The case is United States v. Early, and Judge Martin starts her concurrence way:
Where a sentencing court addresses the factors set out in 18 U.S.C.
§ 3553(a) and imposes a sentence within the statutory maximum, this court’s
precedent teaches deference to that judgment on any variance above the Guideline
range, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241
(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percent
upward variance from the maximum Guideline sentence); United States v.
Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentence
representing a 161 percent upward variance); United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281
percent upward variance). Indeed, in all the cases decided by this court since
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found none
in which we vacated an upward variance from the Sentencing Guidelines on
reasonableness grounds. For this reason, even though Mr. Early’s sentence of
210-months imprisonment represents a 116 percent variance above the 97-month
sentence set by the top of his Guideline range and a remarkable 169 percent
increase from the 78-month sentence requested by the government itself, I cannot
say the panel’s decision here is contrary to our precedent.
At the same time, I write separately to note that this Court has declined to
exercise similar deference toward a sentencing court’s decision to grant a
downward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19
(11th Cir. 2011) (holding that a 42 percent downward variance was substantively
unreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en
banc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)
(holding that a 100 percent downward variance was substantively unreasonable).
This, even where the extent of the variance from the Guideline range was far
smaller and where the reasons given by the sentencing court were more
My reading of these cases tells me that in considering sentences above the
Guideline range, we look only to whether the sentencing court seemed to consider
the § 3553(a) factors and we ignore whether the court might have disregarded one
of the factors or weighed the factors in an unreasonable way. In contrast, for
downward variances, we show no such deference and instead scrutinize how a
sentencing court applied each and every § 3553(a) factor. We even go so far as to
decide for ourselves whether the factors were weighed correctly. See Irey, 612
F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.
And Judge Martin finishes like this:
In sum, even though our case law purportedly requires “a significant justification”
to support a “major departure” from the Guidelines, see Pugh, 515 F.3d at 1201,
the panel’s review of Mr. Early’s 116 percent upward variance evinces little
indication that such a requirement even applies here.
Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work.
One of the cases that Martin cites is Jayyousi, which is the co-defendant's name in Jose Padilla's case. There, the 11th Circuit found that the district court's below guideline sentence was unreasonable and cert was just denied. But, the case is far from over. Check out this article about the DoD report explaining how Padilla was tricked into believing that the feds injected him with truth serum:
How long till the motion for new trial is filed?
In 2006, a lawyer for Jose Padilla, the accused dirty-bomb plotter, made an explosive claim in a federal court filing: the "enemy combatant" was "given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."
But what Seymour failed to disclose, reported here for the first time, was that Padilla was given the flu shot during an interrogation session and told by his interrogators the injection was "truth serum," according to a declassified Department of Defense (DoD) inspector general's report that probed the use of "mind-altering drugs" during the interrogation of war on terror detainees.
Sanford Seymour, the technical director of the US Naval brig in South Carolina where Padilla was held, however, vehemently denied the charge during a 2006 hearing to determine whether Padilla, a US citizen, was competent to stand trial. Seymour asserted Padilla was injected with an influenza vaccine.
The inspector general's investigation determined that although Padilla was not administered mind-altering drugs (such as LSD), "the incorporation of a routine flu shot into an interrogation session ... was a deliberate ruse by the interrogation team, intended to convince [redacted] he had been administered a mind-altering drug."