United States v. Lawrence F. Curtin

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[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 LUCK, 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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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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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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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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“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. Dif-

ferent judges from that district presided over Curtin’s 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. § 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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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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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.