USA v. Lawrence F. Curtin

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10509
____________________
UNITED STATES OF AMERICA,
Plaintiff-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 L UCK , Circuit Judges.
NEWSOM , Circuit Judge:
Lawrence Curtin—who has long struggled with serious
mental-health issues—has 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. § 876(c), and (2) threatening a
federal official, in violation of 18 U.S.C. § 115(a)(1)(B). For his
crimes, he was sentenced to 60 months in prison. Curtin now chal-
lenges his convictions and sentence on five grounds. After careful
consideration, we affirm.
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
judges—including the one underlying the convictions at issue here.
Here are the details: Curtin initially filed 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
Qualification 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
threat—it invoked the “Biblical law which states an ‘eye for an eye’”
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22-10509 Opinion of the Court 3
and expressed Curtin’s view that he had an “obligation . . . to stop
Croom.” The charges were ultimately dismissed, however, when a
Florida court found Curtin incompetent to stand trial.
Continuing his litigation flurry, Curtin filed yet another fed-
eral suit challenging the state-court decisions—this time adding the
“Florida State Court System” 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 Maynard’s report and recommendation forms the basis of
this case. Judge Maynard interpreted Curtin’s objection as contain-
ing a threat to her and her family. Here’s 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-
ification 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 effort 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 “Road to Glory” in a church, approaching the pulpit,
and taking a black preacher’s hand. Judge Maynard is black, and
her father was a pastor who had been working in the Fort Pierce
community—where both Curtin and Judge Maynard lived—for
about 20 years.
A jury convicted Curtin of mailing a threatening communi-
cation, in violation of 18 U.S.C. § 876(c), and of threatening a fed-
eral official, in violation of 18 U.S.C. § 115(a)(1)(B). He now ap-
peals, raising several challenges to his convictions and sentences.
We will take up Curtin’s contentions in turn, and we will provide
additional factual and procedural detail as necessary.
II
Curtin first contends that there was insufficient evidence to
convict him. We review sufficiency-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, 739–40 (11th Cir. 1989),
making “[a]ll factual and credibility inferences” in the govern-
ment’s favor, United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir.
2000). “In order to find the evidence sufficient, we need not ex-
clude every reasonable hypothesis of innocence or find the evi-
dence wholly inconsistent with every conclusion except that of
guilt, provided that a reasonable factfinder could find that the evi-
dence establishes guilt beyond a reasonable doubt.” Kelly, 888 F.2d
at 740. We consider Curtin’s challenges to each of his convictions
separately.
A
To obtain a conviction under 18 U.S.C. § 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 “true threat,” and (3) intended (or at least knew)
that the statement would be viewed as a threat.2 18 U.S.C. § 876(c);
2 Pointing to Elonis v. United States, 575 U.S. 723 (2015), the government sug-
gests that § 876(c)’s 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 government’s “conce[ssion] that § 876(c) is a specific-intent
crime, requiring proof that [the defendant] sent his letter ‘for the purpose of
issuing a threat, or with knowledge that the communication [would] be
viewed as a threat’”). That may be right. We note, though, that Elonis dealt
with a statute, 18 U.S.C. § 875(c), that contained no explicit mens rea element.
See 18 U.S.C. § 875(c) (“Whoever transmits in interstate or foreign commerce
any communication containing any threat . . . .”). Section 876(c), by contrast,
begins with the phrase, “Whoever knowingly . . . .” As the Supreme Court
has observed, “courts ordinarily read a phrase in a criminal statute that intro-
duces the elements of a crime with the word ‘knowingly’ 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
§ 876(c)’s elements). Curtin concedes that he knowingly mailed the
objection to Judge Maynard’s 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
Curtin’s mental state, of course, is provable through circum-
stantial evidence. See Liparota v. United States, 471 U.S. 419, 434
word to each element.” Flores-Figueroa v. United States, 556 U.S. 646, 652
(2009); see also United States v. Bachmeier, 8 F.4th 1059, 1063–64 (9th Cir. 2021)
(“Other provisions in § 876 criminalize actions ‘with intent to extort,’ but sub-
section (c) contains no such language.”); United States v. Chapman, 866 F.3d 129,
134 (3d Cir. 2017) (adopting a knowledge standard for § 876(c) after Elonis, but
without citing it). Ultimately, we needn’t decide the mens rea issue. Whether
§ 876(c) requires purpose or intent, or something less, like knowledge, the ev-
idence here—which we’ll discuss in detail—is sufficient.
3 “‘True threats’ 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.” Virginia v. Black,
538 U.S. 343, 359 (2003). “The speaker need not actually intend to carry out
the threat”; rather, “a prohibition on true threats ‘protect[s] individuals from
the fear of violence’ and ‘from the disruption that fear engenders,’ in addition
to protecting people ‘from the possibility that the threatened violence will oc-
cur.’” Id. at 359–60 (alteration in original) (quoting R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992)).
The Supreme Court’s 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 § 876(c)’s second and third elements, the strongest
items of evidence illustrating Curtin’s state of mind are his own
words. In plain terms, Curtin stated in his objection that he
thought “[i]t [was] obvious from the totality of words in the song
including its title that [he was] threatening Maynard with death and
bodily harm” and, further, that he was “threatening Maynard who
is a woman of color with death.” And as if to underscore his seri-
ousness, Curtin buttressed his words with all caps accusations (e.g.,
“SHE COVERED IT UP”), underlined emphasis (“Maynard is una-
ble to understand this”), and an explicit reference to Judge
Maynard’s race.
Curtin now implies that he was being sarcastic and insists
that, in any event, he didn’t intend the statement as a threat. Per-
haps. All that matters for present purposes, though, is that it
wouldn’t be unreasonable for a factfinder 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 sufficiency-of-the-evidence challenge in similar circumstances—
there, where a defendant called his threat to assassinate the Presi-
dent “political hyperbole.” United States v. Callahan, 702 F.2d 964,
965–66 (11th Cir. 1983) (distinguishing Watts v. United States, 394
U.S. 705, 707–08 (1969)).
For similar reasons, we needn’t get bogged down in the par-
ties’ competing interpretations of the song, “Road to Glory”—
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 Maynard’s family. Given the applicable standard of re-
view, and construing the facts in the government’s favor, we have
no trouble concluding that a reasonable jury could have found that
the video corroborated rather than mitigated Curtin’s plain-lan-
guage threats.
In sum, there was ample evidence to support the jury’s de-
termination that Curtin knowingly sent a true threat and intended
that it would be viewed as such—and thus to convict him under
§ 876(c).
B
For the same reasons, there was sufficient evidence to con-
vict Curtin of threatening a federal judge in violation of 18 U.S.C.
§ 115(a)(1)(B). That statute requires the government to prove be-
yond a reasonable doubt that the defendant (1) “threaten[ed] to as-
sault, kidnap, or murder” a federal judge (2) with “intent to retali-
ate” against her “on account of the performance of official duties.”
Id. As we have explained, a jury could reasonably have concluded
from the text and context of Curtin’s objection that he meant to
threaten Judge Maynard with “death” and “bodily injury”—i.e.,
“murder” and “assault” within the meaning of the statute. And
because he lodged his objection in response to Judge Maynard’s re-
port and recommendation, the jury could also have reasonably
concluded that he threatened her in an effort to “retaliate” against
her “on account of [her] performance of official duties.”
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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. § 4241(d). In relevant part, that pro-
vision states that a district court may commit a defendant to the
“custody of the Attorney General” to be hospitalized for “treat-
ment in a suitable facility” if the “court finds by a preponderance
of the evidence that the defendant is presently suffering from a
mental disease or defect rendering him mentally incompetent.” Id.
Importantly here, the statute goes on to say that the defendant’s
hospitalization is authorized only for “a 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.”
Id. § 4241(d)(1).
Here are the facts relevant to Curtin’s § 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 “danger to the community.” See 18
U.S.C. § 3142. Several months later, on November 24, the district
court ordered Curtin hospitalized pursuant to § 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 “lo-
gistical challenges and a backlog at [its] psychiatric facilities,” Cur-
tin didn’t 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 § 4241(d) by keeping him beyond the four-month mark.
Even so, the court rejected Curtin’s 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 Curtin’s 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, “[a] district court by definition
abuses its discretion when it makes an error of law.” Koon v. United
States, 518 U.S. 81, 100 (1996).
As best we can tell, Curtin makes three § 4241(d)-related ar-
guments. First, and most fundamentally, he contends (as he did
below) that he was hospitalized beyond the statute’s 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
doctors’ report detailing their competency findings should have
been submitted within the four-month period.
We can make quick work of Curtin’s second and third argu-
ments. As for the former, we conclude that Curtin invited—and
thereby waived any claim with respect to—the error that he now
presses. In the district court, Curtin filed a reply expressly
“agree[ing]” that “the four-month period authorized under
§ 4241(d)(1) began on March 22, 2021 and ended on July 22, 2021.”
Doc. 78 at 2. And with respect to the latter, there is simply no firm
footing in § 4241(d)’s text for a requirement that psychiatric find-
ings be released or received within the four-month period. That
provision prescribes a “reasonable period of time, not to exceed
four months,” in which the government may “hospitalize the de-
fendant.” 18 U.S.C. § 4241(d) (emphasis added). To be sure, it goes
on to say that the hospitalization’s purpose is to “determine”
whether the defendant’s 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, 407–08 (2d Cir. 2008) (“No
one’s interests—not the parties’, not the court’s, and not the pub-
lic’s—are well served by encouraging undue haste in § 4241(d)(1)
evaluations.”).
That leaves us with Curtin’s principal objection—that he
was actually, physically hospitalized for longer than the four
months that § 4241(d) permits. The government concedes that it
violated § 4241(d). See Br. of Appellee at 22 (“Again, 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.”). 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, there’s no particular rea-
son to think—at least none has been explained to us—that dismissal
would be the (or even an) appropriate response to a § 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 off-point. To be sure, we
held there that § 4241(d)’s four-month deadline is “mandatory,” 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 § 4241(d) violation. The Supreme Court there sorted statu-
tory deadlines into three categories—jurisdictional limitations,
claims-processing rules, and time-related directives—and then set
out to determine the effect of each with respect to the particular
“action to which the statute attached the deadline.” Id. at 609–10.
We needn’t decide here the precise nature of § 4241(d)’s 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
“the action to which the statute attache[s] the deadline”—namely,
an inmate’s 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 release—which is
exactly what he got.
In sum, Curtin has offered no persuasive justification for dis-
missing his indictment as a means of remedying the admitted vio-
lation of § 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.
Different judges from that district presided over Curtin’s pretrial
proceedings 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. § 3142, and that de-
tention would presumably have continued even if he had never been hospital-
ized pursuant to § 4241(d). Second, Curtin wasn’t detained long enough to
violate the Due Process Clause under Jackson v. Indiana, which held only that
an incompetent defendant can’t constitutionally be confined beyond “the rea-
sonable period of time necessary to determine whether there is a substantial
probability that he will attain that capacity in the foreseeable future.” 406 U.S.
715, 738–39 (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 inmate’s 19-month detention under § 4241(d)
did not violate the Due Process Clause).
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14 Opinion of the Court 22-10509
§ 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 first to seek recusal in the district court—assuming of
course that, as here, he challenges a district court’s failure—we 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 affected his substantial rights, and that
it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Olano v. United States, 507 U.S. 725, 732–36
(1993) (alteration accepted) (quotation omitted).
We needn’t decide whether any of the Southern District’s
judges erred by failing to recuse because we conclude that any er-
ror, if one occurred, wasn’t plain. “It is the law of this circuit that,
at least where the explicit language of a statute or rule does not
specifically 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.” 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 “[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.” 28 U.S.C. § 455(a). We have described § 455(a)’s
standard, in general terms, as asking whether an “objective, disin-
terested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant
doubt about the judge’s impartiality.” United States v. Scrushy, 721
F.3d 1288, 1303 (11th Cir. 2013). At least on its own, that fact- and
context-specific standard doesn’t “specifically resolve” the recusal
issue in Curtin’s favor.
Nor does the most analogous case, In re Moody, 755 F.3d 891
(11th Cir. 2014), “directly resolve” matters. For starters, the Moody
Court itself emphasized—as just explained—that “[r]ecusal deci-
sions under Ԥ 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.’” 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 didn’t have to recuse from proceedings
involving a defendant convicted of a former Eleventh Circuit
judge’s 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 “en-
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 family”; and (4) the
two circuit judges who had taken part in the State of Alabama’s
prosecution had already recused. Id. at 895–96. Nothing in Moody’s
fact-intensive analysis “directly resolve[s]” 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 Curtin’s case.
V
Finally, Curtin contests both the procedural and substantive
reasonableness of his sentence. We consider each challenge in
turn.
A
Curtin first alleges that the district court committed proce-
dural error by miscalculating his Guidelines range. The Supreme
Court has explained that “significant procedural error[s]” include
“failing to calculate (or improperly calculating) the Guidelines
5 Curtin contends that Moody “rejected a more stringent test from other cir-
cuits requiring recusal only when the presiding judge was also a potential vic-
tim.” Br. of Appellant at 43–44. We disagree. To the contrary, the Moody
panel at least implicitly rejected the broad rule that Curtin proposes—namely,
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: “As we read it, Nettles stands for the proposition that
. . . judges [who] were potential victims of the alleged attack” “must recuse.”
Id. (citing In re Nettles, 394 F.3d 1001 (7th Cir. 2005)); see also id. (citing Clemens
v. U.S. Dist. Ct. for Cent. Dist. of Ca., 428 F.3d 1175, 1179–80 (9th Cir. 2005)).
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22-10509 Opinion of the Court 17
range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence—includ-
ing an explanation for any deviation from the Guidelines range.”
Gall v. United States, 552 U.S. 38, 51 (2007). When we review for
procedural error, we consider a “district court’s interpretation of a
sentencing guideline provision or term de novo.” 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. § 2A6.1(b)(6), which decreases the base
offense level if “the offense involved a single instance evidencing
little or no deliberation.” We disagree; we think it clear that Cur-
tin’s threat involved ample “deliberation.” 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 § 2A6.1(b)(6)’s 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 unreasonable—principally, he says, because the judge
considered an improper factor during the hearing.
We review a criminal sentence’s 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, “when it (1)
fails to afford consideration to relevant factors that were due signif-
icant weight, (2) gives significant weight to an improper or irrele-
vant factor, or (3) commits a clear error of judgment in considering
the proper factors.” 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)). “The party challenging
the sentence bears the burden of establishing that the sentence is
unreasonable . . . .” United States v. Early, 686 F.3d 1219, 1221 (11th
Cir. 2012). “[A] major variance does require a more significant jus-
tification than a minor one.” 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 there’s some dis-
pute in the record as to the phrase “road to glory.” I
will say I don’t put any stead in it and don’t base any
sentence on it, but I’m 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 “glory,” the
reference to “glory,” in that milieu means heaven. It
doesn’t 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
“glory,” that means heaven. Sometimes they say, my
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22-10509 Opinion of the Court 19
mother’s passed; she’s in glory. So again, I don’t put
any stead on it. I don’t hinge any sentence on it, but
to the extent that’s a dispute in the record, I have to
tell you what my experience is, and I’m 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 sentence—namely, Curtin’s pattern of threatening behavior
and his focus on Judge Maynard’s race:
And pursuant to Title 18 United States Code 3551 and
3553, it’s 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 we’re 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 Croom’s
armpit, I don’t know why it is that we keep sending
letters to judges. We have an ongoing, disturbing
conversation in writing with Judge Bert Jordan—
Adalberto Jordan. I’m so bad at that. This is a pat-
tern, and the pattern escalated and it escalated, and I
wasn’t really impressed with this tincture, if that’s 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 victim’s point of view, there’s a little bit of history
in Florida, and that little—it wasn’t, 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 hasn’t 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 I’m going to threaten Magistrate Judge
Smith in Orlando with bodily injury and death,
they’re very hurtful. Thank God it hasn’t escalated
further. So it’s 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 government’s requested 33 months, which was al-
ready “at the top of the guidelines” range. Curtin’s attorney gen-
erally objected to the “reasonableness of this sentence under 18
U.S.C. §§ 3551 and 3553” and, more specifically, requested that Cur-
tin be designated to a facility that could care for his serious physical-
health needs and objected to the “upward variance given . . . the
lack of consideration of his mental health issues.” The judge re-
sponded that he would recommend the suggested facility and ex-
plained his decision: “I’m very aware of his health. And frankly, if
it weren’t for that he would have gotten a higher sentence.” Cur-
tin’s lawyer once more objected to a “lack of consideration of his
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22-10509 Opinion of the Court 21
mental health issues.” Again, the judge responded: “Oh, I have
taken that into consideration. I have taken everything. And it is
my conclusion based upon the statutory factors that this sentence
is sufficient but not greater than necessary to respond to those stat-
utory factors in 18 U.S.C. [§] 3553. . . . [T]his is a long, ongoing pat-
tern . . . .”
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 Curtin’s physical-
and mental-health issues, and (3) over-emphasized Curtin’s history
of sending threatening letters to judges.
We can quickly dispense with Curtin’s second and third sub-
stantive-reasonableness challenges. As to the second, the district
judge properly considered Curtin’s physical- and mental-health is-
sues and history. The judge specifically stated that he had ac-
counted for them and, indeed, said that he would have imposed a
higher sentence if it weren’t for them. As to the third, we find that
the judge appropriately considered and weighed Curtin’s repeated
threats to judges. As we will explain, that pattern of threats, when
combined with the evidence of racial animus, amply supports the
judge’s above-Guidelines sentence.
Before we get there, though, we must address Curtin’s first
challenge—his contention that the judge considered an improper
factor when he commented on the religious language and imagery
in the “Road to Glory” song. This, we think, presents a closer
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22 Opinion of the Court 22-10509
question. On the one hand, the § 3553(a) factors clearly don’t in-
clude reliance on one’s own personal religious experience. See 18
U.S.C. § 3553(a). In fact, the Sentencing Guidelines make clear that
consideration of religion generally (without specifying the defend-
ant’s or the judge’s) is an improper factor. See U.S.S.G. § 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
didn’t “put any stead” in it and, separately, that he didn’t “hinge any
sentence on it.” Cf. United States v. Schwarzbaum, 24 F.4th 1355, 1364
(11th Cir. 2022) (stating that we would “take the district court at its
word” when it described its sentence).
We needn’t 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 “initial burden” of establishing that the court considered an
“impermissible factor”), abrogated on other grounds, Kimbrough v.
United States, 552 U.S. 85 (2007). “[A] district court’s consideration
of an impermissible factor at sentencing is harmless if the record
as a whole shows the error did not substantially affect the district
court’s selection of the sentence imposed.” 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) Curtin’s
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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
“blow [U.S. District Court Judge] James Lawrence King’s brains out
of his head” because “King had a secret meeting where he incited
others to do this to me and it is clearly a precept of Emmanuel
Kant’s ‘Let the Punishment fit the crime.’”).6 We think that these
two factors alone pass muster as “significant justification[s]” 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 judge’s reference to his own religious experience was im-
proper, it didn’t “substantially affect [his] selection of [Curtin’s] sen-
tence”—and, therefore, was harmless. Williams, 456 F.3d at 1362.
VI
For the foregoing reasons, we AFFIRM Curtin’s convictions
and sentence.
6 A sentencing judge may impose an upward variance based on uncharged
conduct—here, the pattern of threats—when it relates to the defendant’s his-
tory or characteristics. See United States v. Overstreet, 713 F.3d 627, 637–38 (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 defendant’s argument that the district court considered
an impermissible factor in imposing a sentence as a challenge to
the sentence’s “substantive” reasonableness, rather than an allega-
tion of “procedural” error. See Maj. Op. at 17. That didn’t—and
for reasons I’ll explain, still doesn’t—make 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-
flicted—not only with respect to the categorization of particular
sentencing-related challenges as “substantive” or “procedural,” 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) briefly
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 court’s 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-
fused—and frankly, just sloppy—in at least two respects: (a) how
we’ve gone about categorizing sentencing-related challenges as
substantive or procedural and (b) what we’ve said a defendant
needs to do to preserve those challenges. I’ll try to explain those
bodies of law (such as they are) in turn. Then, having done that,
I’ll offer in the next Part a few ideas for setting things straight.
A
I’ll start with our classification of sentencing challenges as
substantive or procedural—and, 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. § 2A6.1(b)(6). See Maj. Op. at
16–17. That, the Supreme Court has told us, is a quintessential
“procedural” error. Most notably, in Gall v. United States—which
for all intents and purposes minted the “substantive” and “proce-
dural” labels—the Court offered an illustrative (if partial) list of
“procedural error[s],” as follows:
[T]he appellate court . . . must first ensure that the
district court committed no significant 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 § 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 sentence—including 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 “improperly calculate[ed] the Guidelines range” is—objec-
tively, verifiably—an allegation of “procedural error.” Id. Happily,
our precedent has consistently tracked the Supreme Court’s own.
In United States v. Pugh, we accurately recited the Supreme Court’s
catalogue of “procedural error[s]” as including the “fail[ure] to cal-
culate (or improperly calculating) the Guidelines range.” 515 F.3d
1179, 1190 (11th Cir. 2008). So far as I can tell, we’ve since re-
mained faithful to that clear—and correct—holding. See, e.g.,
United States v. Shaw, 560 F.3d 1230, 1237-38 (11th Cir. 2009); United
States v. Dougherty, 754 F.3d 1353, 1358–59 (11th Cir. 2014).
The story with respect to the second error that Curtin al-
leges—that, in imposing his sentence, the district court considered
an impermissible factor, see Maj. Op. at 17–21—is more compli-
cated. With respect to the classification 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 first word about how to characterize an impermissible-factor
challenge like Curtin’s. There, quoting a pre-Gall decision, we said
that “[a] sentence may be substantively unreasonable when the dis-
trict court . . . bases the sentence on impermissible factors.” 515
F.3d at 1191–92 (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 “procedural” 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
court’s 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 held—again, and quoting Irey—that a sentence may be substan-
tively unreasonable when the district court “gives significant weight
to an improper or irrelevant factor.” Id. at 1016 (quoting Irey, 612
F.3d at 1189).
The settlement, though, was short-lived. Here’s 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, 1236–
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.
App’x 609, 617 (11th Cir. 2020) (categorizing the consideration of
an impermissible factor during sentencing as a procedural error);
United States v. Cooper, 779 F. App’x 588, 593 (11th Cir. 2019) (same);
United States v. Fox, 650 F. App’x 734, 738–39 (11th Cir. 2016) (same);
United States v. Salas-Argueta, 249 F. App’x 770, 772 (11th Cir. 2007)
(same), with, e.g., United States v. Scott, 496 F. App’x 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. App’x 590, 592 (11th Cir. 2010) (same); United States v. Vidal,
275 F. App’x 873, 877 (11th Cir. 2008) (same). Ordinarily, that
wouldn’t bother me so much—unpublished decisions aren’t prece-
dential, so their mistakes don’t 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, there’s 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 persist—
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 “precedent about precedent”
privileges the first-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 Irey—both of which
clearly held that a court’s consideration of an impermissible factor
renders a defendant’s sentence substantively unreasonable. So de-
spite our flip-flopping, the law of this circuit is clear.
As I see it, though, it’s also clearly wrong. Here’s 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 “‘[a] sentence may be substantively unreasonable when,’”
among other reasons, the district court “bases the sentence on im-
permissible factors.” 515 F.3d at 1191–92 (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, 543–44 (5th Cir.
2007), and United States v. Boleware, 498 F.3d 859, 861 (8th Cir.
2007)). The panel never offered any of its own reasons why consid-
eration of an impermissible factor should be viewed as bearing on
a sentence’s 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 court’s
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 “procedural error[s]” with the
phrase “such as,” thereby indicating that it wasn’t 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
“procedural error[s]” that the Gall Court specifically identified:
“failing to consider the [proper] factors” as set out in 18 U.S.C.
§ 3553(a). Id. I don’t see any meaningful difference—in terms of
distinguishing substantive from procedural error—between failing
to consider the proper factors and considering an improper factor.
Accordingly, it seems to me that we had it exactly right when we
said—only to sub silentio reverse ourselves later—that if, by dint of
Gall, a sentencing court’s failure to consider the proper factors con-
stitutes a procedural error, “it is only logical” that a court’s 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 court’s considera-
tion of an improper factor would be a procedural, rather than sub-
stantive, error. At the risk of oversimplifying,1 in legal lingo—as in
language more generally—the term “procedure” refers to “[a] spe-
cific method or course of action,” Procedure, Black’s Law Dictionary
(10th ed. 2014), and a “procedural” legal rule is distinguished from
a “substantive” rule this way: “The rules that prescribe the steps
for having a right or duty judicially enforced, as opposed to the law
that defines the specific rights or duties themselves,” Procedural
1 Cf. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny.
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8 Newsom, J., Concurring 22-10509
Law, id.; see also e.g., Substantive Law, id. (“So 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 defines the rem-
edy and the right, while the law of procedure defines the modes
and conditions of the application of the one to the other.” (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 inputs—the “methods,”
“steps,” etc.—and the substantive aspect of the determination re-
flects the output—i.e., the product of those inputs. Maybe I’m 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 classified as substantive other errors that, in fact, are
procedural in nature. For instance, we have held that a district
court’s “fail[ure] to afford consideration to relevant factors that
were due significant weight” can render a sentence substantively
unreasonable. E.g., Irey, 612 F.3d at 1189. So too, we have sug-
gested, at least, that a court’s placement of “undue weight” on a
single § 3553(a) factor constitutes a substantive, rather than proce-
dural, error. See, e.g., Oudomsine, 57 F.4th at1267. Both of those,
though—like the miscalculation of the Guidelines range and the
consideration of an improper factor—implicate the propriety of
the “methods” and “steps” by which the court determines a defend-
ant’s sentence, not the reasonableness of the sentence itself. They
are input errors, not output errors. Thus, they are—to my way of
thinking, at least—procedural, not substantive.
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22-10509 Newsom, J., Concurring 9
* * *
At this point, one might ask, “So what?” Fair question, but
as it turns out, the categorization of an error as substantive or pro-
cedural actually matters. It may well affect the rules governing the
preservation of appellate challenges—although, for reasons I’ll ex-
plain in the next section, our preservation precedent is so jacked up
that it’s hard to tell. But in addition—as a “for instance,” but one
that seems to bear directly on this case—the classification decision
affects 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 different.
An alleged substantive error—like (under our precedent) a
sentencing court’s consideration of an impermissible factor—is
deemed to be harmless whenever “the record as a whole shows the
error did not substantially affect the district court’s selection of the
sentence imposed.” Williams, 456 F.3d at 1362 (11th Cir. 2006). And
importantly, the defendant bears the burden of proving that the er-
ror was not harmless—i.e., that it did, in fact, “substantially affect”
his sentence. So if the defendant can’t affirmatively show that the
error didn’t come out in the wash of the “totality of the circum-
stances” test that governs substantive-reasonableness challenges,
he won’t be entitled to a remand. In short, he’ll 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 “standard is difficult to sat-
isfy.” United States v. Mejia-Giovani, 416 F.3d 1323, 1327 (11th Cir.
2005). The government can’t prevail by pointing to uncertainty or
ambiguity about the error’s effect on the defendant’s sentence; ra-
ther, it must affirmatively show “that the error did not affect the
sentence, or had but very slight effect.” 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-
ernment’s burden to prove a procedural error’s harmlessness is so
high that we’ve said it’s “as difficult for the government to meet . . .
as it is for a defendant to meet the third-prong prejudice standard
for plain error review.” 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
we’re just unsure about an error’s precise effect, 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
Curtin’s challenge to the district judge’s 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 judge’s statement didn’t matter; it was outweighed
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22-10509 Newsom, J., Concurring 11
by his reliance on valid considerations. See id. at 22–23. Had Cur-
tin’s impermissible-factor challenge been classified instead as an al-
legation of procedural error—as I think it should have been,
frankly—the burden would have shifted, and it’s at least possible
that the result would have flipped.
To sum up, then: We’ve been inconsistent in how we’ve 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 we’ve got-
ten it wrong.
B
Unfortunately, there’s more confusion where that came
from—in particular, in the rules that we’ve employed to determine
whether a defendant has properly preserved his sentencing chal-
lenges.
Recall that Curtin’s attorney initially lodged only a general,
non-specific objection to his sentence: “[W]e object to the reason-
ableness of this sentence under 18 U.S.C. 3551 and 3553.” As the
majority opinion notes, he later amended his objection to chal-
lenge more specifically the judge’s upward variance on the ground
that it reflected a failure to account for Curtin’s 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 Curtin’s Guidelines range and the judge’s
consideration of an improper sentencing factor. Although the par-
ties haven’t focused on the preservation issue before us, I’m not at
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12 Newsom, J., Concurring 22-10509
all sure that either of Curtin’s challenges was properly preserved
for appellate review by way of his lawyer’s blanket “reasonable-
ness” objection.
Turns out our caselaw is just as unsure. Worse, our caselaw
is a grab-bag—there’s a little something in it for everyone. Based
on existing precedent, a party can argue—and a panel might well
conclude—pretty much whatever it wants concerning whether a
sentencing-related challenge was properly preserved for appellate
review. Here’s a sampling.
With respect to errors that we have characterized (rightly or
wrongly) as bearing on a sentence’s substantive reasonableness, we
have recognized that a general, blanket objection suffices 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 defendant’s boil-
erplate objection to the “substantive and procedural reasonable-
ness of [his] sentence” 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 specific 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-
ant’s general objection failed to preserve the error).
And sentencing-related errors that we’ve deemed proce-
dural? More of the same—which 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 isn’t 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 “procedurally unrea-
sonable”). 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 “preserved before the district court” a
procedural-error argument simply by objecting “to the substantive
and procedural reasonableness of [his] sentence”); see also, e.g.,
Coglianese, 34 F.4th at 1007 (suggesting the same).
And if our published caselaw is bad, then our unpublished
caselaw—where, again, most sentencing appeals are handled—is
even worse. Compare, e.g., United States v. Rivera, 812 F. App’x 962,
963 n.1 (11th Cir. 2020) (holding that a blanket objection to a sen-
tence’s substantive unreasonableness does not suffice to preserve
the argument for appeal), and United States v. Jones, 752 F. App’x
858, 859 n.1 (11th Cir. 2018) (holding that a “general objection to
the reasonableness of [the defendant’s] sentence” 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 sentence’s substantive unreasonableness suffices to pre-
serve the challenge for appeal), and United States v. Beasley, 562 F.
App’x 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 matters—not 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. That’s a deferential standard, to be sure, but it’s not
toothless; it is well established, for instance, that “[a] district court
by definition abuses its discretion when it makes an error of law.”
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 “an error oc-
curred” but also that it “was plain,” that it “affected [the defend-
ant’s] substantial rights,” and that “it seriously affected the fairness
of the judicial proceedings.” United States v. Ramirez-Flores, 743 F.3d
816, 822 (11th Cir. 2014). By any measure, that’s a higher bar.
* * *
Along at least two vectors, then—how we’ve classified sen-
tencing-related challenges as substantive or procedural and what
we’ve required to preserve such challenges for appeal—our 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 review—all
with the full backing of what purports to be binding circuit
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22-10509 Newsom, J., Concurring 15
precedent. But if “precedent” has an essence, surely it’s that “[l]ike
cases should be decided alike.” Brian Garner et al., The Law of Ju-
dicial Precedent 21 (2016). Given the sorry state of our sentencing
caselaw, I think there’s 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 familiarity—so many sentencing appeals, and so
many of them decided in unpublished decisions—has bred inatten-
tion, and perhaps even apathy.
I think it’s 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 Court’s post-Booker sentencing
decisions—especially 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 Court’s decisions demonstrate, first, 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 error’s 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 I’ve already noted, Gall effectively invented the mod-
ern taxonomy of “substantive” and “procedural” sentencing issues.
Here’s the key passage, part of which we’ve 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 first ensure that the district
court committed no significant procedural error,
such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as man-
datory, failing to consider the § 3553(a) factors, select-
ing a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—in-
cluding an explanation for any deviation from the
Guidelines range. Assuming that the district court’s
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 court’s decision that the § 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 different sentence was appropriate is in-
sufficient 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, “proce-
dural reasonableness” isn’t the first step in the Gall analysis—and,
for that matter, isn’t 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) (“[A] sentence may be reviewed for procedural or substan-
tive unreasonableness.”)); Dougherty, 754 at 1358 (“procedural rea-
sonableness”); United States v. Waters, 937 F.3d 1344, 1358 (11th Cir.
2019) (“procedural reasonableness”); Oudomsine, 57 F.4th at 1264
(“procedural reasonableness”). To the contrary, a careful reading
of Gall makes clear that the Supreme Court there identified two
types of challenges: (1) those alleging a “procedural error”; and (2)
those challenging the sentence’s “substantive reasonableness.” 552
U.S. at 51 (emphasis added). Our “procedural reasonableness”
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 didn’t.
Second, both in Gall and since, the Supreme Court has pre-
scribed a distinct order of battle: An appellate court should “first”
assure itself that the district court committed no procedural error,
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18 Newsom, J., Concurring 22-10509
and “then” review the sentence itself for substantive reasonable-
ness. Gall, 552 U.S. at 51. As the Court recently reiterated, “[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 court’s chosen
sentence was ‘reasonable’ or whether the judge instead ‘abused his
discretion in determining that the § 3553(a) factors supported’ the
sentence imposed.” 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 Court’s decisions make clear that a re-
viewing court can apply a “presumption of reasonableness” only at
Step 2, when reviewing the sentence for substantive reasonable-
ness—not at Step 1, when reviewing for procedural error. In Gall’s
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, “seek to embody the § 3553(a) consid-
erations,” so it’s fair to presume that a within-Guidelines sentence
reflects a reasonable application of § 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 satisfied
itself “that the district court’s sentencing decision is procedurally
sound.” 552 U.S. at 51. All of this, as the Supreme Court explained
in Rosales-Mireles, “makes eminent sense.” 138 S. Ct. at 1910. The
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22-10509 Newsom, J., Concurring 19
district court, it said there, is ultimately charged “with determining
whether, taking all sentencing factors into consideration, including
the correct Guidelines range, a sentence is sufficient, but not
greater than necessary.” Id. (internal quotations omitted). But if
“the district court is unable properly to undertake that inquiry be-
cause of ” a procedural error—including, in that case, “an error in
the Guidelines range”—then the resulting sentence “no longer
bears the reliability that would support a presumption of reasona-
bleness on review.” Id. (internal quotations omitted).2
Once one appreciates that reviews for procedural error and
substantive reasonableness are “entirely separate inquir[ies],” id.,
and, importantly, that the former must precede the latter, it’s easy
to see how our miscategorization of procedural errors as substan-
tive—most notably, but not exclusively, a district court’s considera-
tion of an improper sentencing factor—undermines Gall’s ordering
principle and skews the decisional calculus. Instead of applying
reasonableness review only after we’ve ensured that the district
court’s decisionmaking process was procedurally sound by
2 The Supreme Court’s 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 can’t tell whether it affected the district court’s
decision, the sentence isn’t “reliab[le],” and remand is required. Rosales-Mire-
les, 138 S. Ct. at 1910. Things are different 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 didn’t “substantially affect” the result-
ing sentence, we’re safe to affirm. 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 Court’s sentencing decisions
tell us about error preservation? Two things, I think. First, and
perhaps most fundamentally, an objection on “reasonableness”
grounds does nothing—because it’s a non sequitur. “Reasonable-
ness,” the Court recently reiterated, is neither a trial-court objec-
tion nor “the substantive standard that trial courts apply under
§ 3553(a).” Holguin-Hernandez, 140 S. Ct. at 763. Rather, it’s an ap-
pellate standard of review: It is simply “the label we have given to
the familiar abuse-of-discretion standard that applies to appellate
review of the trial court’s sentencing decision.” Id. at 766 (internal
quotations and emphasis omitted).; see also Pugh, 515 F.3d at 1188
(“[T]he Court ‘expressly equated’ reasonableness review ‘with the
old abuse-of-discretion standard used to review sentencing depar-
tures.’”). So, to object, as Curtin’s trial counsel did here, to the
“reasonableness” of the district court’s sentencing decision is an
empty gesture—it’s the equivalent of saying to the district judge,
“I object because you abused your discretion.” Neither puts the
district court on notice that it has committed any particular error—
just that it was wrong in some vague, unspecified way.
Which leads to the second preservation-related lesson that I
think we can draw from the Supreme Court’s sentencing
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22-10509 Newsom, J., Concurring 21
decisions—namely, that at least as matters currently stand, they
don’t do anything to alter the usual preservation rules. The Court
was recently “ask[ed] to decide” both “what is sufficient to preserve
a claim that a trial court used improper procedures in arriving at its
chosen sentence” and “when a party has properly preserved the
right to make particular arguments supporting its claim that a sen-
tence is unreasonably long.” Holguin-Hernandez, 140 S. Ct. at 767
(emphasis omitted). The most it was willing to venture was that
the defendant there “properly 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 ‘sufficient,’ while a sentence of 12 months or
longer would be ‘greater than necessary’ to ‘comply with’ the stat-
utory purposes of punishment” within the meaning of § 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 court’s ruling and state
“the grounds for that objection.” Fed. R. Crim. P. 51(b). A chal-
lenge is properly preserved only if it “articulate[s] the specific na-
ture of [the defendant’s] objection . . . so that the district court may
reasonably have an opportunity to consider it.” United States v.
Zinn, 321 F.3d 1084, 1090 n.7 (11th Cir. 2003). “A sweeping, general
objection is therefore insufficient.” Coglianese, 34 F.4th at 1009–10.
Nothing in the Supreme Court’s sentencing decisions—Holguin-
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22 Newsom, J., Concurring 22-10509
Hernandez or otherwise—suggests that those rules are inapplicable
to sentencing challenges.
Accordingly, to preserve for appeal the argument that the
district court committed a quintessential “procedural error”—say,
a miscalculation of the Guidelines range—a 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 factor—
anything less than a specific objection would fail to alert the district
court to the alleged error. So too for all other input-based, proce-
dural errors: Specific error, specific objection.
And what if the defendant’s challenge is what I’d call a “true”
output-related substantive-reasonableness challenge—for instance,
that the district court’s chosen sentence is just (my paraphrase)
“too long”? There, I think—and as Holguin-Hernandez seems to
confirm—all the defendant needs to say is, in effect, “My sentence
is too long.” See 140 S. Ct. at 766. To be clear, though, the tolerance
for greater generality doesn’t stem from the fact that the defend-
ant’s 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 defendant’s allegation, that’s all he needs to say
in order to state “the grounds for [his] objection,” Fed. R. Crim. P.
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22-10509 Newsom, J., Concurring 23
51(b), and thereby give the district court a fair “opportunity to con-
sider it,” Zinn, 321 F.3d at 1090 n.7. A different stripe of substantive-
reasonableness challenge would likely require a different objection.
A defendant taking aim, for instance, at a district court’s imposition
of a particular condition of supervised release would presumably
need to train his fire specifically on that condition. See, e.g., id. at
1087, 1089–91 (holding that “if a defendant fails to clearly articulate
a specific objection [to the special conditions of supervised release]
during sentencing, the objection is waived on appeal and we con-
fine our review to plain error”).
Applying the usual preservation rules to all sentencing chal-
lenges—of whatever stripe—dovetails with the practical consider-
ations that the Supreme Court has emphasized in its sentencing de-
cisions. For one, it has stressed that district courts “have an institu-
tional advantage over appellate courts in making [sentencing] de-
terminations.” Gall, 552 U.S. at 52. “The sentencing judge is in a
superior position to find facts and judge their import under
§ 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.” 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 first 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) (“Congress sought to ‘provide 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.’” (alterations in
original) (quoting 28 U.S.C. § 991(b)(1)(B))). Consistency in sen-
tencing is a worthy aim—one that, it seems to me, is achieved not
only through the consistent application of the Sentencing Guide-
lines, see id. at 253–54, but also through the uniform application of
the rules that govern appellate review.
* * *
Clearly, I got more than I bargained for in this case—and, by
extension, so did you. What I found, though—and what I hope I’ve
demonstrated—is that our sentencing precedent is a crazy quilt.
First, we’ve been freakishly inconsistent in our characterization of
sentencing challenges as “substantive,” “procedural,” or (tellingly)
both. And in important respects, even where we have settled into
something that might be called a pattern, we’ve chosen poorly. No-
where is that more true, in my view, than in our classification as
substantive of what is to me the self-evidently procedural challenge
to a district court’s consideration of an improper sentencing factor.
Second, we’ve been just as erratic in our pronouncements about
what suffices to preserve sentencing-related challenges: One day, a
boilerplate objection will suffice, the next day it won’t.
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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 Court’s own sentencing decisions. To start, we
should hold that all (as I’ve called them) “input”-related challenges
are allegations of “procedural error” and should be assessed at the
outset, before turning to evaluate, as a matter of “substantive rea-
sonableness,” the district court’s “output”—i.e., the sentence itself.
And when determining whether a defendant has properly pre-
served his sentencing-related challenge—whether substantive or
procedural—we should apply the usual rules and ask whether he
specifically stated the grounds of his particular objection, in a man-
ner that clearly put the district court on notice of its alleged error.
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