judge Maynardās re-
port and recommendation, the jury could also have reasonably
concluded that he threatened her in an eļ¬ort to āretaliateā against
her āon account of [her] performance of oļ¬cial duties.ā
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22-10509 Opinion of the Court 9
III
Curtin next argues that the district court erred when it de-
nied his motion to dismiss the indictment on the ground that the
government violated 18 U.S.C. Ā§ 4241(d). In relevant part, that pro-
vision states that a district court may commit a defendant to the
ācustody of the Attorney Generalā to be hospitalized for ātreat-
ment in a suitable facilityā if the ācourt ļ¬nds by a preponderance
of the evidence that the defendant is presently suļ¬ering from a
mental disease or defect rendering him mentally incompetent.ā Id.
Importantly here, the statute goes on to say that the defendantās
hospitalization is authorized only for āa reasonable period of time,
not to exceed four months, as is necessary to determine whether
there is a substantial probability that in the foreseeable future he
will attain the capacity to permit the proceedings to go forward.ā
Id. Ā§ 4241(d)(1).
Here are the facts relevant to Curtinās Ā§ 4241(d) challenge:
Curtin was originally arrested and detained on August 24, 2020,
and a week later he was denied release under the Bail Reform Act
on the ground that he was a ādanger to the community.ā See 18
U.S.C. Ā§ 3142. Several months later, on November 24, the district
court ordered Curtin hospitalized pursuant to Ā§ 4241(d), as all
agreed that Curtin was not at that time competent to proceed. Un-
fortunately, because of what the government has described as ālo-
gistical challenges and a backlog at [its] psychiatric facilities,ā Cur-
tin didnāt arrive at the hospital until March 22, 2021. At the end of
the statutory four-month period on July 22, Curtin requested trans-
fer back to the detention facility in Miami, and the next day he
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10 Opinion of the Court 22-10509
moved to dismiss his indictment on the ground that he had been
hospitalized too long. A few weeks later, with Curtin still in the
hospital, the district court held that the government had indeed vi-
olated Ā§ 4241(d) by keeping him beyond the four-month mark.
Even so, the court rejected Curtinās contention that dismissal was
the proper remedy. Instead, it ordered Curtin discharged from the
hospital and returned to detention. In mid-September, the court
and the parties received a psychiatric report from the government
hospital explaining that Curtinās competency had been restored.
The judge accordingly found Curtin competent to proceed.
We review the denial of a motion to dismiss an indictment
for abuse of discretion. See United States v. Castaneda, 997 F.3d 1318,
1325(11th Cir. 2021) (quoting United States v. McPhee,336 F.3d 1269, 1271
(11th Cir. 2003)). Of course, ā[a] district court by deļ¬nition
abuses its discretion when it makes an error of law.ā Koon v. United
States, 518 U.S. 81, 100 (1996).
As best we can tell, Curtin makes three Ā§ 4241(d)-related ar-
guments. First, and most fundamentally, he contends (as he did
below) that he was hospitalized beyond the statuteās four-month
deadline and that the only proper remedy for that over-detention is
dismissal of the indictment. Second, he contends that the district
court miscalculated the length of his hospitalization, which he says
should be deemed to have begun with the commitment order on
November 24, 2020, rather than when he physically arrived at the
facility on March 22, 2021. Finally, he asserts that the government
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22-10509 Opinion of the Court 11
doctorsā report detailing their competency ļ¬ndings should have
been submitted within the four-month period.
We can make quick work of Curtinās second and third argu-
ments. As for the former, we conclude that Curtin invitedāand
thereby waived any claim with respect toāthe error that he now
presses. In the district court, Curtin ļ¬led a reply expressly
āagree[ing]ā that āthe four-month period authorized under
Ā§ 4241(d)(1) began on March 22, 2021 and ended on July 22, 2021.ā
Doc. 78 at 2. And with respect to the latter, there is simply no ļ¬rm
footing in Ā§ 4241(d)ās text for a requirement that psychiatric ļ¬nd-
ings be released or received within the four-month period. That
provision prescribes a āreasonable period of time, not to exceed
four months,ā in which the government may āhospitalize the de-
fendant.ā 18 U.S.C. Ā§ 4241(d) (emphasis added). To be sure, it goes
on to say that the hospitalizationās purpose is to ādetermineā
whether the defendantās competency can be restored, but it would
stretch the text too far to hold that it imposes a hard deadline for
the delivery of the report memorializing that determination. Cf.
United States v. Magassouba, 544 F.3d 387, 407ā08 (2d Cir. 2008) (āNo
oneās interestsānot the partiesā, not the courtās, and not the pub-
licāsāare well served by encouraging undue haste in Ā§ 4241(d)(1)
evaluations.ā).
That leaves us with Curtinās principal objectionāthat he
was actually, physically hospitalized for longer than the four
months that Ā§ 4241(d) permits. The government concedes that it
violated Ā§ 4241(d). See Br. of Appellee at 22 (āAgain, the parties
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12 Opinion of the Court 22-10509
agree that [the government hospital] held Curtin for more than
four months.ā). The dispute concerns the appropriate remedy. For
his part, Curtin insists that, having concluded that he was hospital-
ized in violation of the statute, the district court should have dis-
missed the indictment against him.
We disagree. As an initial matter, thereās no particular rea-
son to thinkāat least none has been explained to usāthat dismissal
would be the (or even an) appropriate response to a Ā§ 4241(d) vio-
lation, there being no clear logical relationship between the wrong
(over-detention) and the remedy (expungement of the entire case).
Nor has Curtin pointed us to any precedent that supports his dis-
missal request. United States v. Donofrio, 896 F.2d 1301 (11th Cir.
1990), on which he principally relies, is oļ¬-point. To be sure, we
held there that Ā§ 4241(d)ās four-month deadline is āmandatory,ā but
we said nothing about the appropriate remedy, let alone that a vio-
lation would warrant dismissal of the indictment. See id. at 1302.
Finally, nothing in Dolan v. United States, 560 U.S. 605 (2010),
can be read to suggest that dismissal would be the proper remedy
for a Ā§ 4241(d) violation. The Supreme Court there sorted statu-
tory deadlines into three categoriesājurisdictional limitations,
claims-processing rules, and time-related directivesāand then set
out to determine the eļ¬ect of each with respect to the particular
āaction to which the statute attached the deadline.ā Id. at 609ā10.
We neednāt decide here the precise nature of Ā§ 4241(d)ās four-
month deadline, because even if it were jurisdictional, it would at
most have deprived the district court of the authority to perform
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22-10509 Opinion of the Court 13
āthe action to which the statute attache[s] the deadlineāānamely,
an inmateās continued hospitalization. Section 4241(d), that is, au-
thorizes and limits hospitalizations; it does not authorize, or pur-
port to limit, prosecutions. The most, therefore, that Curtin could
get out of Dolan would be an order requiring his releaseāwhich is
exactly what he got.
In sum, Curtin has oļ¬ered no persuasive justiļ¬cation for dis-
missing his indictment as a means of remedying the admitted vio-
lation of Ā§ 4241. The district court did not abuse its discretion in
denying his motion to dismiss. 4
IV
Curtin next challenges the failure of the entire bench of the
Southern District of Florida to recuse sua sponte from his case. Dif-
ferent judges from that district presided over Curtinās pretrial pro-
ceedings for more than a year, including those resulting in his
4 To the extent that Curtin raises a due process challenge to his over-hospital-
ization, we reject it for two reasons. First, as explained in text, Curtin was
originally detained under the Bail Reform Act, 18 U.S.C. Ā§ 3142, and that de-
tention would presumably have continued even if he had never been hospital-
ized pursuant to Ā§ 4241(d). Second, Curtin wasnāt detained long enough to
violate the Due Process Clause under Jackson v. Indiana, which held only that
an incompetent defendant canāt constitutionally be confined beyond āthe rea-
sonable period of time necessary to determine whether there is a substantial
probability that he will attain that capacity in the foreseeable future.ā 406 U.S.
715, 738ā39 (1972) (finding a due process violation when an incompetent de-
fendant had been detained more than three years). Compare, e.g., Magassouba,
544 F.3d at 419 (holding that an inmateās 19-month detention under Ā§ 4241(d)
did not violate the Due Process Clause
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14 Opinion of the Court 22-10509
Ā§ 4241(d) hospitalization, before, in September 2021, his lawyer re-
quested that the court recuse itself and transfer proceedings to the
Middle District of Florida. The motion was unopposed, and trial
occurred in the Middle District. Curtin now contends that all
Southern District judges should have sua sponte recused from his
case earlier.
We review recusal decisions for abuse of discretion. United
States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004). But when a
party fails ļ¬rst to seek recusal in the district courtāassuming of
course that, as here, he challenges a district courtās failureāwe re-
view only for plain error. See Hamm v. Members of Bd. of Regents,
708 F.2d 647, 651 (11th Cir. 1983). For Curtin to surmount the high
plain-error bar, he must show not only that an error occurred, but
also that it was plain, that it aļ¬ected his substantial rights, and that
it āseriously aļ¬ects the fairness, integrity, or public reputation of
judicial proceedings.ā Olano v. United States, 507 U.S. 725, 732ā36
(1993) (alteration accepted) (quotation omitted).
We neednāt decide whether any of the Southern Districtās
judges erred by failing to recuse because we conclude that any er-
ror, if one occurred, wasnāt plain. āIt is the law of this circuit that,
at least where the explicit language of a statute or rule does not
speciļ¬cally resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly re-
solving it.ā United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003).
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22-10509 Opinion of the Court 15
Neither the recusal statute nor our general pronouncements
about it provide a hard-and-fast rule of the sort that might satisfy
the plain-error standard. The statute provides that ā[a]ny justice,
judge, or magistrate judge of the United States shall disqualify him-
self in any proceeding in which his impartiality might reasonably
be questioned.ā 28 U.S.C. Ā§ 455(a). We have described Ā§ 455(a)ās
standard, in general terms, as asking whether an āobjective, disin-
terested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a signiļ¬cant
doubt about the judgeās impartiality.ā United States v. Scrushy, 721
F.3d 1288, 1303 (11th Cir. 2013). At least on its own, that fact- and
context-speciļ¬c standard doesnāt āspeciļ¬cally resolveā the recusal
issue in Curtinās favor.
Nor does the most analogous case, In re Moody, 755 F.3d 891
(11th Cir. 2014), ādirectly resolveā matters. For starters, the Moody
Court itself emphasizedāas just explainedāthat ā[r]ecusal deci-
sions under āĀ§ 455(a) are extremely fact driven and must be judged
on their unique facts and circumstances more than by comparison
to situations considered in prior jurisprudence.āā Id. at 895 (quot-
ing Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)). The Court
then proceeded to consider four factors in concluding that a panel
of Eleventh Circuit judges didnāt have to recuse from proceedings
involving a defendant convicted of a former Eleventh Circuit
judgeās murder: (1) None of the three judges whose recusal the
defendant sought served on the circuit at the time of the murder;
(2) none was clerking on the court at the time; (3) no judge āen-
joyed a close personal or professional relationship with [the victim
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16 Opinion of the Court 22-10509
judge] or with any member of his immediate familyā; and (4) the
two circuit judges who had taken part in the State of Alabamaās
prosecution had already recused. Id. at 895ā96. Nothing in Moodyās
fact-intensive analysis ādirectly resolve[s]ā the question whether all
judges in a federal judicial district must recuse in a case involving a
threat to another judge in the district. 5
The district court did not plainly err by failing to sua sponte
recuse from Curtinās case.
V
Finally, Curtin contests both the procedural and substantive
reasonableness of his sentence. We consider each challenge in
turn.
A
Curtin ļ¬rst alleges that the district court committed proce-
dural error by miscalculating his Guidelines range. The Supreme
Court has explained that āsigniļ¬cant procedural error[s]ā include
āfailing to calculate (or improperly calculating) the Guidelines
5 Curtin contends that Moody ārejected a more stringent test from other cir-
cuits requiring recusal only when the presiding judge was also a potential vic-
tim.ā Br. of Appellant at 43ā44. We disagree. To the contrary, the Moody
panel at least implicitly rejected the broad rule that Curtin proposesānamely,
that all judges in a district must recuse after one is threatened. See 755 F.3d at
896. Instead, the panel adopted a narrow interpretation of a relevant Seventh
Circuit decision: āAs we read it, Nettles stands for the proposition that
. . . judges [who] were potential victims of the alleged attackā āmust recuse.ā
Id.(citing In re Nettles,394 F.3d 1001
(7th Cir. 2005)); see alsoid.
(citing Clemens
v. U.S. Dist. Ct. for Cent. Dist. of Ca., 428 F.3d 1175, 1179ā80 (9th Cir. 2005)).
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22-10509 Opinion of the Court 17
range, treating the Guidelines as mandatory, failing to consider the
Ā§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentenceāinclud-
ing an explanation for any deviation from the Guidelines range.ā
Gall v. United States, 552 U.S. 38, 51 (2007). When we review for
procedural error, we consider a ādistrict courtās interpretation of a
sentencing guideline provision or term de novo.ā United States v.
Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014).
Curtin contends, in particular, that the district court miscal-
culated his Guidelines range when it declined to apply a four-point
reduction under U.S.S.G. Ā§ 2A6.1(b)(6), which decreases the base
oļ¬ense level if āthe oļ¬ense involved a single instance evidencing
little or no deliberation.ā We disagree; we think it clear that Cur-
tinās threat involved ample ādeliberation.ā Curtin (1) composed his
objection; (2) tailored it to his victim, in particular with an empha-
sis on her race; (3) took the time and energy to embed a video in it;
(4) tried to deliver it in person, to no avail; and then (5) mailed it.
That is more than enough to defeat Ā§ 2A6.1(b)(6)ās application. The
district court did not err in concluding that Curtin failed to qualify
for the four-point reduction.
B
Curtin separately argues that his 60-month sentence is sub-
stantively unreasonableāprincipally, he says, because the judge
considered an improper factor during the hearing.
We review a criminal sentenceās substantive reasonableness
under an abuse-of-discretion standard, even when, as here, it is
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18 Opinion of the Court 22-10509
above the Guidelines range. See Gall, 552 U.S. at 51. A district court
commits substantive error, and abuses its discretion, āwhen it (1)
fails to aļ¬ord consideration to relevant factors that were due signif-
icant weight, (2) gives signiļ¬cant weight to an improper or irrele-
vant factor, or (3) commits a clear error of judgment in considering
the proper factors.ā United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th
Cir. 2006) (en banc) (Birch, J., dissenting)). āThe party challenging
the sentence bears the burden of establishing that the sentence is
unreasonable . . . .ā United States v. Early, 686 F.3d 1219, 1221 (11th
Cir. 2012). ā[A] major variance does require a more signiļ¬cant jus-
tiļ¬cation than a minor one.ā Irey, 612 F.3d at 1196.
As evidence that the judge considered an improper factor,
Curtin points to the following statement, which the judge made
toward the beginning of the sentencing hearing:
And I do want to say for the record thereās some dis-
pute in the record as to the phrase āroad to glory.ā I
will say I donāt put any stead in it and donāt base any
sentence on it, but Iām very, very familiar with what I
would call Evangelical-type Protestant churches. I
grew up in one. And until I could get out of it, we
went to church three times a week, Sunday morning,
Sunday night, and Wednesday night. And āglory,ā the
reference to āglory,ā in that milieu means heaven. It
doesnāt mean glory like we might think George
Washington got glory at the end of the Revolutionary
War. Protestants in that type of church when they say
āglory,ā that means heaven. Sometimes they say, my
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22-10509 Opinion of the Court 19
motherās passed; sheās in glory. So again, I donāt put
any stead on it. I donāt hinge any sentence on it, but
to the extent thatās a dispute in the record, I have to
tell you what my experience is, and Iām quite certain
about that.
The judge said more than that, though. Toward the end of
the hearing, the judge emphasized two other reasons as justifying
the sentenceānamely, Curtinās pattern of threatening behavior
and his focus on Judge Maynardās race:
And pursuant to Title 18 United States Code 3551 and
3553, itās the judgment of the Court that Mr. Curtin
is committed to the Bureau of Prisons for an upward
variance of 60 months. The reason why is this is a
pattern. When I get letters that weāre going to send a
microwave machine or ask permission to blow the
brains out of Chief Judge King and that we want
sweat, perspiration to poor [sic] from Judge Croomās
armpit, I donāt know why it is that we keep sending
letters to judges. We have an ongoing, disturbing
conversation in writing with Judge Bert Jordanā
Adalberto Jordan. Iām so bad at that. This is a pat-
tern, and the pattern escalated and it escalated, and I
wasnāt really impressed with this tincture, if thatās the
word, this piece of reference to race in this threat.
You know, this is an older white gentleman threaten-
ing a young African-American female. And I guess
there was some reason to comment on race, but from
the victimās point of view, thereās a little bit of history
in Florida, and that littleāit wasnāt, you know, like
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20 Opinion of the Court 22-10509
terrible, but that little reference was gratuitous and
added to what was a clear threat. So the upper vari-
ance is because of the pattern, the need to respect the
law, which is grossly disrespected, and the need for
public safety.
And he says, well, he hasnāt hurt anybody. Well, yes,
these threats are hurtful. Someone gets a letter where
someone is suggesting we are going to blow their
brains out or Iām going to threaten Magistrate Judge
Smith in Orlando with bodily injury and death,
theyāre very hurtful. Thank God it hasnāt escalated
further. So itās public safety and the repeated pattern
that I see over a course of many years, almost to the
point where marshals beat the path out there to do a
threat assessment every time one of these letters
comes.
The judge ultimately imposed a 60-month sentence, nearly
doubling the governmentās requested 33 months, which was al-
ready āat the top of the guidelinesā range. Curtinās attorney gen-
erally objected to the āreasonableness of this sentence under 18
U.S.C. Ā§Ā§ 3551 and 3553ā and, more speciļ¬cally, requested that Cur-
tin be designated to a facility that could care for his serious physical-
health needs and objected to the āupward variance given . . . the
lack of consideration of his mental health issues.ā The judge re-
sponded that he would recommend the suggested facility and ex-
plained his decision: āIām very aware of his health. And frankly, if
it werenāt for that he would have gotten a higher sentence.ā Cur-
tinās lawyer once more objected to a ālack of consideration of his
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22-10509 Opinion of the Court 21
mental health issues.ā Again, the judge responded: āOh, I have
taken that into consideration. I have taken everything. And it is
my conclusion based upon the statutory factors that this sentence
is suļ¬cient but not greater than necessary to respond to those stat-
utory factors in 18 U.S.C. [Ā§] 3553. . . . [T]his is a long, ongoing pat-
tern . . . .ā
Curtin now argues that his sentence is substantively unrea-
sonable on the grounds that the district court (1) considered an im-
proper factor when he commented on the religious terminology in
the YouTube video, (2) failed to properly weigh Curtinās physical-
and mental-health issues, and (3) over-emphasized Curtinās history
of sending threatening letters to judges.
We can quickly dispense with Curtinās second and third sub-
stantive-reasonableness challenges. As to the second, the district
judge properly considered Curtinās physical- and mental-health is-
sues and history. The judge speciļ¬cally stated that he had ac-
counted for them and, indeed, said that he would have imposed a
higher sentence if it werenāt for them. As to the third, we ļ¬nd that
the judge appropriately considered and weighed Curtinās repeated
threats to judges. As we will explain, that pattern of threats, when
combined with the evidence of racial animus, amply supports the
judgeās above-Guidelines sentence.
Before we get there, though, we must address Curtinās ļ¬rst
challengeāhis contention that the judge considered an improper
factor when he commented on the religious language and imagery
in the āRoad to Gloryā song. This, we think, presents a closer
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22 Opinion of the Court 22-10509
question. On the one hand, the Ā§ 3553(a) factors clearly donāt in-
clude reliance on oneās own personal religious experience. See 18
U.S.C. Ā§ 3553(a). In fact, the Sentencing Guidelines make clear that
consideration of religion generally (without specifying the defend-
antās or the judgeās) is an improper factor. See U.S.S.G. Ā§ 5H1.10.
And the judge did go on at some length about his personal experi-
ence with evangelical lingo. On the other hand, the judge expressly
disclaimed any reliance on that experience, twice stating that he
didnāt āput any steadā in it and, separately, that he didnāt āhinge any
sentence on it.ā Cf. United States v. Schwarzbaum, 24 F.4th 1355, 1364
(11th Cir. 2022) (stating that we would ātake the district court at its
wordā when it described its sentence).
We neednāt decide here whether the judge considered an im-
permissible factor because any error was harmless. See United
States v. Williams, 456 F.3d 1353, 1362 (11th Cir. 2006) (stating that
we assess harmlessness after the party challenging the sentence car-
ries his āinitial burdenā of establishing that the court considered an
āimpermissible factorā), abrogated on other grounds, Kimbrough v.
United States, 552 U.S. 85 (2007). ā[A] district courtās consideration
of an impermissible factor at sentencing is harmless if the record
as a whole shows the error did not substantially aļ¬ect the district
courtās selection of the sentence imposed.ā Williams, 456 F.3d at
1362.
Here, as already explained, the judge expressly considered
two other factors when making his sentencing decision, both of
which he cited as bases for an upward departure: (1) Curtinās
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22-10509 Opinion of the Court 23
history of making threats; and (2) the evidence of racial animus.
See, e.g., Doc. 212-16 at 1 (showing Curtin writing to Judge Sterling
Johnson, a district court judge in New York, for permission to
āblow [U.S. District Court Judge] James Lawrence Kingās brains out
of his headā because āKing had a secret meeting where he incited
others to do this to me and it is clearly a precept of Emmanuel
Kantās āLet the Punishment ļ¬t the crime.āā). 6 We think that these
two factors alone pass muster as āsigniļ¬cant justiļ¬cation[s]ā for the
upward variance, Irey, 612 F.3d at 1196, especially given the defer-
ence we give district courts in sentencing matters. So even if the
district judgeās reference to his own religious experience was im-
proper, it didnāt āsubstantially aļ¬ect [his] selection of [Curtinās] sen-
tenceāāand, therefore, was harmless. Williams, 456 F.3d at 1362.
VI
For the foregoing reasons, we AFFIRM Curtinās convictions
and sentence.
6 A sentencing judge may impose an upward variance based on uncharged
conductāhere, the pattern of threatsāwhen it relates to the defendantās his-
tory or characteristics. See United States v. Overstreet, 713 F.3d 627, 637ā38 (11th
Cir. 2013).
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NEWSOM, Circuit Judge, concurring:
Among the many issues that this case presents, one recurs
with some frequency, and our treatment of it has always struck me
as a little odd. Our precedent has (albeit haphazardly) categorized
a criminal defendantās argument that the district court considered
an impermissible factor in imposing a sentence as a challenge to
the sentenceās āsubstantiveā reasonableness, rather than an allega-
tion of āproceduralā error. See Maj. Op. at 17. That didnātāand
for reasons Iāll explain, still doesnātāmake much sense to me. So I
decided to look into it.
The deeper I dug, though, the more problems I uncovered.
As it turns out, our sentencing precedent is pretty hopelessly con-
ļ¬ictedānot only with respect to the categorization of particular
sentencing-related challenges as āsubstantiveā or āprocedural,ā but
also with respect to the rules that govern the preservation of those
challenges for appeal and, as a result, the standards by which we
review alleged sentencing errors. In the pages that follow, I hope
to (1) unmask the contradictions in our precedent and (2) brieļ¬y
propose a better way of classifying and adjudicating sentencing-re-
lated challenges.
I
As presented to us, the sentencing issues in this case ap-
peared to be pretty straightforward. Curtin raised two familiar sen-
tencing challenges: In fixing his 60-month prison sentence, Curtin
complained, the district judge had both miscalculated his Guide-
lines range and considered an impermissible factor.
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2 Newsom, J., Concurring 22-10509
What started as benign curiosity about the genesis and ra-
tionality of our treatment of a sentencing courtās consideration of
an impermissible factor as a substantive error turned into a pretty
wild ride. Along the way, I discovered that our precedent is con-
fusedāand frankly, just sloppyāin at least two respects: (a) how
weāve gone about categorizing sentencing-related challenges as
substantive or procedural and (b) what weāve said a defendant
needs to do to preserve those challenges. Iāll try to explain those
bodies of law (such as they are) in turn. Then, having done that,
Iāll oļ¬er in the next Part a few ideas for setting things straight.
A
Iāll start with our classiļ¬cation of sentencing challenges as
substantive or proceduralāand, in particular, with the challenges
that Curtin has presented here. First, Curtin contends that the dis-
trict court miscalculated his Guidelines range by refusing to apply
a four-point reduction under U.S.S.G. Ā§ 2A6.1(b)(6). See Maj. Op. at
16ā17. That, the Supreme Court has told us, is a quintessential
āproceduralā error. Most notably, in Gall v. United Statesāwhich
for all intents and purposes minted the āsubstantiveā and āproce-
duralā labelsāthe Court oļ¬ered an illustrative (if partial) list of
āprocedural error[s],ā as follows:
[T]he appellate court . . . must ļ¬rst ensure that the
district court committed no signiļ¬cant procedural er-
ror, such as [1] failing to calculate (or improperly calcu-
lating) the Guidelines range, [2] treating the Guidelines
as mandatory, [3] failing to consider the Ā§ 3553(a) fac-
tors, [4] selecting a sentence based on clearly
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22-10509 Newsom, J., Concurring 3
erroneous facts, or [5] failing to adequately explain
the chosen sentenceāincluding an explanation for
any deviation from the Guidelines range.
552 U.S. 38, 51 (2007) (emphasis and enumeration added). So, Su-
preme Court precedent is clear: An argument that the sentencing
court āimproperly calculate[ed ] the Guidelines rangeā isāobjec-
tively, veriļ¬ablyāan allegation of āprocedural error.ā Id. Happily,
our precedent has consistently tracked the Supreme Courtās own.
In United States v. Pugh, we accurately recited the Supreme Courtās
catalogue of āprocedural error[s]ā as including the āfail[ure] to cal-
culate (or improperly calculating) the Guidelines range.ā 515 F.3d
1179, 1190 (11th Cir. 2008). So far as I can tell, weāve since re-
mained faithful to that clearāand correctāholding. See, e.g.,
United States v. Shaw, 560 F.3d 1230, 1237-38 (11th Cir. 2009); United
States v. Dougherty, 754 F.3d 1353, 1358ā59 (11th Cir. 2014).
The story with respect to the second error that Curtin al-
legesāthat, in imposing his sentence, the district court considered
an impermissible factor, see Maj. Op. at 17ā21āis more compli-
cated. With respect to the classiļ¬cation of that issue, our precedent
is both embarrassingly inconsistent and, to the extent that it can be
deemed to provide an answer, wrong. So far as I can tell, Pugh had
the ļ¬rst word about how to characterize an impermissible-factor
challenge like Curtinās. There, quoting a pre-Gall decision, we said
that ā[a] sentence may be substantively unreasonable when the dis-
trict court . . . bases the sentence on impermissible factors.ā 515
F.3d at 1191ā92 (alteration in original) (emphasis added) (quoting
United States v. Ward, 506 F.3d 468, 478 (6th Cir. 2007)). Just months
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4 Newsom, J., Concurring 22-10509
later, though, we said in United States v. Livesay that the considera-
tion of an impermissible factor constitutes āproceduralā error. 525
F.3d 1081, 1092 (11th Cir. 2008). But any rule that might have em-
anated from Livesay appears not to have taken hold because sitting
en banc two years later we reiterated the view that a sentencing
courtās consideration of an impermissible factor implicates sub-
stantive (rather than procedural) reasonableness. See United States
v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). And to the
extent that Pugh, Livesay, and Irey left any doubt, United States v. Le-
bowitz, 676 F.3d 1000 (11th Cir. 2012), seemed to resolve it. There,
we heldāagain, and quoting Ireyāthat a sentence may be substan-
tively unreasonable when the district court āgives signiļ¬cant weight
to an improper or irrelevant factor.ā Id.at 1016 (quoting Irey,612 F.3d at 1189
).
The settlement, though, was short-lived. Hereās a rough
chronological post-Lebowitz summary of our published, preceden-
tial caselaw regarding impermissible-factor challenges:
2014 United States v. Vandergrift, 754 F.3d 1303,
1308 (11th Cir. 2014) (procedural)
2015 United States v. Rosales-Bruno, 789 F.3d 1249,
1256 (11th Cir. 2015) (substantive)
2015 United States v. Cavallo, 790 F.3d 1202, 1236ā
38 (11th Cir. 2015) (substantive)
2017 United States v. Alberts, 859 F.3d 979, 985
(11th Cir. 2017) (procedural)
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22-10509 Newsom, J., Concurring 5
2022 United States v. Coglianese, 34 F.4th 1002,
1007 (11th Cir. 2022) (procedural)
2022 United States v. Butler, 39 F.4th 1349, 1355
(11th Cir. 2022) (substantive)
2023 United States v. King, 57 F.4th 1334, 1340
(11th Cir. 2023) (procedural)
2023 United States v. Oudomsine, 57 F.4th 1262,
1266 (11th Cir. 2023) (substantive)
Totally unsurprisingly, our unpublished caselaw is just as dis-
sonant, if not more so. Compare, e.g., United States v. Bryant, 809 F.
Appāx 609, 617 (11th Cir. 2020) (categorizing the consideration of
an impermissible factor during sentencing as a procedural error);
United States v. Cooper, 779 F. Appāx 588, 593 (11th Cir. 2019) (same);
United States v. Fox, 650 F. Appāx 734, 738ā39 (11th Cir. 2016) (same);
United States v. Salas-Argueta, 249 F. Appāx 770, 772 (11th Cir. 2007)
(same), with, e.g., United States v. Scott, 496 F. Appāx 992, 995 (11th
Cir. 2012) (categorizing the consideration of an impermissible fac-
tor during sentencing as a substantive error); United States v. Perez,
396 F. Appāx 590, 592 (11th Cir. 2010) (same); United States v. Vidal,
275 F. Appāx 873, 877 (11th Cir. 2008) (same). Ordinarily, that
wouldnāt bother me so muchāunpublished decisions arenāt prece-
dential, so their mistakes donāt infect our jurisprudence more gen-
erally. For good or ill, though, the fact is that we decide the vast
majority of sentencing appeals in unpublished opinions. Accord-
ingly, thereās a serious risk that unless we straighten out our
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6 Newsom, J., Concurring 22-10509
published precedent, the inconsistencies will continue to persistā
underground, as it were, and by dint of raw inertia.
When faced with the sort of intra-circuit split that our im-
proper-factor opinions reveal, our āprecedent about precedentā
privileges the ļ¬rst-decided case. United States v. Madden, 733 F.3d
1314, 1319 (11th Cir. 2013). Here, that means Pugh, as supple-
mented by our ensuing en banc decision in Ireyāboth of which
clearly held that a courtās consideration of an impermissible factor
renders a defendantās sentence substantively unreasonable. So de-
spite our ļ¬ip-ļ¬opping, the law of this circuit is clear.
As I see it, though, itās also clearly wrong. Hereās why: Pugh,
again, is the fountainhead case. Quoting and citing a handful of
pre-Gall decisions from other circuits, the Pugh panel noted in dicta
that āā[a] sentence may be substantively unreasonable when,āā
among other reasons, the district court ābases the sentence on im-
permissible factors.ā 515 F.3d at 1191ā92 (quoting Ward, 506 F.3d
at 478, and citing United States v. Ausburn,502 F.3d 313, 328
(3d Cir.
2007), United States v. Willingham, 497 F.3d 541, 543ā44 (5th Cir.
2007), and United States v. Boleware, 498 F.3d 859, 861 (8th Cir.
2007)). The panel never oļ¬ered any of its own reasons why consid-
eration of an impermissible factor should be viewed as bearing on
a sentenceās substantive (as opposed to procedural) reasonableness.
Rather, it just repeated what others had said in the days leading up
to Gall.
Pugh (and its progeny) erred in categorizing a district courtās
consideration of an impermissible factor as a substantive error. I
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22-10509 Newsom, J., Concurring 7
say so for several reasons. For starters, the Supreme Court in Gall
introduced its list of illustrative āprocedural error[s]ā with the
phrase āsuch as,ā thereby indicating that it wasnāt meant to be ex-
haustive. 552 U.S. at 51. Relatedly, the consideration of an imper-
missible factor at sentencing is just the mirror image of one of the
āprocedural error[s]ā that the Gall Court speciļ¬cally identiļ¬ed:
āfailing to consider the [proper] factorsā as set out in 18 U.S.C.
Ā§ 3553(a).Id.
I donāt see any meaningful diļ¬erenceāin terms of
distinguishing substantive from procedural errorābetween failing
to consider the proper factors and considering an improper factor.
Accordingly, it seems to me that we had it exactly right when we
saidāonly to sub silentio reverse ourselves laterāthat if, by dint of
Gall, a sentencing courtās failure to consider the proper factors con-
stitutes a procedural error, āit is only logicalā that a courtās consid-
eration of an improper factor likewise constitutes procedural, ra-
ther than substantive, error. Vandergrift, 754 F.3d at 1308.
Finally, it just makes sense that a district courtās considera-
tion of an improper factor would be a procedural, rather than sub-
stantive, error. At the risk of oversimplifying, 1 in legal lingoāas in
language more generallyāthe term āprocedureā refers to ā[a] spe-
ciļ¬c method or course of action,ā Procedure, Blackās Law Dictionary
(10th ed. 2014), and a āproceduralā legal rule is distinguished from
a āsubstantiveā rule this way: āThe rules that prescribe the steps
for having a right or duty judicially enforced, as opposed to the law
that deļ¬nes the speciļ¬c rights or duties themselves,ā Procedural
1 Cf. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny.
USCA11 Case: 22-10509 Document: 97-1 Date Filed: 08/28/2023 Page: 31 of 48
8 Newsom, J., Concurring 22-10509
Law, id.; see also e.g., Substantive Law, id. (āSo far as the administra-
tion of justice is concerned with the application of remedies to vi-
olated rights, we may say that the substantive law deļ¬nes the rem-
edy and the right, while the law of procedure deļ¬nes the modes
and conditions of the application of the one to the other.ā (quoting
John Salmond, Jurisprudence 476 (10th ed. 1947, Glanville L. Wil-
liams ed.))). In short, the procedural aspects of a sentencing deter-
mination refer to the various decisional inputsāthe āmethods,ā
āsteps,ā etc.āand the substantive aspect of the determination re-
ļ¬ects the outputāi.e., the product of those inputs. Maybe Iām too
simple, but it just seems pretty straightforward to me.
And to be clear, our miscategorization of impermissible-fac-
tor challenges is indicative of a larger problem: We have likewise
erroneously classiļ¬ed as substantive other errors that, in fact, are
procedural in nature. For instance, we have held that a district
courtās āfail[ure] to aļ¬ord consideration to relevant factors that
were due signiļ¬cant weightā can render a sentence substantively
unreasonable. E.g., Irey, 612 F.3d at 1189. So too, we have sug-
gested, at least, that a courtās placement of āundue weightā on a
single Ā§ 3553(a) factor constitutes a substantive, rather than proce-
dural, error. See, e.g., Oudomsine, 57 F.4th at1267. Both of those,
thoughālike the miscalculation of the Guidelines range and the
consideration of an improper factorāimplicate the propriety of
the āmethodsā and āstepsā by which the court determines a defend-
antās sentence, not the reasonableness of the sentence itself. They
are input errors, not output errors. Thus, they areāto my way of
thinking, at leastāprocedural, not substantive.
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22-10509 Newsom, J., Concurring 9
* * *
At this point, one might ask, āSo what?ā Fair question, but
as it turns out, the categorization of an error as substantive or pro-
cedural actually matters. It may well aļ¬ect the rules governing the
preservation of appellate challengesāalthough, for reasons Iāll ex-
plain in the next section, our preservation precedent is so jacked up
that itās hard to tell. But in additionāas a āfor instance,ā but one
that seems to bear directly on this caseāthe classiļ¬cation decision
aļ¬ects how we review for harmlessness. Although we nominally
review both substantive and procedural sentencing errors for
harmlessness, see United States v. Williams, 456 F.3d 1353, 1362 (11th
Cir. 2006), abrogated on other grounds, Kimbrough v. United States, 552
U.S. 85(2007) (substantive); United States v. Rodriguez,398 F.3d 1291, 1300
(11th Cir. 2005) (procedural), the rules and standards that we
apply in doing so are materially diļ¬erent.
An alleged substantive errorālike (under our precedent) a
sentencing courtās consideration of an impermissible factorāis
deemed to be harmless whenever āthe record as a whole shows the
error did not substantially aļ¬ect the district courtās selection of the
sentence imposed.ā Williams, 456 F.3d at 1362 (11th Cir. 2006). And
importantly, the defendant bears the burden of proving that the er-
ror was not harmlessāi.e., that it did, in fact, āsubstantially aļ¬ectā
his sentence. So if the defendant canāt aļ¬rmatively show that the
error didnāt come out in the wash of the ātotality of the circum-
stancesā test that governs substantive-reasonableness challenges,
he wonāt be entitled to a remand. In short, heāll lose.
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10 Newsom, J., Concurring 22-10509
For an alleged procedural error, by contrast, the roles, bur-
dens, and standards are reversed. The government bears the bur-
den of proving harmlessness, and the āstandard is diļ¬cult to sat-
isfy.ā United States v. Mejia-Giovani, 416 F.3d 1323, 1327 (11th Cir.
2005). The government canāt prevail by pointing to uncertainty or
ambiguity about the errorās eļ¬ect on the defendantās sentence; ra-
ther, it must aļ¬rmatively show āthat the error did not aļ¬ect the
sentence, or had but very slight eļ¬ect.ā United States v. Campa, 529
F.3d 980, 1013 (11th Cir. 2008) (remanding for resentencing because
we were uncertain whether the sentence would have been the same
absent the error) (internal quotations omitted). Indeed, the gov-
ernmentās burden to prove a procedural errorās harmlessness is so
high that weāve said itās āas diļ¬cult for the government to meet . . .
as it is for a defendant to meet the third-prong prejudice standard
for plain error review.ā Id. (internal quotations omitted).
Put simply: With respect to substantive errors, the tie goes
to the government; for procedural errors, it goes to the defendant.
So in a potentially large number of mushy-middle cases, where
weāre just unsure about an errorās precise eļ¬ect, our categorization
of it as substantive or procedural could be outcome-determinative.
And we need look no further than this case for a demonstrative:
Pursuant to our impermissible-factor precedent, we categorized
Curtinās challenge to the district judgeās invocation of his own reli-
gious experience as an allegation of substantive error. See Maj. Op.
at 21. Then, having done so, and pursuant to our applicable harm-
less-error precedent, we concluded that, in the totality of the cir-
cumstances, the judgeās statement didnāt matter; it was outweighed
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22-10509 Newsom, J., Concurring 11
by his reliance on valid considerations. See id. at 22ā23. Had Cur-
tinās impermissible-factor challenge been classiļ¬ed instead as an al-
legation of procedural errorāas I think it should have been,
franklyāthe burden would have shifted, and itās at least possible
that the result would have ļ¬ipped.
To sum up, then: Weāve been inconsistent in how weāve cat-
egorized impermissible-factor (and other similar) challenges, and,
to the extent we seem to have settled on a characterization of such
challenges as substantive rather than procedural, I think weāve got-
ten it wrong.
B
Unfortunately, thereās more confusion where that came
fromāin particular, in the rules that weāve employed to determine
whether a defendant has properly preserved his sentencing chal-
lenges.
Recall that Curtinās attorney initially lodged only a general,
non-specific objection to his sentence: ā[W]e object to the reason-
ableness of this sentence under 18 U.S.C. 3551 and 3553.ā As the
majority opinion notes, he later amended his objection to chal-
lenge more specifically the judgeās upward variance on the ground
that it reflected a failure to account for Curtinās mental-health is-
sues. See Maj. Op. at 20. Conspicuously, though, he made no spe-
cific mention of the particular issues that he now raises on appeal:
the miscalculation of Curtinās Guidelines range and the judgeās
consideration of an improper sentencing factor. Although the par-
ties havenāt focused on the preservation issue before us, Iām not at
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12 Newsom, J., Concurring 22-10509
all sure that either of Curtinās challenges was properly preserved
for appellate review by way of his lawyerās blanket āreasonable-
nessā objection.
Turns out our caselaw is just as unsure. Worse, our caselaw
is a grab-bagāthereās a little something in it for everyone. Based
on existing precedent, a party can argueāand a panel might well
concludeāpretty much whatever it wants concerning whether a
sentencing-related challenge was properly preserved for appellate
review. Hereās a sampling.
With respect to errors that we have characterized (rightly or
wrongly) as bearing on a sentenceās substantive reasonableness, we
have recognized that a general, blanket objection suļ¬ces to pre-
serve the error for appeal. See, e.g., United States v. Carpenter, 803
F.3d 1224, 1232 (11th Cir. 2015) (indicating that a defendantās boil-
erplate objection to the āsubstantive and procedural reasonable-
ness of [his] sentenceā adequately preserved a substantive-reasona-
bleness challenge and accordingly reviewing under the ordinary
abuse-of-discretion standard). And yet we have also held, to the
contrary, that a speciļ¬c objection is required to preserve a substan-
tive-reasonableness challenge. See, e.g., United States v. Cavallo, 790
F.3d 1202, 1237 (11th Cir. 2015) (reviewing a substantive-reasona-
bleness challenge for plain error after concluding that the defend-
antās general objection failed to preserve the error).
And sentencing-related errors that weāve deemed proce-
dural? More of the sameāwhich is to say more inconsistency. Un-
surprisingly to me, we have plenty of decisions holding that a
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22-10509 Newsom, J., Concurring 13
boilerplate objection isnāt good enough. See, e.g., United States v.
Parks, 823 F.3d 990, 996 (11th Cir. 2016) (applying a plain-error
standard to a blanket objection to procedural unreasonableness);
United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012) (sug-
gesting that plain-error review applies when a defendant makes
only a blanket objection that his sentence is āprocedurally unrea-
sonableā). Somewhat more surprisingly, we also have cases hold-
ing, to the contrary, that a blanket objection will preserve a proce-
dural-error challenge. See, e.g., Carpenter, 803 F.3d at 1232, 1238 (ob-
serving that the defendant āpreserved before the district courtā a
procedural-error argument simply by objecting āto the substantive
and procedural reasonableness of [his] sentenceā); see also, e.g.,
Coglianese, 34 F.4th at 1007 (suggesting the same).
And if our published caselaw is bad, then our unpublished
caselawāwhere, again, most sentencing appeals are handledāis
even worse. Compare, e.g., United States v. Rivera, 812 F. Appāx 962,
963 n.1 (11th Cir. 2020) (holding that a blanket objection to a sen-
tenceās substantive unreasonableness does not suffice to preserve
the argument for appeal), and United States v. Jones, 752 F. Appāx
858, 859 n.1 (11th Cir. 2018) (holding that a āgeneral objection to
the reasonableness of [the defendantās] sentenceā does not preserve
a procedural-error argument for appeal and reviewing for plain er-
ror), with, e.g., United States v. Caulton, No. 21-11035, 2021 WL
4787151, at *2 (11th Cir. Oct. 14, 2021) (holding that a blanket ob-
jection to a sentenceās substantive unreasonableness suffices to pre-
serve the challenge for appeal), and United States v. Beasley, 562 F.
Appāx 745, 753 (11th Cir. 2014) (suggesting that a blanket objection
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14 Newsom, J., Concurring 22-10509
to an alleged procedural error suffices to preserve the challenge for
appeal).
All of this inconsistency mattersānot only to our law, but
to real people. Divergent preservation rules beget divergent stand-
ards of review, which in turn may well beget divergent results in
similar cases. Defendants whose sentencing-related challenges are
deemed to have been properly preserved get ordinary abuse-of-dis-
cretion review. Thatās a deferential standard, to be sure, but itās not
toothless; it is well established, for instance, that ā[a] district court
by deļ¬nition abuses its discretion when it makes an error of law.ā
Koon v. United States, 518 U.S. 81, 100 (1996). But those whose chal-
lenges are deemed not to have been preserved confront the plain-
error standard, which requires proof not only that āan error oc-
curredā but also that it āwas plain,ā that it āaļ¬ected [the defend-
antās] substantial rights,ā and that āit seriously aļ¬ected the fairness
of the judicial proceedings.ā United States v. Ramirez-Flores, 743 F.3d
816, 822 (11th Cir. 2014). By any measure, thatās a higher bar.
* * *
Along at least two vectors, thenāhow weāve classiļ¬ed sen-
tencing-related challenges as substantive or procedural and what
weāve required to preserve such challenges for appealāour prece-
dent is confused and internally inconsistent. So much so, I fear,
that any panel could theoretically categorize any error however it
chooses, analyze preservation in whatever way it thinks makes
sense, and (thereby) apply any of multiple standards of reviewāall
with the full backing of what purports to be binding circuit
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22-10509 Newsom, J., Concurring 15
precedent. But if āprecedentā has an essence, surely itās that ā[l]ike
cases should be decided alike.ā Brian Garner et al., The Law of Ju-
dicial Precedent 21 (2016). Given the sorry state of our sentencing
caselaw, I think thereās a substantial risk that like cases are not being
decided alike. To the contrary, and speaking only for (and of ) my-
self, I fear that familiarityāso many sentencing appeals, and so
many of them decided in unpublished decisionsāhas bred inatten-
tion, and perhaps even apathy.
I think itās time to convene the full Court to set our law
straight. In the meantime, I have a few tentative thoughts about
how we might improve our approach to these important issues. I
turn to those now.
II
If we want to begin to rationalize our sentencing precedent,
we need to return to the Supreme Courtās post-Booker sentencing
decisionsāespecially Gall and its progeny. They tell us a lot about
both (1) the process for categorizing and evaluating sentencing-re-
lated challenges and, by extension, (2) the rules that should govern
the preservation of those challenges. Ultimately, I think the Su-
preme Courtās decisions demonstrate, ļ¬rst, that policing the line
between procedural and substantive errors serves important pur-
poses, and second, that the traditional preservation rules apply ir-
respective of an errorās categorization.
A
First, what does Supreme Court precedent say about how
appellate courts should classify and examine sentencing-related
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16 Newsom, J., Concurring 22-10509
challenges? As Iāve already noted, Gall eļ¬ectively invented the mod-
ern taxonomy of āsubstantiveā and āproceduralā sentencing issues.
Hereās the key passage, part of which weāve already reviewed:
Regardless of whether the sentence imposed is inside
or outside the Guidelines range, the appellate court
must review the sentence under an abuse-of-discre-
tion standard. It must ļ¬rst ensure that the district
court committed no signiļ¬cant procedural error,
such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as man-
datory, failing to consider the Ā§ 3553(a) factors, select-
ing a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentenceāin-
cluding an explanation for any deviation from the
Guidelines range. Assuming that the district courtās
sentencing decision is procedurally sound, the appel-
late court should then consider the substantive rea-
sonableness of the sentence imposed under an abuse-
of-discretion standard. When conducting this review,
the court will, of course, take into account the total-
ity of the circumstances, including the extent of any
variance from the Guidelines range. If the sentence
is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of
reasonableness. But if the sentence is outside the
Guidelines range, the court may not apply a presump-
tion of unreasonableness. It may consider the extent
of the deviation, but must give due deference to the
district courtās decision that the Ā§ 3553(a) factors, on
a whole, justify the extent of the variance. The fact
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22-10509 Newsom, J., Concurring 17
that the appellate court might reasonably have con-
cluded that a diļ¬erent sentence was appropriate is in-
suļ¬cient to justify reversal of the district court.
552 U.S. at 51.
That paragraph tells us three very important things. First,
despite what a long line of our own cases would suggest, āproce-
dural reasonablenessā isnāt the ļ¬rst step in the Gall analysisāand,
for that matter, isnāt a thing at all. See, e.g., United States v. Sanchez,
586 F.3d 918, 935 (11th Cir. 2009) (internal quotations omitted)
(quoting United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006) (ā[A] sentence may be reviewed for procedural or substan-
tive unreasonableness.ā)); Dougherty, 754 at 1358 (āprocedural rea-
sonablenessā); United States v. Waters, 937 F.3d 1344, 1358 (11th Cir.
2019) (āprocedural reasonablenessā); Oudomsine, 57 F.4th at 1264
(āprocedural reasonablenessā). To the contrary, a careful reading
of Gall makes clear that the Supreme Court there identiļ¬ed two
types of challenges: (1) those alleging a āprocedural errorā; and (2)
those challenging the sentenceās āsubstantive reasonableness.ā 552
U.S. at 51 (emphasis added). Our āprocedural reasonablenessā
cases blur that line and, in so doing, erroneously imply that proce-
dure-related sentencing inquiries are more amorphous than they
are. Under Gall, procedural error is a binary: it either occurred or
it didnāt.
Second, both in Gall and since, the Supreme Court has pre-
scribed a distinct order of battle: An appellate court should āļ¬rstā
assure itself that the district court committed no procedural error,
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18 Newsom, J., Concurring 22-10509
and āthenā review the sentence itself for substantive reasonable-
ness. Gall, 552 U.S. at 51. As the Court recently reiterated, ā[i]f the
trial court follows proper procedures and gives adequate consider-
ation to these and the other listed factors, then the question for an
appellate court is simply, as here, whether the trial courtās chosen
sentence was āreasonableā or whether the judge instead āabused his
discretion in determining that the Ā§ 3553(a) factors supportedā the
sentence imposed.ā Holguin-Hernandez, 140 S. Ct. 762, 766 (2020)
(quoting Gall, 552 U.S. at 56); accord, e.g., Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1904 (2018); Molina-Martinez v. United States,
136 S. Ct. 1338, 1345 (2016).
Third, the Supreme Courtās decisions make clear that a re-
viewing court can apply a āpresumption of reasonablenessā only at
Step 2, when reviewing the sentence for substantive reasonable-
nessānot at Step 1, when reviewing for procedural error. In Gallās
predecessor, Rita v. United States, the Supreme Court had held that
appellate courts may apply a presumption of reasonableness to sen-
tences that fall within the Guidelines. 551 U.S. 338, 347 (2007). The
Guidelines, the Court said, āseek to embody the Ā§ 3553(a) consid-
erations,ā so itās fair to presume that a within-Guidelines sentence
reļ¬ects a reasonable application of Ā§ 3553(a) in a particular case. Id.
at 350. Building on Rita, Gall then prescribed its two-step decisional
calculus and reiterated that the presumption of reasonableness ap-
plies only at the second step, after the reviewing court has satisļ¬ed
itself āthat the district courtās sentencing decision is procedurally
sound.ā 552 U.S. at 51. All of this, as the Supreme Court explained
in Rosales-Mireles, āmakes eminent sense.ā 138 S. Ct. at 1910. The
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22-10509 Newsom, J., Concurring 19
district court, it said there, is ultimately charged āwith determining
whether, taking all sentencing factors into consideration, including
the correct Guidelines range, a sentence is suļ¬cient, but not
greater than necessary.ā Id. (internal quotations omitted). But if
āthe district court is unable properly to undertake that inquiry be-
cause of ā a procedural errorāincluding, in that case, āan error in
the Guidelines rangeāāthen the resulting sentence āno longer
bears the reliability that would support a presumption of reasona-
bleness on review.ā Id. (internal quotations omitted). 2
Once one appreciates that reviews for procedural error and
substantive reasonableness are āentirely separate inquir[ies],ā id.,
and, importantly, that the former must precede the latter, itās easy
to see how our miscategorization of procedural errors as substan-
tiveāmost notably, but not exclusively, a district courtās considera-
tion of an improper sentencing factorāundermines Gallās ordering
principle and skews the decisional calculus. Instead of applying
reasonableness review only after weāve ensured that the district
courtās decisionmaking process was procedurally sound by
2 The Supreme Courtās foundational sentencing precedent also helps to ex-
plain the divergent harmlessness standards that apply to substantive and pro-
cedural errors. When a defendant alleges a procedural error at Step 1, so to
speak, and an appellate court canāt tell whether it aļ¬ected the district courtās
decision, the sentence isnāt āreliab[le],ā and remand is required. Rosales-Mire-
les, 138 S. Ct. at 1910. Things are diļ¬erent at Step 2. So long as the district
court committed no procedural error and the totality of the circumstances
reveals that an alleged substantive error didnāt āsubstantially aļ¬ectā the result-
ing sentence, weāre safe to aļ¬rm. See Williams, 456 F.3d at 1362.
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20 Newsom, J., Concurring 22-10509
reference to all procedural prerequisites, we have demoted and de-
valued some of those prerequisites by merging them into (and re-
ally submerging them in) the secondary, substantive prong of the
analysis.
B
Next: What do the Supreme Courtās sentencing decisions
tell us about error preservation? Two things, I think. First, and
perhaps most fundamentally, an objection on āreasonablenessā
grounds does nothingābecause itās a non sequitur. āReasonable-
ness,ā the Court recently reiterated, is neither a trial-court objec-
tion nor āthe substantive standard that trial courts apply under
Ā§ 3553(a).ā Holguin-Hernandez, 140 S. Ct. at 763. Rather, itās an ap-
pellate standard of review: It is simply āthe label we have given to
the familiar abuse-of-discretion standard that applies to appellate
review of the trial courtās sentencing decision.ā Id. at 766 (internal
quotations and emphasis omitted).; see also Pugh, 515 F.3d at 1188
(ā[T]he Court āexpressly equatedā reasonableness review āwith the
old abuse-of-discretion standard used to review sentencing depar-
tures.āā). So, to object, as Curtinās trial counsel did here, to the
āreasonablenessā of the district courtās sentencing decision is an
empty gestureāitās the equivalent of saying to the district judge,
āI object because you abused your discretion.ā Neither puts the
district court on notice that it has committed any particular errorā
just that it was wrong in some vague, unspeciļ¬ed way.
Which leads to the second preservation-related lesson that I
think we can draw from the Supreme Courtās sentencing
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22-10509 Newsom, J., Concurring 21
decisionsānamely, that at least as matters currently stand, they
donāt do anything to alter the usual preservation rules. The Court
was recently āask[ed] to decideā both āwhat is suļ¬cient to preserve
a claim that a trial court used improper procedures in arriving at its
chosen sentenceā and āwhen a party has properly preserved the
right to make particular arguments supporting its claim that a sen-
tence is unreasonably long.ā Holguin-Hernandez, 140 S. Ct. at 767
(emphasis omitted). The most it was willing to venture was that
the defendant there āproperly preserved the claim that his 12-
month sentence was unreasonably long by advocating for a shorter
sentence and thereby arguing, in effect, that this shorter sentence
would have proved āsufficient,ā while a sentence of 12 months or
longer would be āgreater than necessaryā to ācomply withā the stat-
utory purposes of punishmentā within the meaning of Ā§ 3553(a).
Id.
I think the only fair reading is that the Supreme Court has,
at least to this point, left the ordinary preservation rules intact: A
criminal defendant who wishes to preserve a claim of error for ap-
pellate review must object to the district courtās ruling and state
āthe grounds for that objection.ā Fed. R. Crim. P. 51(b). A chal-
lenge is properly preserved only if it āarticulate[s] the speciļ¬c na-
ture of [the defendantās] objection . . . so that the district court may
reasonably have an opportunity to consider it.ā United States v.
Zinn, 321 F.3d 1084, 1090 n.7 (11th Cir. 2003). āA sweeping, general
objection is therefore insuļ¬cient.ā Coglianese, 34 F.4th at 1009ā10.
Nothing in the Supreme Courtās sentencing decisionsāHolguin-
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22 Newsom, J., Concurring 22-10509
Hernandez or otherwiseāsuggests that those rules are inapplicable
to sentencing challenges.
Accordingly, to preserve for appeal the argument that the
district court committed a quintessential āprocedural errorāāsay,
a miscalculation of the Guidelines rangeāa defendant must lodge
an objection, in reasonably clear terms, either in a pre-hearing sen-
tencing memorandum or contemporaneously at the hearing itself.
See, e.g., Irey, 612 F.3d at 1223 n.44 (holding that arguments made in
sentencing memoranda or raised during the sentencing hearings
are preserved). The same rule should apply, I contend, to an argu-
ment that the sentencing judge considered an improper factorā
anything less than a speciļ¬c objection would fail to alert the district
court to the alleged error. So too for all other input-based, proce-
dural errors: Speciļ¬c error, speciļ¬c objection.
And what if the defendantās challenge is what Iād call a ātrueā
output-related substantive-reasonableness challengeāfor instance,
that the district courtās chosen sentence is just (my paraphrase)
ātoo longā? There, I thinkāand as Holguin-Hernandez seems to
conļ¬rmāall the defendant needs to say is, in eļ¬ect, āMy sentence
is too long.ā See 140 S. Ct. at 766. To be clear, though, the tolerance
for greater generality doesnāt stem from the fact that the defend-
antās challenge there is properly, formally categorized as substan-
tive rather than procedural. Instead, it results from a straightfor-
ward application of the usual preservation rules: Given the nature
of that particular defendantās allegation, thatās all he needs to say
in order to state āthe grounds for [his] objection,ā Fed. R. Crim. P.
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22-10509 Newsom, J., Concurring 23
51(b), and thereby give the district court a fair āopportunity to con-
sider it,ā Zinn, 321 F.3d at 1090 n.7. A diļ¬erent stripe of substantive-
reasonableness challenge would likely require a diļ¬erent objection.
A defendant taking aim, for instance, at a district courtās imposition
of a particular condition of supervised release would presumably
need to train his ļ¬re speciļ¬cally on that condition. See, e.g., id. at
1087, 1089ā91 (holding that āif a defendant fails to clearly articulate
a speciļ¬c objection [to the special conditions of supervised release]
during sentencing, the objection is waived on appeal and we con-
ļ¬ne our review to plain errorā).
Applying the usual preservation rules to all sentencing chal-
lengesāof whatever stripeādovetails with the practical consider-
ations that the Supreme Court has emphasized in its sentencing de-
cisions. For one, it has stressed that district courts āhave an institu-
tional advantage over appellate courts in making [sentencing] de-
terminations.ā Gall, 552 U.S. at 52. āThe sentencing judge is in a
superior position to ļ¬nd facts and judge their import under
Ā§ 3553(a) in the individual case. The judge sees and hears the evi-
dence, makes credibility determinations, has full knowledge of the
facts and gains insights not conveyed by the record.ā Id. at 51 (in-
ternal quotations omitted). Given those indisputable realities, it
makes perfect sense that we would require a defendant to make his
case clearly in the district court so that the judge has the ļ¬rst crack
at correcting his own mistakes before an appellate court steps in.
For another, application of the usual rules furthers the goal
of ensuring consistency and uniformity between and among
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24 Newsom, J., Concurring 22-10509
individual defendants where it matters most: criminal adjudication
and punishment. See, e.g., United States v. Booker, 543 U.S. 220, 264
(2005) (āCongress sought to āprovide certainty and fairness in meet-
ing the purposes of sentencing, [while] avoiding unwarranted sen-
tencing disparities . . . [and] maintaining sufficient flexibility to per-
mit individualized sentences when warranted.āā (alterations in
original) (quoting 28 U.S.C. Ā§ 991(b)(1)(B))). Consistency in sen-
tencing is a worthy aimāone that, it seems to me, is achieved not
only through the consistent application of the Sentencing Guide-
lines, see id. at 253ā54, but also through the uniform application of
the rules that govern appellate review.
* * *
Clearly, I got more than I bargained for in this caseāand, by
extension, so did you. What I found, thoughāand what I hope Iāve
demonstratedāis that our sentencing precedent is a crazy quilt.
First, weāve been freakishly inconsistent in our characterization of
sentencing challenges as āsubstantive,ā āprocedural,ā or (tellingly)
both. And in important respects, even where we have settled into
something that might be called a pattern, weāve chosen poorly. No-
where is that more true, in my view, than in our classiļ¬cation as
substantive of what is to me the self-evidently procedural challenge
to a district courtās consideration of an improper sentencing factor.
Second, weāve been just as erratic in our pronouncements about
what suļ¬ces to preserve sentencing-related challenges: One day, a
boilerplate objection will suļ¬ce, the next day it wonāt.
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22-10509 Newsom, J., Concurring 25
Enough is enough. We should convene the full Court to re-
store some order. And when we do, we should take our cue from
the Supreme Courtās own sentencing decisions. To start, we
should hold that all (as Iāve called them) āinputā-related challenges
are allegations of āprocedural errorā and should be assessed at the
outset, before turning to evaluate, as a matter of āsubstantive rea-
sonableness,ā the district courtās āoutputāāi.e., the sentence itself.
And when determining whether a defendant has properly pre-
served his sentencing-related challengeāwhether substantive or
proceduralāwe should apply the usual rules and ask whether he
speciļ¬cally stated the grounds of his particular objection, in a man-
ner that clearly put the district court on notice of its alleged error.