Case: 11-13678   Date Filed: 08/12/2014   Page: 1 of 65


                                                                      [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 11-13678
                         ________________________

                 D.C. Docket No. 7:07-cr-00507-VEH-TMP-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellant,

                                    versus

JAMES WINSTON HAYES,

                                                          Defendant - Appellee.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                          (August 12, 2014)

Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

JORDAN, Circuit Judge:

     “Corruption,” Edward Gibbon wrote more than two centuries ago, is “the

most infallible symptom of constitutional liberty.”     EDWARD GIBBON, THE
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HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at

805 (David Womersley ed., Penguin Classics 1995) [1781]. And so, although

unfortunate, it is perhaps not surprising that, even today, people continue to pay

bribes to government officials with the expectation that they will make decisions

based on how much their palms have been greased, and not what they think is best

for the constituents they serve.

      In this criminal appeal involving corruption in Alabama’s higher education

system, we consider whether the district court abused its discretion by imposing a

sentence of three years of probation (with a special condition of six to twelve

months of home confinement) on a 67-year-old business owner who—over a

period of four years—doled out over $600,000 in bribes to a state official in order

to ensure that his company would continue to receive government contracts, and

whose company reaped over $5 million in profits as a result of the corrupt

payments. For the reasons which follow, we hold that such a sentence was indeed

unreasonable.

                                            I

      We begin with the facts, and then discuss what transpired in the district court

at sentencing. Along the way, and in response to our colleague’s dissent, we add a

bit of background on the relationship between departures under U.S.S.G. § 5K1.1

and variances after United States v. Booker, 

(2005).


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                                         A

      For years, James Winston Hayes ran ACCESS Group Software, LLC, a

successful computer software company in Alabama. ACCESS sold educational

software to the Alabama Department of Postsecondary Education (“ADPE”), and

the two-year colleges it regulates. ACCESS did business with more than 25 two-

year colleges and technical schools in Alabama.

      Starting in 2002, when he was 59, Mr. Hayes decided to increase his

company’s chances of being profitable by rigging the competitive bid processes

through which the ADPE awards contracts to vendors. Over the course of four

years, Mr. Hayes paid over $600,000 in bribes to Roy Johnson—the then-

Chancellor of the ADPE—his family, and his friends. The payments, to list a few,

included $124,400 towards the construction costs of Mr. Johnson’s home; $23,850

for a sound system in that home; and $55,000—as directed by Mr. Johnson—to

Mr. Johnson’s son-in-law, an attorney, for legal services that were never provided

to Mr. Hayes or ACCESS. In order to conceal the nature of the payments, Mr.

Hayes and others reimbursed third parties and created false invoices, contracts, and

mortgages.

      The bribes proved successful. From 2002 to 2006, ACCESS received more

than $14 million in gross income from the ADPE, from which it realized a profit of

approximately $5 million.


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       At some point, the federal government began investigating corruption at the

ADPE. During the early stages of that investigation, the government contacted Mr.

Hayes and subpoenaed his bank records. Perhaps realizing that the jig was up, Mr.

Hayes obtained counsel and began cooperating with the government. Among other

things, Mr. Hayes permitted his office and vehicle to be wired for audio and video

and personally wore a recording device to tape meetings with several targets of the

investigation. He also provided the government with documentation verifying his

illicit financial dealings with a number of Alabama officials.

       In 2007, the government charged Mr. Hayes by information with bribing Mr.

Johnson, the former Chancellor of the ADPE—an agency receiving federal

funds—in violation of 18 U.S.C. § 666(a)(2) (Count 1), and conspiring to commit

money laundering, in violation of 18 U.S.C. § 1956(h) (Count 2). The information

also sought criminal forfeiture based on the charges in Counts 1 and 2.         In

February of 2008, Mr. Hayes pled guilty to Counts 1 and 2, and consented to

forfeiture.

       The probation office prepared a presentence investigation report to be used

at Mr. Hayes’ sentencing. The report indicated that, under the 2010 version of the

Sentencing Guidelines Manual, Mr. Hayes scored out to a total offense level of 33

and had a criminal history category of I, resulting in an advisory guidelines range

of 135 to 168 months’ imprisonment. Neither party voiced objections to the


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report’s calculation of the advisory guidelines, and as a result the district court

adopted that range at the initial sentencing hearing. 1

                                              B

       The Sentencing Guidelines contain a number of departure provisions.

Among them is § 5K1.1, which allows a departure from the advisory guidelines

range “[u]pon motion of the government stating that the defendant has provided

substantial assistance in the investigation or prosecution of another[.]”

       Because § 5K1.1 is silent as to the methodology to be used in determining

the extent of a substantial assistance departure, the government has discretion in

recommending a methodology, and the district court has discretion in deciding

what methodology to use once it grants a motion for departure. See United States

v. Lindsey, 

, 245-46 (4th Cir. 2009); United States v. Floyd, 

, 312 n.6 (3d Cir. 2007). As the Seventh Circuit has explained:

       Once the sentencing court decides to depart downward, it in turn may
       quantify the assistance the defendant provided by a simple numerical
       reduction in the offense level or by a percentage reduction of the total
       sentence; both methods (and perhaps others we do not consider here)
       are tools that appropriately recognize the rationale of the guidelines—
       that the reduction should reflect accurately the assistance that the
       defendant has rendered to the government.

United States v. Senn, 

, 332 (7th Cir. 1996). See also United States v.


       1
          The district court held a second sentencing hearing because it thought it might need
testimony from witnesses concerning restitution. The parties ended up stipulating as to
restitution, and the district court adopted their stipulation.
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Vazquez-Lebron, 

, 445 (3d Cir. 2009) (“A [d]istrict [c]ourt need not

follow a particular formula in calculating a § 5K1.1 departure—it may be

appropriate to depart by a certain number of months or guideline ranges below the

initial sentencing range.”); United States v. Hargrett, 

, 450 n.1 (2d

Cir. 1998) (“A downward departure based on [§] 5K1.1 does not require the

district [court] to pick a new offense level and a particular sentence within the

range set for that level; rather the court may simply pick a sentence of so many

months without mention of an offense level.”).

      Not surprisingly, therefore, reported cases illustrate a variety of approaches

to § 5K1.1 departures. Sometimes, as was the case here, the departure is based on

offense levels deducted from the defendant’s total offense level. See, e.g., United

States v. Livesay, 

, 1087 (11th Cir. 2008) (government

recommendation of three-level downward departure from defendant’s total offense

level); United States v. Martin, 

, 1233 & n.4 (11th Cir. 2006)

(government recommendation of nine-level downward departure from defendant’s

total offense level); United States v. Knapp, 

, 568 (8th Cir. 1992)

(district court’s seven-level downward departure from defendant’s total offense

level). Sometimes the departure is based on a percentage deduction from the

bottom, midpoint, or top of the defendant’s advisory guidelines range. See, e.g.,

United States v. Burns, 

, 889 (8th Cir. 2009) (en banc) (government


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recommendation of 15% downward departure); United States v. Senn, 

, 332 (7th Cir. 1996) (government recommendation of 50% downward

departure). And sometimes the departure is based on a reduction of a specific

number of months from the defendant’s advisory guidelines range. See, e.g.,

United States v. Koufos, 

, 1254 (10th Cir. 2011) (government

recommendation of 20-month reduction from bottom and top of applicable range).

      Regardless of the methodology used, once the district court grants a motion

for downward departure under § 5K1.1, it will be left with a new number (or range

of numbers) insofar as the Sentencing Guidelines are concerned. See United States

v. Hippolyte, 

, 541 (11th Cir. 2013) (“A departure provision is a

change to a sentencing guideline range based on, e.g., substantial assistance to

authorities.”); U.S.S.G. § 1B1.1, n.1(E) (“‘Downward departure’ means [a]

departure that effects a sentence less than a sentence that could be imposed under

the applicable guideline range or a sentence that is otherwise less than the

guideline sentence.”). The “calculation of the initial advisory [g]uidelines range,

along with any applicable departures, results in a ‘final advisory [g]uidelines

sentencing range.’” United States v. Losoya, 

, 626 (8th Cir. 2010).

      A concrete example helps put these principles into focus. Assume that a

defendant has an advisory guidelines range of 70-87 months’ imprisonment. If the

district court grants a government § 5K1.1 motion which recommends a 50%


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departure from the bottom of that range, the new bottom number for guidelines

purposes will be 35 months of imprisonment (50% of 70 = 35). The district court

will then have to determine whether, under the factors set forth in 18 U.S.C. §

3553(a), it should sentence the defendant to 35 months, something less, or

something more. That is the approach dictated by the Sentencing Guidelines and

our cases. See U.S.S.G. § 1B1.1(a)-(c) (“Application Instructions”) (district court

must first (a) determine the guidelines range, and then (b) consider departures,

including those under Chapter 5K, before (c) taking into account the § 3553(a)

factors); United States v. McVay, 

, 1356 (11th Cir. 2006) (“[A]fter it

has decided the length of departure warranted by the substantial assistance motion,

the district court is obliged to take into account the advisory [g]uidelines and the

sentencing factors set forth in . . . § 3553(a) in fashioning a reasonable sentence.”);

(same). 2

                                                C

       In this case, the government filed a motion for downward departure pursuant

to § 5K1.1 based on Mr. Hayes’ substantial assistance, as well as a separate

sentencing memorandum. In its motion, which discussed only matters related to

Mr. Hayes’ cooperation and assistance, the government recommended that the

       2
         If the district court sentences a defendant to a term different than the one produced by a
§ 5K1.1 downward departure, such a sentence is “considered a ‘variance’” in guidelines
parlance. See U.S.S.G. § 1B1.1, background. See also United States v. Lee, 

,
1165 n.5 (9th Cir. 2013) (“a ‘variance’ [is] the third step of the [g]uidelines procedure”).
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district court depart from an offense level of 33 to an offense level of 25, with a

corresponding advisory guidelines range of 57-71 months’ imprisonment. Then,

apparently traveling under the unstated assumption that the district court would

grant its motion for departure, the government advocated that the district court

sentence Mr. Hayes to 60 months in custody. In its separate memorandum, the

government again recommended a final sentence of 60 months’ imprisonment,

based in large part on its § 5K1.1 motion for a downward departure. In so doing,

the government at times conflated the factors to be considered under § 5K1.1 with

the factors to be considered under § 3553(a). Although the government’s separate

bases for the ultimate 60-month recommendation may not have been artfully

stated, at the initial and second sentencing hearings the district court and the parties

understood that the government was moving for a downward departure (to 57-71

months in custody) under § 5K1.1 based solely on Mr. Hayes’ substantial

assistance, and that the government’s bottom-line recommendation of a 60-month

prison sentence corresponded to the point within the recommended post-departure

range where the government thought the district court should sentence Mr. Hayes

after considering the totality of the circumstances and the § 3553(a) factors. 3

      The district court pointed out, and the government agreed, that consistent

with 

, it had to rule on the motion for downward


      3
          This was the same methodology employed in 

n.4.
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departure before hearing from the parties on what would constitute a reasonable

sentence under § 3553(a). At the first sentencing hearing, the district court granted

the government’s § 5K1.1 motion, but departed more than the government had

recommended.      Considering only “[Mr. Hayes’] substantial assistance to the

government[,]” the district court found that the “appropriate . . . guideline[s] level

for consideration . . . [was] [l]evel 22, which when combined with the criminal

history category of I[,] create[d] an advisory guideline[s] range of 41 to 51

months.”

      After granting the government’s § 5K1.1 motion, the district court heard

from the parties (mainly at the second sentencing hearing) with respect to the

sentence it should impose.      Mr. Hayes requested a downward variance to a

sentence of probation or a relatively short term of imprisonment based on a number

of factors, including his culpability relative to Mr. Johnson, his otherwise law-

abiding life, his role as his father’s former caretaker, his age and deteriorating

physical health, and his not posing a risk to society. The government responded

that a total sentence of 60 months’ imprisonment was appropriate because Mr.

Hayes’ crimes were serious and involved the corruption of high-ranking public

officials, obstructive behavior, and significant amounts of state funds.         The

government emphasized that the sentence imposed on Mr. Hayes should be one

that not just punished him for his conduct, but also deterred others from engaging


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in similar conduct.

      The district court stated that it had sufficient information on all of the §

3553(a) factors, except for the need to avoid unwarranted sentence disparity, and

proceeded to read summaries of the dispositions in 14 related cases from a chart

provided by the probation office. The district court then noted that Mr. Hayes’

“offense was serious” and that the “sentence should promote respect for the law

and provide just punishment for the offense.” Additionally, the district court

remarked “that just because a crime is a white collar crime, it does not mean that it

does not need to be deterred,” and “agree[d] with the government that prison

sentences are probably the best deterrence . . . [for] other people who might

consider similar conduct.” The district court found that Mr. Hayes “seem[ed]

genuinely remorseful,” was unlikely to commit further crimes, and was not a risk

to the public. In response to Mr. Hayes’ contentions regarding his age and health,

the district court noted that it was “aware of the ability of the government to

provide almost any medical care that’s needed[] [and that although] . . . age is

something [it] can consider, . . . [it did not] consider it to be overwhelming or a

large factor in this case.”

      Returning to the disparity issue, the district court said the following: “And

I’ve spoken at length about the need to avoid unwarranted sentencing disparit[y]

among similarly situated defendants. And in having gone through all of that, I


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don’t want anybody to think that [it] was like the overwhelming factor. It’s just I

had a lot of information about that . . . that I hadn’t focused on and that I wanted to

go through.” The district court did not explain what disparity, if any, would result

if it sentenced Mr. Hayes to some term of imprisonment.

       The district court, noting its authority to impose a non-guidelines sentence

under 

, sentenced Mr. Hayes to concurrent terms of

three years’ probation, with six to twelve months of home confinement. It also

ordered Mr. Hayes to pay $628,454.28 in restitution, to forfeit $5 million, and to

pay a $1,000 fine and $200 in special assessments. The district court stated that

the sentence was “sufficient, but not greater than necessary, to comply with the

statutory purposes of sentencing and is reasonable when considering the sentencing

factors found at [§] 3553(a).” The government objected to the procedural and

substantive reasonableness of the sentence, including the extent of the downward

departure pursuant to § 5K1.1 and the reasonableness of the probationary terms the

district court imposed.

      On appeal, the government does not challenge the extent of the district

court’s § 5K1.1 departure. The only argument the government makes is that the

concurrent three-year terms of probation are substantively unreasonable. As a

result, that is the only argument we address.




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                                         II

      In imposing sentence, a district court may not presume that the range

produced by application of the Sentencing Guidelines is reasonable, see Rita v.

United States, 

, 351 (2007), and must consider the factors set out in

18 U.S.C. § 3553(a). These are “(1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for the sentence

imposed (A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (B) to afford adequate

deterrence to criminal conduct; (C) to protect the public from further crimes of the

defendant; and (D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most efficient manner;

(3) the kinds of sentences available; (4) the kinds of sentence and the sentencing

range [as set forth in the Sentencing Guidelines] . . .; (5) any pertinent policy

statement . . . issued by the Sentencing Commission . . . .; (6) the need to avoid

unwarranted sentencing disparities among defendants with similar records who

have been found guilty of similar conduct; and (7) the need to provide restitution to

any victims of the offense.” 18 U.S.C. § 3553(a).

                                         A

      We review the substantive reasonableness of a sentence for abuse of

discretion. See Gall v. United States, 

, 51 (2007). In conducting that


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review, we examine the “totality of the circumstances, including the extent of any

variance from the [g]uidelines range,” but we cannot presume that a sentence

outside of that range is unreasonable. 

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 that [we] might have reasonably concluded that a different

sentence was appropriate is insufficient to justify reversal[.]” 

United

States v. Langston, 

, 1237 (11th Cir. 2009) (“The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court, and we will not substitute our judgment in weighing the

relevant factors.”) (citation and internal quotation marks omitted). Nevertheless,

as we said several years ago,

      [a] district court abuses its discretion when it (1) fails to afford
      consideration to relevant factors that were due significant weight, (2)
      gives significant weight to an improper or irrelevant factor, or (3)
      commits a clear error of judgment in considering the proper factors.
      As for the third way that discretion can be abused, a district court
      commits a clear error of judgment when it considers the proper factors
      but balances them unreasonably[,] . . . arriving at a sentence that does
      not achieve the purposes of sentencing as stated in § 3553(a).

United States v. Irey, 

, 1189 (11th Cir. 2010) (en banc) (citations and

internal quotation marks omitted).

      We acknowledge the institutional superiority that district courts possess with

regards to sentencing, and are mindful that appellate review for reasonableness is

not a license to substitute our views for those of the district court.         We are
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nevertheless convinced, under the deferential abuse of discretion standard, that the

district court here committed a clear error of judgment in balancing the § 3553(a)

factors, and that its downward variance to probation produced a sentence that was

outside of the range of reasonable sentences permitted by the record. See 

; 

.

      In at least one other case involving both an initial § 5K1.1 departure and a

subsequent variance, we analyzed the substantive reasonableness of the variance

employing the post-departure range/number as the reference point. See United

States v. Crisp, 

, 1289-90 (11th Cir. 2006) (“Even if the district court

had not based the extent of the § 5K1.1 departure on improper considerations, its

improper leap from the post-departure guideline range of 6-12 months to 5 hours

would still have to be corrected.”). We do the same here, and use the 41-51 month

range produced by the § 5K1.1 departure as the reference point for the variance.

      The district court recognized that Mr. Hayes’ crimes (bribes of $600,000

paid out over four years, resulting in approximately $5 million in profits) were

serious, that white-collar offenses need to be deterred, and that prison sentences are

probably the best deterrent for those who might think about engaging in similar

conduct. It never explained, however, how concurrent probationary terms with a

period of home confinement would constitute just punishment for Mr. Hayes’

multi-year bribery scheme, provide general deterrence for others, or promote


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respect for the law. See generally United States v. Shaw, 

, 1238

(11th Cir. 2009) (explaining that the “justification must be compelling enough to

support the degree of the variance and complete enough to allow for meaningful

appellate review”).

      As Mr. Hayes points out, the district court found that he was genuinely

remorseful, was not likely to commit further crimes, and was not a risk to the

public, but these factors—which are usually present in most white-collar cases

resulting in a guilty plea—cannot be seen in a vacuum and must be balanced

against the other applicable § 3553(a) factors. In any event, the district court did

not explain why they called for a variance down to probation.

      We recognize that the district court took into account the possibility of

unwarranted sentencing disparity, but that factor, on this record, did not justify

sentencing Mr. Hayes to probation. “[T]he need to avoid unwarranted sentencing

disparity . . . requires the [district] court to consider other similarly situated

defendants . . . who were convicted of similar crimes.” United States v. McQueen,

, 1160 (11th Cir. 2013). First, the district court never explained

what unwarranted sentencing disparity would result if Mr. Hayes were sentenced

to some term of imprisonment, and our review of the chart prepared by the

probation office does not reveal any such unwarranted sentencing disparity among

similarly situated individuals. The one person who could be said to be most


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closely situated to Mr. Hayes was Mr. Johnson, the former Chancellor of the

ADPE and the recipient of Mr. Hayes’ bribes. Mr. Johnson, who like Mr. Hayes

received a downward departure based on a government § 5K1.1 motion, was

sentenced to 78 months in prison after pleading guilty to conspiracy to commit

bribery, bribery, conspiracy to commit money laundering, obstruction of justice,

and tampering with a witness. Second, even if the loss resulting from crimes

involving corruption can be seen as a rough proxy for similarity, four of the five

related defendants who were responsible for losses over $250,000 received prison

terms. And the one who was sentenced to probation was responsible for just over

$300,000 in losses, less than half of the amount of money that Mr. Hayes was

ordered to pay in restitution.

         The district court also considered Mr. Hayes’ age and health, but it did not

think they were overwhelming factors. They, too, do not support Mr. Hayes’

sentence of probation.

                                           B

         In a number of opinions—some involving defendants who provided

substantial assistance to the government—we have explained that general

deterrence is an important factor in white-collar cases, where the motivation is

greed.     In those same opinions, we have set aside sentences of little or no

imprisonment because they do not constitute just punishment for the offense, do


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not promote respect for the law, and will not do much to deter similar criminal

activity by others. See, e.g., United States v. Kuhlman, 

, 1328-29

(11th Cir. 2013) (vacating, as substantively unreasonable, sentence of probation

(for “time served” while on pretrial release) for defendant responsible for $3

million health care fraud scheme); United States v. Livesay, 

, 1287-

89 (11th Cir. 2009) (vacating, as substantively unreasonable, sentence of probation

for defendant involved in fraud scheme resulting in loss of over $80 million);

(vacating, as substantively unreasonable, sentence of

seven days in custody for defendant involved in fraud scheme resulting in loss of

over $80 million); 

(vacating, as substantively

unreasonable, sentence of probation for defendant who participated in bank fraud

scheme resulting in loss of about $484,000). We come to the same conclusion

here.

        Bribery cannot properly be seen as a victimless crime, for in a sense it

threatens the foundation of democratic government. Putting aside the financial

havoc it can cause, bribery tears at the general belief of the citizenry that

government officials will carry out their duties honestly, if not always competently.

And that harm, though it may at times appear intangible, is real.4


        4
          “[A]mong a people generally corrupt liberty cannot long exist.” EDMUND BURKE,
Letter to the Sheriffs of Bristol (April 3, 1777), in HENRY ROGERS, THE WORKS OF THE RIGHT
HON. EDMUND BURKE, VOL. 1, at 221 (London 1837).
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                                        C

      We do not mean to suggest that a downward variance can never be granted

in white-collar cases, or that a sentence of probation is never permissible for

defendants convicted of bribery or corruption offenses. Indeed, we have upheld, as

reasonable, downward variances in several fraud cases where the government has

appealed. See United States v. Vawter, 167 F. App’x 101, 103, 

(11th Cir. 2006); United States v. Montgomery, 165 F. App’x 840, 842-43, 

(11th Cir. 2006).

      But there are bribes, and then there are bribes. Mr. Hayes did not just give a

one-time gratuity to a local zoning inspector to expedite a building permit for a

pool. He paid over half a million dollars in bribes, over a four-year period, to a

high-ranking Alabama official so that his company could continue to receive

lucrative government contracts—efforts which were rewarded by a corporate

bottom line that got fatter by $5 million—and for that he received probation. As

corruption cases go, this was bribery writ large, and on this record the district

court’s significant variance down to probation cannot stand.

                                        D

      In closing, we respond to some of the issues raised by our colleague in

dissent. As we explain, we disagree with his view of the case.

      First, our colleague says that the government led the district court into


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committing procedural error by recommending that Mr. Hayes’ offense level be

reduced by a certain number of levels for substantial assistance. We do not believe

that assessment is correct.         The numerous cases cited earlier in this opinion

indicate that one of the permissible ways to compute a departure under § 5K1.1 is

to reduce a defendant’s offense level. See 

; 

; 

n.6; 

& n.4;

. Although § 5K1.1 has been around for decades, we know

of no cases which have suggested, much less held, that a substantial assistance

departure cannot be accomplished in this manner. Tellingly, our colleague does

not cite to any. 5

       Second, according to our colleague we are sanctioning a procedural error

committed by the district court at the behest of the government. That, however, is

not so, for there was no procedural error. As we have already explained, nothing

in the text of § 5K1.1 prohibits a district court from effecting a substantial

assistance departure through a reduction of the defendant’s total offense level.

       5
         In the context of departures under § 5K2.0, we have written that, if the district court
chooses to depart, “it has ‘wide discretion’ in determining [the defendant’s] base offense level.”
United States v. Gibson, 

, 1253 (11th Cir. 2006). What we said in Gibson is
consistent with our decision in this case.

         Additionally, to the extent our colleague’s dissent might be read as suggesting that the
district court could only have “departed” downward within Mr. Hayes’ original sentencing range
of 135-168 months, such a suggestion would run counter to § 5K1.1. The Third and Fifth
Circuits have reversed § 5K1.1 “departures” within the original sentencing range, holding that
they are not “departures” at all. See 

; United States v.
Hashimoto, 

, 843-44 (5th Cir. 1999).
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“Accordingly, the district court’s reference to offense levels [here] in making its

discretionary decision of how far to depart did not amount to the application of a

‘sentencing range’ authorized and made applicable by the Sentencing

Guidelines[.]” 

. 6

       It may be that our colleague thinks that the § 5K1.1 motion did not justify

the substantial departure the government was recommending, and/or that the

district court departed too far when it granted that motion. Whatever the validity

of those concerns, we do not comment on them because no one has raised them on

appeal. The government could have tried to argue that the district court erred in

departing beyond its § 5K1.1 recommendation, or committed another type of

procedural error, but it chose not to make those arguments in its brief, and our

general practice is to not address issues that are not properly raised by the parties.

       We recognize that, normally, we ensure that there is no procedural error

before addressing a claim of substantive unreasonableness, see 

, but we will not reach out to address a possible procedural error when neither

the defendant nor the government have complained about it. Our cases, in fact, are

replete with the rule that we do not have a duty to raise and decide issues—even

       6
          Even if we assume that the district court committed procedural error, the government
did not unambiguously invite the alleged error, a point our colleague seemingly acknowledges by
conceding that the colloquy between the district court and the government “is somewhat
convoluted.” Under our precedent, the invited error doctrine is not triggered by ambiguous
statements or representations. See United States v. Dortch, 

, 1112 (11th Cir. 2012)
(“In the light of Dortch’s ambiguous statement to the district court, the doctrine of invited error
does not apply.”).
                                                21
             Case: 11-13678    Date Filed: 08/12/2014   Page: 22 of 65


constitutional ones—not mentioned by the parties. See, e.g., United States v.

Curtis, 

, 1310 (11th Cir. 2004); United States v. Rodriguez, 

, 950 n.3 (11th Cir. 2002); United States v. Nealy, 

, 830 (11th Cir.

1998).

      The cases our colleague cites are consistent with our general approach. In

those cases either the defendant or the government asserted procedural error in

contesting the sentence, and the panels in those cases understandably ruled on the

procedural challenges before addressing substantive reasonableness. See United

States v. Barner, 

, 1247-52 (11th Cir. 2009) (defendant raised claim

of procedural error); United States v. Carter, 

, 326 (4th Cir. 2009)

(government raised claim of procedural error); United States v. Stephens, 549 F3d

459, 466 (6th Cir. 2008) (defendant raised claim of procedural error); United States

v. Langford, 

, 207 (3d Cir. 2008) (defendant raised claim of

procedural error). Here there are no procedural challenges by either side.

                                        III

      The concurrent three-year probationary sentences in this case are

substantively unreasonable given the factors set forth in § 3553(a). First, the

sentences convey the message “that would-be white-collar criminals stand to lose

little more than a portion of their ill-gotten gains and practically none of their

liberty,” 

, and accordingly do not constitute just


                                         22
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punishment for Mr. Hayes’ offenses or promote respect for the law. Second, the

sentences do not provide for general deterrence because “[t]he threat of spending

time on probation simply does not, and cannot, provide the same level of

deterrence as can the threat of incarceration in a federal penitentiary for a

meaningful period of time.” 

. Third, the sentences were

not required to eliminate any sentencing disparity among similarly situated

offenders because no such disparity existed. The sentences imposed on Mr. Hayes

are therefore vacated, and the case is remanded for resentencing.

      VACATED AND REMANDED FOR RESENTENCING.




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TJOFLAT, Circuit Judge, dissenting:

       I fully agree with the court that the sentence of probation Hayes received in

this case of massive public corruption is shockingly low and should not have been

imposed. In appealing the sentence, the Government treats the District Court as

the scapegoat, as if placing Hayes on probation was all the court’s doing. The truth

is that it was the Government’s doing. To ensure that Hayes was given adequate

credit for cooperating in its investigation, the Government deliberately led the

District Court to abandon the Sentencing Guidelines, which called for a prison

sentence of 135 to 168 months, 1 and then to ignore the Supreme Court’s explicit

instructions, in Gall v. United States, 

, 

, 

(2007), on the procedure to use in fashioning an appropriate sentence. This set

the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months

and its creation of a downward variance to a sentence of probation.

       In appealing Hayes’s sentence to this court, the Government deliberately

avoids any discussion of the District Court’s procedural error. 2 To the contrary, it

accepts the fictitious Guideline range the court adopted. All it complains of is the

variance from that fictitious range to a sentence of probation, arguing that it is

       1
         Although Hayes was to receive two sentences—one on Count One of the information,
the other on Count Two—the parties and the court refer to the sentences as one sentence. For
ease of discussion, I do the same.
       2
          In doing so, the Government invites this court to disregard the Supreme Court’s
instruction in Gall v. United States, 

, 

, 

(2007).

                                                24
               Case: 11-13678      Date Filed: 08/12/2014       Page: 25 of 65


substantively unreasonable. Because it invited the procedural error, which, in turn,

led to the complained-of substantive error, the “invited error doctrine” precludes

the Government from prevailing in this appeal. Yet the court fails to acknowledge

that a procedural error has occurred. Instead, it assesses the substantive

reasonableness of Hayes’s procedurally flawed sentence—something the Supreme

Court prohibits—and thereby avoids the need to grapple with the Government’s

invited error.3 I dissent from the court’s failure to invoke the doctrine and to send

the Government hence without day.

       In part I of this opinion, I briefly recount the facts giving rise to Hayes’s

conviction and sentencing. In part II, I describe how the Guidelines are supposed

to operate and will show how the Government and the District Court misapplied

the Guidelines and set the stage for the sentence at issue. Part III outlines the role

the courts of appeals play in reviewing a defendant’s sentence, pinpoints the

procedural errors in this case, and explains why the invited error doctrine precludes

the Government from capitalizing on its induced error and obtaining relief. Part IV

concludes.




       3
         In ignoring the procedural error, the court effectively adopts the approach the
Government takes in his brief—that this court should entertain its substantive unreasonableness
argument straightway without first determining whether the District Court committed procedural
error. See infra part III.

                                              25
             Case: 11-13678     Date Filed: 08/12/2014   Page: 26 of 65


                                          I.

      From 2002 until 2006, James Hayes paid over $600,000 in bribes to Roy

Johnson, the Chancellor of the Alabama Department of Postsecondary Education

(the “ADPE”), which included: (1) a $124,000 payment to Johnson for expenses

Johnson incurred in constructing his home, disguised as a payment to Johnson’s

driver, Lanier Anderson Higgins, for work Higgins never performed; (2) a $23,850

payment to Johnson to fund a sound system in Johnson’s home, which Hayes

disguised by using a third-party business to pay for the sound system and then

reimbursing the business; (3) a $55,000 payment to Johnson’s son-in-law Greg

Morgan, an attorney, for legal services he never provided; and (4) a $24,418.93

payment to the Retirement Systems of Alabama on behalf of the Dean of Nursing

at Southern Union State Community College.

      In exchange, Johnson ensured that Access Group Software, LLC, of which

Hayes was founder and owner, would win contracts to provide software services

and associated services. Most of the time Access was the low bidder. On the few

occasions when it was not, Johnson instructed the college president to award

Access the contract anyway. Johnson’s influence was such that the colleges

bought from Access even when its products were inferior to those of other bidders.

In total, Access’ gross revenue increased to over $14 million and its profits to $5

million.


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      Hayes’s involvement in the corruption at the ADPE began to unravel after a

federal grand jury subpoenaed his bank records. Hayes immediately took steps to

disguise the true nature of his relationship with Johnson, but his attempts to

conceal his criminal activity failed, and he was arrested for bribery, in violation of

18 U.S.C. § 666(a)(2). After he realized the strength of the Government’s case

against him, Hayes agreed to cooperate and assisted federal agents in their

investigation of others involved in Johnson’s scheme.

      On December 26, 2007, the Government filed in the United States District

Court for the Northern District of Alabama an information charging Hayes in

Count One with federal-funds bribery, in violation of 18 U.S.C. § 666(a)(2), and in

Count Two with conspiring to launder money under 18 U.S.C. § 1956(a)(1)(B)(i),

in violation of §1956(h). The information also included a forfeiture count, Count

Three. It alleged that Hayes’s interests in the proceeds of the crimes charged in

Counts One and Two amounted to at least $5 million and that such interests were

subject to forfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).

The Government filed the information pursuant to a plea agreement it had reached

with Hayes. Pursuant to that agreement, Hayes, on February 21, 2008, pled guilty

to Counts One and Two and agreed to forfeit $5 million to the United States,




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representing his interest in the proceeds of the crimes alleged in those Counts. 4

The plea agreement contained a cooperation provision in which Hayes promised to

provide truthful and complete information about Johnson’s bribery scheme to the

Government’s investigators and at the Government’s request to testify before the

grand jury and at the trial of anyone indicted for participating in the scheme. In

return, the Government promised to recommend to the District Court at Hayes’s

sentencing that the court depart downward from the applicable Guidelines range

pursuant to U.S. Sentencing Guidelines Manual § 5K1.1, if Hayes’s cooperation

rose to the level of substantial assistance for the reasons stated in § 5K1.1. 5

                                                II.

       The Supreme Court has clearly prescribed the procedure a district court must

follow in sentencing a defendant. It is a three-step process. First, the district court

“begin[s] . . . by correctly calculating the applicable Guidelines range. As a matter

of administration and to secure nationwide consistency, the Guidelines should be

the starting point and the initial benchmark.” 

, 128 S. Ct. at
       4
          On October 27, 2008, the District Court entered a Final Order of Forfeiture. The order
recited that, pursuant to the plea agreement, Hayes agreed to forfeit to the United States $5
million “as proceeds of the illegal acts charged in Counts One and Two of the Information,” that
Hayes had “consented to the entry of a money judgment against him as part of his sentencing in
[the case],” and that “based . . . [on] the terms of [the] Plea Agreement, the Attorney General is
now entitled to possession of said property.” Doc. 16, at 1–2. The order then provided that
Hayes forfeited “the sum of $5,000,000.00 to the United States,” that the Attorney General was
“authorized to seize the property forfeited,” and that the “Order of Forfeiture operates as a
money judgment against . . . Hayes, thereby eliminating the requirement for ancillary
proceedings.” Doc. 16, at 2–3.
       5
           See infra part II.A.

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               Case: 11-13678        Date Filed: 08/12/2014        Page: 29 of 65


596 (citation omitted). Second, after arriving at the proper Guidelines range, the

court must “giv[e] both parties an opportunity to argue for whatever sentence they

deem appropriate.” 

court must “consider all of the [18 U.S.C.]

§ 3553(a) factors to determine whether they support the sentence requested by a

party.” 6 

128 S. Ct. at 596. In doing that, the court will bear in mind

that “[t]he Guidelines as written reflect the fact that the Sentencing Commission

examined tens of thousands of sentences and worked with the help of many others

in the law enforcement community over a long period of time in an effort to fulfill

[its] statutory mandate,” Rita v. United States, 

, 349, 

,

2464, 

(2007), to “assure the meeting of the purposes of

sentencing as set forth in [18 U.S.C. §] 3553(a)(2),” 28 U.S.C. § 991(b). “[W]hen

the [court’s] discretionary decision accords with the Commission’s view of the


       6
          18 U.S.C. § 3553(a) lists seven factors district courts are to consider when sentencing.
The first is “the nature and circumstances of the offense and the history and characteristics of the
defendant.” § 3553(a)(1). The second looks to the general purposes of sentencing,
       the need for the sentence imposed--
       (A) to reflect the seriousness of the offense, to promote respect for the law, and to
       provide just punishment for the offense;
       (B) to afford adequate deterrence to criminal conduct;
       (C) to protect the public from further crimes of the defendant; and
       (D) to provide the defendant with needed educational or vocational training,
       medical care, or other correctional treatment in the most effective manner.
§ 3553(a)(2). The third is “the kinds of sentences available,” the fourth is “the kinds of sentence
and the sentencing range” under the Guidelines, the fifth is “any pertinent policy statement . . .
issued by the Sentencing Commission,” the sixth is “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct,” and, finally, the seventh is “the need to provide restitution to any victims of the
offense.” § 3553(a)(3)–(7).

                                                 29
             Case: 11-13678      Date Filed: 08/12/2014    Page: 30 of 65


appropriate application of § 3553(a) in the mine run of cases, it is probable that the

sentence is reasonable.” 

, 127 S. Ct. at 2465. “If [the court]

decides that an outside-Guidelines sentence is warranted, [it] must consider the

extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.” 

, 128 S. Ct. at 597. The

court must “adequately explain” the reasons for arriving at the chosen sentence,

and “a major departure should be supported by a more significant justification than

a minor one.” 

Supreme Court explained in Peugh v. United States, ___

U.S. ___, ___, 

, 2083, 

(2013), “sentencing

decisions are anchored by the Guidelines.”

                                           A.

      Federal sentencing is an adversarial process, 

, 127 S.

Ct. at 2465, with the Government and the defendant engaged in “a confrontation

. . . similar to that which occurs at a civil bench trial,” United States v. Scroggins,

, 1209 (11th Cir. 1989). The presentence report (the “PSI”) serves

as the starting point for arriving at an appropriate sentence in the same way that a

pretrial stipulation serves as the starting point for arriving a judgment in a civil

case. The PSI identifies all applicable Guidelines and Sentencing Commission




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               Case: 11-13678        Date Filed: 08/12/2014       Page: 31 of 65


policy statements, calculates the defendant’s total offense level 7 and criminal

history, 8 states the resulting Guidelines sentencing range 9 and types of sentences

available, and identifies any factor relevant to the appropriate type or length of

sentence and any basis for departing from the Guidelines range. Fed. R. Crim. P.

32(d)(1). It also includes additional information such as a defendant’s history and

characteristics, as well as assessments of any financial, social, psychological, and

medical impact the defendant’s crimes had on the victims. Fed. R. Crim. P.

32(d)(2). The parties have an opportunity to object to the PSI. If objections are

made, the Probation Office takes them into account and revises the PSI to the

extent it deems necessary. Fed. R. Crim. P. 32(f). At least seven days prior to the

commencement of the sentencing proceeding, the Probation Office submits to the

parties and the court the final PSI, accompanied by an addendum listing the factual

issues, and thus the correct Guidelines calculation, to be resolved at sentencing.

Fed. R. Crim. P. 32(g).
       7
         The total offense level serves as a proxy for the need for a sentence “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense,” § 3553(a)(2)(A), as well as the need to “afford adequate deterrence to criminal
conduct,” § 3553(a)(2)(B), and the adjustments, which are not necessarily related to the
§ 3553(a)(2)(A)–(B) purposes.
       8
         The criminal history category serves as proxy for the need “to protect the public from
further crimes of the defendant.” § 3553(a)(2)(C). In other words, it is a proxy for recidivism.
Thus, a defendant with a criminal history category of I does not need to be incarcerated to protect
the public.
       9
         Based on a defendant’s offense level and criminal history category, the court calculates
a Guidelines range from the sentencing table. See U.S.S.G. Ch. 5, Pt. A. Each cell in the table
has a range of numbers, which corresponds to the upper and lower end of the recommended term
of imprisonment for the defendant, based on the total offense level and criminal history category.

                                                31
                Case: 11-13678     Date Filed: 08/12/2014      Page: 32 of 65


       In this case, the Probation Office prepared and submitted to the parties and

the District Court a PSI reciting the facts underpinning the offenses described in

Counts One and Two and setting out the appropriate sentencing options under the

Guidelines for those counts. The PSI calculated a total offense level of 33 and a

criminal history category of I and determined that the Guidelines prescribed prison

terms for Counts One and Two of the information ranging from 135 to 168

months,10 supervised release terms of two to three years, a fine of $17,500 to

$175,000, restitution to ADPE of $2.4 million, and forfeiture as indicated in the

plea agreement. Neither party objected to any of the PSI’s factual statements

describing the criminal activity or to the proceeds of that activity as depicted in the

information. Nor did either party object to the PSI’s sentencing options, including

its calculation of the range of imprisonment, 135 to 168 months. Nor did Hayes

object to the PSI’s requirement that he make restitution to the ADPE in the sum of

$2.4 million.




       10
           The maximum term of imprisonment provided by statute was ten years for Count One,
18 U.S.C. § 666(a)(2), and twenty years for Count Two, 18 U.S.C. § 1956(a)(1)(B), (h). “Where
the statutorily authorized maximum sentence is less than the minimum of the applicable
guideline range [as it was for Count One], the statutorily authorized maximum sentence [is] the
guideline sentence.” U.S. Sentencing Guidelines Manual § 5G1.1(a). The guideline range for
Count One thus became 120 months. Because the maximum sentence for Count Two exceeded
the 135 to 168 months range, the Count Two sentence could exceed the Count One sentence and
create a total prison term of ranging from 135 to 168 months.

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       Also prior to the sentencing hearing, the Government filed a Motion for

Downward Departure Pursuant to U.S.S.G. § 5K1.1, 11 which sought to have

Hayes’s sentence reduced based on his substantial assistance to the Government

during its investigation of the bribery scheme. In its motion, 12 the Government

urged the District Court, “[b]ased upon the defendant’s substantial assistance,” to

“depart from total offense level 33 to level 25, which results in an advisory

guideline range of 57–71 months,[13] and impose a sentence of imprisonment of 60

months.” Doc. 22, at 1. The motion did not explain how Hayes’s substantial

assistance could appropriately serve as the basis for lowering the total offense level


       11
            Section 5K1.1 of the U.S. Sentencing Guidelines provides:
       Upon motion of the government stating that the defendant has provided
       substantial assistance in the investigation or prosecution of another person who
       has committed an offense, the court may depart from the guidelines.

       (a) The appropriate reduction shall be determined by the court for reasons stated
       that may include, but are not limited to, consideration of the following:
       (1) the court’s evaluation of the significance and usefulness of the defendant’s
       assistance, taking into consideration the government’s evaluation of the assistance
       rendered;
       (2) the truthfulness, completeness, and reliability of any information or testimony
       provided by the defendant;
       (3) the nature and extent of the defendant’s assistance;
       (4) any injury suffered, or any danger or risk of injury to the defendant or his
       family resulting from his assistance;
       (5) the timeliness of the defendant’s assistance.
       12
       The Government filed the motion on May 9, 2011. It filed its Sentencing
Memorandum the same day and its Amended Sentencing Memorandum on May 10, 2011.
       13
          The Guidelines sentencing table indicates that an offense level of 33 and a criminal
history category of I (Hayes’s criminal history category) creates a sentence range of 135 to 168
months; an offense level of 25 and a criminal history category of I creates a sentence range of 57
to 71 months. U.S.S.G. Ch. 5, Pt. A.

                                                33
               Case: 11-13678        Date Filed: 08/12/2014       Page: 34 of 65


or Guidelines range of 135 to 168 months. It provided no explanation because a

legitimate explanation was not possible.

       Substantial assistance is wholly irrelevant in determining a total offense

level.14 And although the factors in § 5K1.1 are “not an exhaustive list,” courts are

“prohibited from considering sentencing factors unrelated to the nature and extent

of a defendant’s assistance in making § 5K1.1 departures.” United States v.

Martin, 

, 1235–36 (11th Cir. 2006). As such, a finding that the

defendant provided substantial assistance cannot change the calculation of the total

offense level or the “applicable Guidelines range” under Gall, because substantial

assistance is unrelated to the determination of that range. See 28 U.S.C. § 991(b);

28 U.S.C. § 994(c)–(d) (listing factors the U.S. Sentencing Commission must take

into account when creating offense levels—including “the grade of the offense,”

“the deterrent effect a particular sentence may have on the commission of the

offense by others,” and “the current incidence of the offense in the community and

in the Nation as a whole”—and the factors to be considered in creating criminal

history categories—including age, vocation and skills, community ties—but not

mentioning substantial assistance as a basis for either).



       14
          The total offense level considers “the seriousness of the average offense sentenced
under that particular guideline,” “various factors considered relevant to the defendant’s offense
conduct,” and “certain factors considered generally relevant for sentencing purposes.”

.

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          In urging the court to create an arbitrary Guidelines range based on the

§ 5K1.1 factors, the Government invited the court to commit “procedural error.”

See 

, 128 S. Ct. at 597 (describing significant procedural

errors, including “failing to calculate (or improperly calculating) the Guidelines

range”). This type of procedural error would normally be a ground for vacting the

sentence and remanding the case for resentencing. See, e.g., United States v.

Gupta, 

, 890–92 (11th Cir. 2009) (vacating and remanding a

defendant’s sentence after the district court improperly calculated the total offense

level).

          Along with its motion, the Government filed a memorandum recommending

that Hayes be sentenced to 60 months’ imprisonment. The memorandum stated:

          In accordance with the written plea agreement, the Government must
          recommend a sentence that departs below the low end of the
          Guidelines range determined by the Court at sentencing if Defendant
          provided substantial assistance. As explained below, the Government
          believes the Guidelines range is correctly calculated in the [PSI] as
          135–168 months. Based on the Defendant’s substantial assistance,
          and in light of the sentencing factors set for the in 18 U.S.C.
          § 3553(a), the Government believes a sentence of 60 months is
          reasonable.

Doc. 24, at 2. After reiterating that “the correct Guidelines range is 135–168

months,” the Government stated that it “believe[d Hayes’s] assistance warrants a

downward departure from this Guidelines range to a sentence of 60 months.” Doc.

24, at 3. The memorandum proceeded to describe the § 3553(a) sentencing factors


                                            35
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in general terms, and assured the court that a 60-month sentence was consistent

with those factors. The Government did not reference the Guidelines range again,

nor did it explain why a sentence that was more than 50 percent lower than the low

end of that range comported with the § 3553(a) factors. The Government’s

memorandum made no reference to creating a substitute offense level or

Guidelines range based on Hayes’s substantial assistance. 15


       15
          A close reading of the Government’s § 5K1.1 motion and its Sentencing Memorandum
together presents contradictory propositions that are difficult, if not impossible, to reconcile and
applies § 5K1.1 in an unlawful manner. I start with the Memorandum because its service was to
support the motion.
        The Memorandum does not explain how a sentence of 60 months would accomplish the
purposes set out in § 3553(a)(1)(A) and (B), to provide just punishment and deter others from
committing the public corruption crimes Hayes committed. Were the Government now to
explain how sentences of 60 months would satisfy these (A) and (B) purposes, I suppose that it
would point to our precedent which requires a court to take the Guidelines range (135 to 168
months) and the § 3553(a)(A) and (B) factors (that created that range) into account after it
tentatively decides the credit it will give the defendant for his § 5K1.1 assistance. See, e.g.,
United States v. McVay, 

, 1356 (11th Cir. 2006) (“[A]fter it has decided the length
of departure warranted by the substantial assistance motion, the district court is then obliged to
take into account the advisory Guidelines range and the sentencing factors set forth in 18 U.S.C.
§ 3553(a) in fashioning a reasonable sentence.”). Then, having taken the Guidelines range and
the § 3553(a) factors into account, the Government would say that a § 5K1.1 departure of 75
months from the low end of the Guidelines range to a sentence of 60 months would not frustrate
the sentencing goals reflected in the 135- to 168-month range. Those goals would still be met.
       However, the position the Government took in its § 5K1.1 motion suggested that a 75-
month departure from the Guidelines range of 135 to 168 months would frustrate those goals.
The Government apparently thought that this frustration could be avoided if the District Court
lowered the Guidelines range—and thus reconsidered the sentencing goals of the 135- to 168-
month range—so that a sentence of 60 months would be an inside-Guidelines sentence. An
inside-Guidelines sentence would not likely engender the public criticism a 75-month departure
would produce. The Government’s motion therefore recommended that, “based on the
defendant’s substantial assistance,” the District Court depart from the Guidelines range of 135 to
168 months to a Guidelines range of 57 to 71 months, then impose a sentence of 60 months
imprisonment—a sentence within the Guidelines range.



                                                36
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      The Government’s § 5K1.1 motion and its Sentencing Memorandum

presented the District Court with two contradictory propositions. A 75-month

departure from the Guideline range of 135 to 168 months to a sentence of 60

months would not be substantively unreasonable because it would not

impermissibly frustrate the sentencing goals of § 3553(a)(2)(A) and (B). At the

same time, a 75-month departure from that range would be substantively

unreasonable (which is why the § 5K1.1 motion asked the court to establish a new

Guidelines range of 57 to 71 months).

      To avoid this dilemma, the Government recommended in its § 5K1.1 motion

that, based on the defendant’s substantial assistance, the District Court find a

substitute offense level and Guidelines range—level 25 with a Guidelines range of

57 to 71 months—within which a sentence of 60 months could be imposed. But,

as I have already explained, the court could not give effect to this Guidelines range

recommendation because the law precluded it from doing so.

                                          B.

                                          1.

      Hayes’s sentencing proceeding commenced on June 8, 2011. The District

Court began the proceeding, as Gall instructs, by determining the applicable

Guidelines range. After hearing no objections, adopted the PSI’s statements of fact

and sentencing options. The court made specific findings that “the guidelines


                                          37
             Case: 11-13678      Date Filed: 08/12/2014    Page: 38 of 65


offense level is 33. The criminal history category is I. And the advisory guideline

imprisonment range is from 135 months to 168 months.” Doc. 28, at 4. The 135-

to 168-month range of imprisonment then became the “applicable Guidelines

range,” 

, 128 S. Ct. at 596, which “anchor[s] . . . the district

court’s discretion” in imposing a final sentence, Peugh, ___ U.S. at ___, 133 S. Ct.

at 2087.

                                           2.

      After fixing the applicable Guidelines range at 135 to 168 months, the court

proceeded to Gall’s second step: “giving both parties an opportunity to argue for

whatever sentence they deem appropriate.” 552 U.S. at 

. The

court began by taking up the Government’s § 5K1.1 motion. When the court asked

the Government’s attorney, George Martin, to speak about his § 5K1.1 motion, he

responded, “Judge, I have set out the defendant’s cooperation in the motion. I

won’t belabor those points. . . . [W]e would ask the Court to grant [the § 5K1.1]

motion and sentence the defendant below the guideline range to a term of

imprisonment of 60 months.” Doc. 28, at 7 (emphasis added). In so requesting,

Martin appears to have recognized that 135 to 168 months remained the applicable

Guidelines range. At this point, he made no reference to the fact that his § 5K1.1

motion urged the court to create a new Guidelines range of 57 to 71 months.




                                           38
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     After a brief discussion regarding restitution, the court returned to the

§ 5K1.1 motion:

     THE COURT: The advisory guideline imprisonment range, as I
     previously stated, is between 135 months and 168 months. And the
     government is asking me based on substantial assistance to impose a
     sentence of 60 months. Correct; Mr. Martin?

     MR. MARTIN: Based both on his substantial assistance and the [18
     U.S.C. §] 3553(a) [sentencing] factors.

     THE COURT: I’m not supposed to mix those, am I, Mr. Martin?

     MR. MARTIN: My recommendation of 60 months is based both on
     substantial assistance and a consideration of those factors, from my
     perspective. That is, considering the crimes that he committed on one
     hand and the other factors and, on the other hand, the assistance he
     gave to the government, we recommend and we think a reasonable
     sentence is 60 months under the totality of the circumstances.

     THE COURT: Well, appropriately in your motion, . . . you don’t list
     any [§] 3553(a) factors. You only list [§] 5K1.1 factors. And it is my
     belief that it is inappropriate for me to consider an amount by which
     to downwardly depart based on substantial assistance any factors
     other than substantial assistance, including the government’s
     evaluation of the value of that substantial assistance. . . . I’m certain
     there’s binding Eleventh Circuit case law to that effect.

     MR. MARTIN: Your honor—
     THE COURT: I understand that your [§ 5K1.1] motion is different
     from your sentencing memorandum. You’re just asking me in your
     sentencing memorandum not to vary below what you asked me to do
     on your 5K.

     MR. MARTIN: What I did is instead of filing one thing that asked
     the Court to sentence him to the low end of the guidelines and on the
     other had filing a document at the same time asking that you sentence
     him way below the bottom end of the guidelines, I filed documents as
     a complete package setting forth our recommendation . . . and our
     reasoning for that recommendation, including both the [§] 3553(a)
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      factors and the defendant’s substantial assistance. In the sentencing
      memorandum, I make it clear that our 60-month recommendation is
      based on both of those things.
      THE COURT: You do in your memorandum. I totally agree. Do you
      agree with me that the binding case law in the Eleventh Circuit is that
      in ruling on a motion for downward departure pursuant to [§] 5K1.1, it
      is error for a district court to consider anything other than the
      substantial assistance?
      MR. MARTIN: Yes, Your Honor, I do.

Doc. 28, at 16–18 (emphasis added).

      Although this colloquy between the court and Martin is somewhat

convoluted, it is clear that in filing what he called “a complete package,” Martin

was providing the District Court with two alternative ways in which to give Hayes

appropriate credit for his cooperation with the Government. The court could

sentence Hayes “to the low end of the guidelines” or it could sentence him “way

below the bottom end of the guidelines.” The first alternative would require the

court to lower the Guidelines range to 57 to 71 months and sentence Hayes to the

low end of that range, 60 months. The second alternative would require the court

to adhere to the applicable Guidelines range, 135 to 168 months, and sentence

Hayes “way below the bottom end of the guidelines” to 60 months. The colloquy

also demonstrates that the court and Martin both recognized that a defendant’s

substantial assistance is not relevant in deciding the need for a sentence to satisfy

§ 3553(a)(2)’s sentencing objectives, i.e., the defendant’s substantial assistance

cannot influence the offense level and the applicable Guidelines range. Rather, the
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nature and circumstances of the offense and the need for the sentence to attain

§ 3553(a)(2)’s objectives determine the offense level and Guidelines range. See 28

U.S.C. § 994(a). Thus, in asking Hayes’s attorney, Derek Drennan, to comment on

the Government’s § 5K1.1 motion, the court instructed him “to speak only to the

issue of substantial assistance because it would be error for [the court] to consider

any other factor” in ruling on the motion. Doc. 28, at 18.

      Drennan asked the court to grant the Government’s motion for the reasons

stated in his Sentencing Memorandum. The court granted the motion, then asked

Drennan, “[a]re you asking for a level of departure, or are you just asking that it be

granted? Because it asks me to depart to 60 months.” 

Drennan

replied, “Yes. That is correct.” 

Next, the court asked Drennan whether

he thought 60 months’ imprisonment reflected the value of Hayes’s assistance. He

responded, “[C]ertainly not. I don’t know that I have—can take a position as to the

government’s motion.” 

referring to the second of the two alternative ways Martin

proposed for granting a § 5K1.1 departure, informed Drennan that “for the

government to request a departure that’s greater than 50 percent is unusual, to say

the least, in my experience. As a percentage, they’ve asked me to depart down a




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lot more than I’m accustomed to seeing.” Doc. 28, at 19–20.16 As it turned out,

the court did not depart from the applicable Guidelines range, 135 to 168 months.

Instead, it adopted to Martin’s first alternative and created a brand-new offense

level and arbitrary Guidelines range. In granting the Government’s § 5K1.1

motion, the court explained:

       [I]t comes down to my opinion as to the appropriate amount of a
       departure. And I have the government’s recommendation. And they
       do it by months or range when they – although they come up with an
       offense level. That’s certainly not required. What they do is they
       come up with a number of months, which 60 months is actually five
       years, but it’s all done in months. But that’s helpful because it also
       may impact the fine. To have an offense level is helpful.

       All right. Backing up, the Court finds that the government’s motion
       for a downward departure pursuant to [§] 5K1.1 based on the
       defendant’s substantial assistance to the government should be
       granted. The Court finds that the appropriate . . . guideline level for
       consideration should be Level 22, which when combined with the
       criminal history category of I creates an advisory guideline range of
       41 to 51 months and a fine range from $7,500 to $75,000.[17] And the
       supervised release term remains from two to three years.
       In departing based on the government’s 5K motion, I discussed with
       and evaluated the significance and usefulness of the defendant’s
       assistance. And I discussed this both with the government and the
       defendant. And I considered both their writings and their statements
       here in court. And I specifically considered the government’s
       evaluation of the assistance rendered.


       16
          Sixty months would be greater than a 50-percent departure from the applicable
Guidelines range, 135 to 168 months, but not a departure at all from the 57- to 71-month range.
       17
         The District Court was incorrect to state that the new offense level would help with the
fine. The fine remained tied to the original Guidelines range of 135 to 168 months and could not
be reduced to the $7,500 to $75,000 range based on substantial assistance.

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      And I’ve talked about giving more weight versus less weight and how
      I agree with the government in giving more weight. It’s just that I am
      giving even more weight than the government gave on all these
      factors. And I’ve already said that a request for a departure that’s
      below 50 percent is unusual in my experience—my seven years[’]
      experience.

      I considered the truthfulness, the completeness and the reliability of
      the information and testimony provided by the defendant. I
      considered the nature and extent of the defendant’s assistance and this
      includes the fact that he identified a totally new target, Mr. Phillip
      Grace. He testified at least twice. The number of people who were
      convicted or pled guilty at least in part because of his testimony or
      willingness to testify and the number of hours he participated in
      meetings. The number of times he met with the government. His
      willingness to testify against targets of a state prosecution.
Doc. 28, at 24–26 (emphasis added).

      As is apparent, the District Court’s creation of a new offense level and

applicable Guideline range was based solely on Hayes’s substantial assistance, but

the court did not explain how that assistance warranted the new range, a new

“starting point and . . . initial benchmark” for fashioning Hayes’s sentence. See

Gall, 522 U.S. at 

. The Government did not object to the

District Court’s creating a new offense level and applicable Guidelines range

because its § 5K1.1 motion had induced the court to do precisely that. With a new

Guidelines range, 41 to 51 months, the court, at the Government’s behest,

abandoned the “applicable Guidelines range,” 

supposed to “anchor

. . . the district court’s discretion” in selecting a final sentence, Peugh, ___ U.S. at

___, 133 S. Ct. at 2087.

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                                                  3.

       The third and final step of the sentencing process prescribed by Gall

required the District Court to “consider all of the § 3553(a) factors to determine

whether they support the sentence requested by a party.” 18 

–

. “[D]istrict courts must begin their analysis with the

Guidelines and remain cognizant of them throughout the sentencing process.” 

n.6. In considering these § 3553(a) factors, the court

may conclude that there are other characteristics of the crime, the defendant, or the

victims that are not accounted for by the Guidelines—that take the case out of the

“heartland” of cases the Sentencing Commission drew on in prescribing the

applicable Guidelines range. 19 In that situation, the court can impose a sentence

outside of the Guidelines framework—in Guidelines parlance, a “variance.”

U.S.S.G. § 1B1.1, background.

       However, if the court wishes to sentence the defendant outside the

applicable advisory Guidelines range, whether via departure or variance, it “must

consider the extent of the deviation [from the Guidelines range] and ensure that the

justification is sufficiently compelling to support the degree of the variance. . . .

       18
         In practice, this step requires the parties to justify their proposed sentences in light of
§ 3553(a). When it comes time to impose a final sentence, however, the judge is required to
show how the sentence is consistent with the § 3553(a) factors.
       19
          “The [Sentencing] Commission intends sentencing courts as to treat each guideline as
carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline
describes.” U.S.S.G. Ch. 1 Pt. A, introductory cmt. 4(b).

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[A] major departure should be supported by a more significant justification than a

minor one.” 

, 128 S. Ct. at 597. 20 “Even if the sentencing

judge sees a reason to vary from the Guidelines, if the judge uses the sentencing

range as the beginning point to explain the decision to deviate from it, then the

Guidelines are in a real sense the basis for the sentence.” Peugh, ___ U.S. at ___,

133 S. Ct. at 2083 (emphasis added) (internal quotation marks omitted).

       In this case, the District Court should have begun with the admittedly correct

Guidelines range, 135 to 168 months, and then, with that range in mind, considered

whether the § 3553(a)(2)(A) and (B) sentencing objectives could accommodate the

parties’ requested sentences. Instead, the court adopted the Government’s first

alternative suggestion; it used an arbitrary Guidelines range and considered the

parties’ sentencing recommendations against that range. When the sentencing

hearing resumed on July 13, 2011,21 the court adhered to that approach, but, as the

hearing unfolded, it did not adopt the Government’s recommendation to impose a

sentence within the 57- to 71-month range.

       The court began by reminding the parties that



       20
         In Gall, the Supreme Court did not distinguish between variances and departures,
which leads me to believe it was using the terms as synonyms. See Thomas W. Hutchison, et al.,
Federal Sentencing Law and Practice § 11.5 (2014 ed.) (reaching the same conclusion).
       21
           The June 8 hearing was continued until an issue regarding restitution could be resolved.
At the July hearing, Martin announced that he and Drennan agreed that Hayes would pay
restitution in the sum of $628,454.28.

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      in granting the motion for a downward departure pursuant to
      [§] 5K1.1 based on the defendant’s substantial assistance to the
      government, I found that the appropriate guideline level for
      consideration should be Level 22, which when combined with a
      criminal history category I creates an advisory guideline range of 41
      months to 51 months and a fine range from $7,500 to $75,000 and a
      supervised release term of two to three years.

Doc. 29, at 10 (emphasis added). This statement confirmed that the court’s factual

basis for creating the new Guidelines range was limited to Hayes’s substantial

assistance. The Government did not object to the court’s adoption of the 41- to 51-

month range, even though it had no legal foundation, because the Government had

urged the court to adopt a new Guidelines range in the first place.

      Having established 41 to 51 months as the “starting point and the initial

benchmark” for determining the defendant’s sentence, see Gall, 522 U.S. at 

, the court invited Drennan to discuss whether it should vary

downward from that range. Drennan began by discussing the § 3553(a)(2)(A)

factor, urging the court to consider that the colleges that bought Access’s software

were still using it, and thus had sustained no loss, and the relative culpability of

Hayes and Johnson, who instigated the criminal conduct. He then turned to the

§ 3553(a)(2)(C)–(D) factors, highlighting that Hayes had been the main caretaker

of his elderly father and mentally disabled brother, both since deceased, after the

prior caretaker, Hayes’s sister, was killed in a tornado that struck their residence;

that Hayes was in poor health and nearly seventy; and that Hayes was not a risk to


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society and thus did not need rehabilitation. Hayes followed Drennan, apologized

for participating in the bribery scheme, promised to satisfy his restitution and

forfeiture obligations, and vowed to rehabilitate himself. These factors, which

were unrelated to Hayes’s substantial assistance, were appropriate for the court to

consider when determining whether to grant a variance.

       Martin spoke next and argued that “[t]he Court’s sentence should be one that

punishes the defendant for this conduct. And it should be a sentence that deters

others from engaging in such conduct.” Doc. 29, at 17–18. He concluded his

argument by stating,

       [A]s I stated at the first part of this sentencing hearing held last month,
       the government, based on all the factors, believed that a sentence of
       60 months was a reasonable sentence. That is over 50 percent below
       the low end of the guideline range. And nothing has changed that
       since then to warrant a different recommendation. It was reasonable
       then. It’s reasonable now.

       Turning to Martin’s argument that the defendant’s sentence should reflect

the need for punishment and deterrence, the court said,

       I don’t have any issues with your arguments that the defendant needs
       to be punished. And I don’t have any issues with the government’s
       arguments that people need to be deterred from committing white
       collar crimes and that sending them to jail is a strong deterrent to
       others and punishment to the person being sentenced.

       What I don’t have and I didn’t ask for it, but maybe probation has, is
       because I do think one of the very, very significant things to consider
       in sentencing—all the [§] 3553(a) factors are important. And I feel

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       like I have good information on all of the factors except the one about
       unwarranted sentence disparities among defendants.

       The court then asked the probation officer, who was attending the hearing,

about the sentences imposed on others member of the bribery scheme who had

been convicted and sentenced. After she directed the court to the relevant portion

of the PSI, which listed the sentences these other participants received, the court

read into the record the sentence imposed in twelve of the cases, noting that five

were probation and three were greater than 60 months’ imprisonment. The

probation officer then directed the judge to a chart, which was not included in the

PSI and which provided more information about those sentences. The chart listed

two additional participants in the scheme, both of whom were sentenced to

probation, as well as information for all fourteen participants regarding the crimes

with which they were charged, the amount of loss attributed to each, the advisory

Guidelines range in each case, and whether they pled guilty or were convicted.

       After stating that the sentences the other participants received were relevant

to § 3553(a)(6)’s command to avoid unwarranted sentence disparity, the court

turned to the § 3553(a)(1) and (2)(A) and (B) factors: “the nature and

circumstances of the offense,” “this defendant’s history and characteristics,” the

need for “a sentence [that] promote[s] respect for the law and provide[s] just

punishment for the offense,” “the need to afford adequate deterrence to criminal

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conduct by others,” and the need for “punishment that would deter other people

who might consider similar conduct from committing that conduct.” Doc. 29, at

29–30. Regarding the § 3553(a)(2)(C) factor, the need for a sentence to deter the

defendant from committing further crime, the court found that “this defendant does

not pose any risk of further crimes to the public.” Doc. 29, at 30. After

commenting on these § 3553(a) factors, the court returned to “the need to avoid

unwarranted sentence disparities among similarly situated defendant” but said, “I

don’t want anybody to think that that was . . . the overwhelming factor.” Doc. 29,

at 31–32.

       Having considered the § 3553(a) factors, the court granted Hayes a

downward variance from the 41- to 51-month Guidelines range and sentenced him

to probation for a term of 36 months, with not less than 6 nor more than 12 months

home supervision. 22 The court found that “the sentence imposed is sufficient, but

not greater than necessary to comply with the statutory purposes of sentencing and

is reasonable when considering the sentencing factors found at 18 U.S.C. Section

3553(a).” Doc. 29, at 33.

                                              C.

       To summarize, the parties began the sentencing process by stipulating to the

PSI’s finding that the appropriate offense level in this case was 33 and that the
       22
         The court ordered Hayes to pay $628,454.28 with interest in restitution to the ADPE,
payable immediately, and criminal forfeiture as to Count Three.

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criminal history category was I. They agreed that the correct and therefore

applicable Guidelines range was 135 to 168 months. The District Court accepted

the PSI factual findings and Guidelines applications. In doing so, the court

adhered to the Supreme Court’s instructions in Gall—that the first step in

sentencing is to determine the applicable Guidelines range.

      Then, the Government presented the court with two alternative approaches

to use in determining Hayes’s sentence, both based on his substantial assistance.

First, it could lower the offense level from 33 to 25, adopt a new Guidelines range

of 57 to 71 months, and impose a sentence within that range, 60 months. Or it

could depart from the applicable Guidelines range, 135 to 168 months, and impose

a sentence of 60 months. The court adopted the Government’s first approach but

lowered the offense level to 22 and the applicable Guidelines range to 41 to 51

months. In doing this, the court committed procedural error. See 

, 128 S. Ct. at 597. The court then compounded the error by treating the 41 to

51 months range as if it were based on the facts of the case and, after considering

§ 3553(a)(2)(C) and (D)’s sentencing factors, concluding that a downward variance

to a sentence of probation was warranted.

                                         III.

      After the District Court pronounced sentence, the Government objected “to

the procedural reasonableness of the sentence and to the substantive


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reasonableness of the sentence, including the extent of [the] Court’s downward

departure pursuant to 5K and the reasonableness of the Court’s final sentence.”

Doc. 29, at 35. On appeal, however, the Government reframes its objection. It

abandons the procedural-reasonableness objection and “does not challenge the

district court’s § 5K1.1 downward departure to a Guidelines range of 41-51

months.” Appellant’s Br. at 11 n.3. It does so even though that Guidelines range is

purely arbitrary and therefore erroneous. The Government then limits it challenge

to the substantive reasonableness of the sentence on the ground that the downward

variance from the 41- to 51-month range to a sentence of probation fails to reflect

the seriousness of Hayes’s crime, does not adequately deter the general public from

engaging in such crime, and is not justified by the need to avoid unwarranted

sentencing disparities. 23




       23
          The Government’s appeal is authorized by 18 U.S.C. § 3742(b). That section provides
as follows:
       (b) Appeal by the Government.--The Government may file a notice of appeal in
       the district court for review of an otherwise final sentence if the sentence--
       (1) was imposed in violation of law;
       (2) was imposed as a result of an incorrect application of the sentencing
       guidelines;
       (3) is less than the sentence specified in the applicable guideline range to the
       extent that the sentence includes a lesser fine or term of imprisonment, probation,
       or supervised release than the minimum established in the guideline range, or
       includes a less limiting condition of probation or supervised release under section
       3563(b)(6) or (b)(11) than the minimum established in the guideline range; or
       (4) was imposed for an offense for which there is no sentencing guideline and is
       plainly unreasonable.


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       As it did in the District Court, the Government invites us to disregard the

Supreme Court’s instructions on the sequential steps a district court is to take in

imposing a sentence under the Guidelines and the sequential steps a court of

appeals is to take in reviewing the sentence. By framing its appeal as a challenge

solely to the substantive reasonableness of Hayes’s sentence, the Government asks

that we disregard Gall’s instruction that a court of appeals may not assess the

substantive reasonableness of a sentence unless it first concludes that the sentence

is procedurally reasonable. See 552 U.S. at 

. The

Government ignores the fact that even though it does not challenge the procedure

by which Hayes was sentenced, the Supreme Court requires that we must satisfy

ourselves that no procedural error occurred.




       The Government may not further prosecute such appeal without the personal
       approval of the Attorney General, the Solicitor General, or a deputy solicitor
       general designated by the Solicitor General.
§ 3742(b) (emphasis added). The Government’s brief does not indicate which of the four
grounds for appeal it is relying on here. The objection the Government voiced following the
District Court’s imposition of sentence implied that it would appeal Hayes’s sentence on ground
(2), because, as I explain, procedural error is manifestly present. Ground (4) is clearly
inapplicable, and from a reading of its brief, I conclude that it is not relying on ground (1). That
leaves ground (3).
        Ground (3) implies that the district court properly applied the Guidelines, and thus
arrived at the appropriate applicable Guidelines range. The Government’s position is that the
District Court properly applied the Guidelines and correctly arrived at the applicable Guidelines
range. So, to maintain this appeal, the Government must establish that Hayes’s sentence of
probation is a “lesser term of imprisonment . . . than the minimum established by the guideline
range.” Hayes has not raised the question of whether a sentence of probation is a term of
imprisonment; neither has this panel. Consequently, I do not address it.

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       It is obvious to me that procedural error did occur. The District Court used

an arbitrary Guidelines range as its Gall “starting point and . . . initial benchmark”

in arriving at Hayes’s sentence. See id. at 

. Therefore, we

may not review the substantive reasonableness of his sentence. Instead, we must

vacate the sentence and remand the case for resentencing under the applicable

Guidelines range, 135 to 168 months. The invited error doctrine precludes us from

doing this, however, because the Government induced the error the District Court

committed.

                                               A.

       As the Supreme Court has instructed, a court of appeals’ review of a

criminal sentence is a two-step process. First it must “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 mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” 

, 128 S. Ct. at 597. 24 Only then, after the court of appeals is certain that

that no significant procedural error has occurred, can it turn to the substantive

reasonableness of the sentence. 

the substantive reasonableness inquiry


       24
           We assume that the Gall Court, in using the term “significant procedural error,” meant
error that materially affected the defendant’s sentence. The procedural error I refer to in this
opinion is significant and thus material.

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“[a]ssum[es] that the district court’s sentencing decision is procedurally sound.”

sentencing decision is not procedurally sound, it cannot be reviewed for

substantive unreasonableness. 25

       We have recognized as much. For instance, in United States v. Barner, 

(11th Cir. 2009), we declined to discuss the substantive reasonableness

of a sentence “because such an exercise cannot be undertaken until [the procedural]

errors we have identified are addressed by the district court.” 

(citing

, 128 S. Ct. at 597). Cf. 

(“Because we

conclude that a remand is necessary to correct procedural errors, we decline to

evaluate the substantive reasonableness of Gupta’s sentence. We do not know

what sentence the district court will impose on remand. Thus, we would be

rendering an advisory opinion if we were to pick a sentence and declare it to be




       25
          The majority justifies its decision not assess the procedural reasonableness of Hayes’s
sentence—and to limit its review to the substantive reasonableness of the sentence—based in
part on settled Eleventh Circuit precedent that “we do not have a duty to raise and decide
issues—even constitutional ones—not mentioned by the parties.” Maj. Op. at 22. If this were an
ordinary appeal, I would agree that the court should invoke that doctrine. But this is not an
ordinary appeal.
        Just as a sentencing court is not bound by the parties’ framing of the Guidelines range in
a plea bargain or at sentencing because the court “has an independent obligation to calculate
correctly the sentencing range prescribed by the Guidelines,” United States v. Aguilar-Ibarra,

, 591 (11th Cir. 2014) (internal quotation marks omitted), a court of appeals
cannot—consistent with Gall—engage in substantive review without first ensuring the sentence
is procedurally reasonable.

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reasonable.” (citation omitted) (internal quotation marks omitted)). 26 Other circuits

follow a similar approach. See, e.g., United States v. Carter, 

, 330 n.4

(4th Cir. 2009) (“Having found the sentence procedurally unreasonable . . . we

cannot review the sentence for substantive reasonableness.”); United States v.

Stephens, 

, 465 (6th Cir. 2008) (“If, and only if, the district court’s

sentencing decision is procedurally sound, we will then consider the substantive

reasonableness of the sentence imposed . . . .”) (internal quotation mark omitted));

United States v. Langford, 

, 218 (3d Cir. 2008) (“[T]he failure to start

with the correct Guideline range is legal error that thwarts reasonableness review—

that is, it cuts off our review process before we even reach the issue of

reasonableness.”).27

       It is only after the court of appeals is satisfied the district court correctly

calculated the Guidelines range and did not otherwise commit procedural error that

it can “consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” 

, 128 S. Ct. at 597. The court

of appeals needs an accurate Guidelines range because “[w]hen conducting this

review, the court will, of course, take into account the totality of the circumstances,

       26
          Declaring that a sentence is substantively unreasonable after finding significant
procedural error is to render an advisory opinion because the district court, on remand will be
resentencing the defendant under a new Guidelines range, a new benchmark.
       27
          That the cases cited above included challenges to both the procedural and substantive
reasonableness of the sentence does not undermine the broader logic in each case that
substantive-reasonableness analysis is impossible without procedural reasonableness.

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including the extent of any variance from the Guidelines range.” 

If the district court imposes a sentence below the applicable Guidelines

range, the reviewing court “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 district court’s weighing of the § 3553(a) factors, the

reviewing court is “obliged to remand for resentencing if [it is] left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Pugh, 

, 1191 (11th Cir. 2008) (internal quotation marks

omitted); see also United States v. Irey, 

, 1189 (11th Cir. 2010) (en

banc).

                                           B.

         The District Court in this case committed clear procedural error by lowering

the Guidelines range to 41 to 51 months based on Hayes’s cooperation with the

Government. Congress precluded the Sentencing Commission—in prescribing, in

conformance with 28 U.S.C. § 994, the offense level for Hayes’s offenses—and

the District Court—in determining, in conformance with § 3553(a)(2)(A) and (B),

the need for Hayes’s sentence to satisfy the sentencing objectives of punishment

and general deterrence—from considering substantial assistance provided to the


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Government. Because the District Court lowered Hayes’s offense level based on

substantial assistance alone, it created a Guidelines range, 41 to 51 months, that

lacked a legal foundation and was therefore arbitrary. The Government did not

object because it encouraged the court to do this; after all, the Guidelines range it

wanted the court to adopt, 57 to 71 months, was just as lacking in a legal

foundation as the one the court ultimately chose. In asking this court to assess the

substantive reasonableness of Hayes’s sentence, the Government is asking this

court to review a sentence imposed without reference to the Guidelines. Reference

to the applicable Guidelines range is unnecessary, the Government implies,

because anyone with a conscience would know that a sentence of probation for the

widespread bribery that occurred in this case in would be preposterous.

      We cannot accept the Government’s request and at the same time obey the

Supreme Court’s mandate in Gall. Gall precludes us from reviewing the

substantive reasonableness of a sentence imposed without reference to the

applicable Guidelines range. A sentence imposed without reference to that range is

procedurally unreasonable. And a finding of procedural reasonableness is a

necessary antecedent to substantive reasonableness. See Gall 552 U.S. at 

; 

.

      This, of course, makes sense. If a district court imposes sentence without

reference to a properly calculated Guidelines range, we lack an accurate


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benchmark from which to evaluate its substantive reasonableness. “[S]entencing

decisions are anchored by the Guidelines and . . . they remain a meaningful

benchmark through the process of appellate review.” Peugh, ___ U.S. at ___, 133

S. Ct. at 2083; see also 

n.6, 

n.6 (“The fact that

§ 3553(a) explicitly directs sentencing courts to consider the Guidelines supports

the premise that district courts must begin their analysis with the Guidelines and

remain cognizant of them throughout the sentencing process.”). As Gall directs,

the substantive-reasonableness analysis must “take into account the totality of the

circumstances, including the extent of any variance from the Guidelines range.”

, 128 S. Ct. at 597 (emphasis added). As such, we should

consider the substantive reasonableness of a sentence only “after [we have]

determined that the district court’s sentencing decision is procedurally sound.”

(internal quotation marks omitted) (emphasis added). It is

for this reason that this court and other courts of appeals will not evaluate the

substantive reasonableness of a sentence in the face of significant procedural error.

See, e.g., 

; United States v. Carter, 

, 330 n.4

(4th Cir. 2009); United States v. Stephens, 

, 465 (6th Cir. 2008);

United States v. Langford, 

, 218 (3d Cir. 2008).

      In the face of “significant procedural error,” 

, 128 S. Ct.

at 597, such as occurred here in the District Court’s use of an arbitrary Guidelines


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range, our normal response would be to vacate the sentence and remand the case

for further proceedings. However, the invited error doctrine precludes us from

doing that.

                                         C.

      In moving the District Court to decrease Hayes’s offense level from 33 to 25

and to adopt a Guidelines range of 57 to 71 months based solely on an irrelevant

criterion, substantial assistance, the Government brought the District Court’s

procedural error on itself. To be sure, the range the court eventually chose wasn’t

the one the Government proposed, but it was just as inappropriate as the

Government’s. Both ranges reflected an intuitive reaction to Hayes’s cooperation;

the District Court simply thought his cooperation was deserving of a bit more grace

than the Government recommended. In the end, the Government accepts the

court’s range without qualification. Appellant’s Br. at 11 n.3 (“The government

calculates the size of the variance as 41 months because it does not challenge the

district court’s § 5K1.1 downward departure to a Guidelines range of 41 to 51

months.”). And today, this court does as well.

      In inviting the District Court to accept 41 to 51 months as the applicable

Guidelines range, the Government also invited the District Court to depart or vary

downward from that range for reasons unrelated to § 5K1.1 substantial assistance.

The court could do this based on evidence indicating that a sentence in the 41 to 51


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months range was not needed to satisfy § 3553(a)(2)(A) and (B)’s purposes of

punishment and general deterrence.28 At the end of the day, the court accepted the

Government’s invitation and imposed a sentence of probation.

       Although Hayes’s sentence is the product of procedural error that is plain on

its face, we are not at liberty to correct the error. As we have explained countless

times before, “[i]t is a cardinal rule of appellate review that a party may not

challenge as error a ruling . . . invited by that party. The doctrine of invited error is

implicated when a party induces or invites the district court into making an error.”

United States v. Love, 

, 1157 (11th Cir. 2006) (citations omitted)

(internal quotation marks omitted); see also United States v. Silvestri, 

, 1327 (11th Cir. 2005); Ford ex rel. Estate of Ford v. Garcia, 

,

1294 (11th Cir. 2002). The doctrine of invited error “stems from the common

sense view that where a party invites the trial court to commit error, he cannot later

cry foul on appeal.” United States v. Brannan, 

, 1306 (11th Cir.

2009).



       28
          The problem the court would face, though, is that the 41 to 51 months range does not
represent the facts and circumstances surrounding Hayes’s commission of the bribery in this
case. Offense level 22, which drives the 41 to 51 months range, assumes that Hayes’s profits and
the victims’ losses were between $10,000 and $30,000. See U.S.S.G. § 2B1.1(b)(1)(C). It is a
false assumption, however, because the facts are that Hayes’s profits were $5 million and the
victims lost $2.4 million. According to the Sentencing Commission, these facts, which the
parties and the District Court accepted as true, revealed that a sentence in the range of 135 to 168
months, based on an offense level of 33, was necessary in order to satisfy § 3553(a)(2)(A) and
(B)’s sentencing objectives.

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       In the mine-run appeal, we would vacate the sentence and remand the case

to the district court for resentencing. Here, we would instruct the court to follow

Gall’s instruction and, in determining the extent of the § 5K1.1 departure from the

applicable Guidelines range, 135 to 168 months, “consider all of the § 3553(a)

factors to determine whether they support the sentence 

–

. 29 In this case, however, we cannot remedy the procedural

error because it was invited by the party seeking to challenge the sentence, the

Government.

       I say that the invited error doctrine applies even in a case where the

defendant’s sentence is as absurd as the one here. The majority vacates the

sentence in this case because the facts and circumstances surrounding the

commission of Hayes’s crime demand a sentence far more serious than the one he

received. Over a period of four years, Hayes’s bribes netted him over $5 million in

profits and caused the victims to suffer losses of $2.4 million. To the citizens of

Alabama aware of the magnitude of Hayes’s crime, a sentence of probation is

outlandish, a mere slap on the wrist.

       Applying the invited error doctrine and allowing Hayes’s sentence of

probation to stand would breed disrespect for the rule of law in many quarters.

Disrespect for the rule of law and the damage to the body politic that portends
       29
           The same instruction would govern the court’s consideration of a party’s request for a
variance from the applicable Guidelines range.

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weigh heavily on one side of the scales of justice. However, the policies the

invited error doctrine reflects weigh just as heavily on the other side of the scales.

And they are several. I have already mentioned one: the doctrine vindicates

respect for the courts by preventing “sandbagging” and “gamesmanship,” where a

party gets a second bite of the apple at his adversary’s expense, and at the public’s

expense as well. The public suffers because, without the doctrine, the courts’

dockets would become overcrowded, the cases of those standing in the queue

waiting to be heard would be delayed, and the public’s respect for the courts would

wane. Justice delayed is justice denied.

      In seeking the vacation of Hayes’s sentence, the Government is gaming the

system. But in a larger sense, it is obstructing the administration of justice in the

Eleventh Circuit. Therefore, invoking the invited error doctrine, I would affirm

Hayes’s sentence.

                                           IV.

      The court entertained this appeal as the Government’s brief requested. That

is, it sidestepped the issue of whether the Hayes’s sentence is procedurally

unreasonable and went straight to the issue of whether the sentence is substantively

unreasonable. In doing so, the court purports to accept the statement in the

Government’s brief, that it “does not challenge the district court’s § 5K1.1

downward departure to a Guidelines range of 41-51 months.” Appellant Br. 11


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n.3. I say that the court purports to do this because it is apparent to me that it finds

Hayes’s sentence of probation substantively unreasonable not because it constitutes

an unreasonable variance from a Guideline range of 41 to 51 months, but because

it is an unreasonable departure from the applicable Guidelines range of 135 to 168

months. The court reveals this in the following passage of its opinion, which

describes the criminal activity the 135- to 158-month range reflects.

      But there are bribes, and then there are bribes. Mr. Hayes did not just
      give a one-time gratuity to a local zoning inspector to expedite a
      building permit for a pool. He paid over half a million dollars in
      bribes, over a four-year period, to a high-ranking Alabama official so
      that his company could continue to receive lucrative government
      contracts—efforts which were rewarded by a corporate bottom line
      that got fatter by $5 million—and for that he received probation. As
      corruption cases go, this was bribery writ large, and on this record the
      district court’s significant variance of 41-51 months cannot stand.

Ante at 18.

      In short, the court should have focused on Gall’s third step, which required

the District Court to “consider all of the § 3553(a) factors” in light of the correct

Guidelines range, 135 to 168 months, “to determine whether they support[ed] the

sentence requested by” Hayes—specifically, the sentence it ultimately imposed,

probation. See 

–

. After this, the court

should have asked whether the District Court “adequately explain[ed]” how a

sentence of probation squared with the need for Hayes’s sentence to provide just




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punishment and to deter others from emulating his criminal conduct. Id. at 

.

      Putting this aside, I am concerned about the court’s mandate. What

instruction does it give the District Court? Section 3742 of Title 18 of the U.S.

Code states, in pertinent part, that

      If the court of appeals determines that—

      ...
      (2) the sentence is outside the applicable guideline range and . . . the
      departure is . . . plainly unreasonable, it shall state specific reasons for
      its conclusions and—

      ...
      (B) if it determines that the sentence is too low . . ., it shall set aside
      the sentence and remand the case for further sentencing proceedings
      with such instructions as the court considers appropriate, subject to
      subsection (g).
18 U.S.C. § 3742(f)(2). Subsection (g) states that “[a] district court to which a case

is remanded pursuant to subsection . . . (f)(2) shall resentence a defendant in

accordance with section 3553 and with such instructions as may have been given

by the court of appeals.” § 3742(g).

      I suggest that the court’s mandate tells the District Court that a sentence of

probation on the facts stated in the PSI is substantively unreasonable as a matter of

law. The court’s reliance on those facts, as opposed to hypothetical facts that




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would support a Guidelines range of 41 to 51 months, 30 indicates that the

applicable Guidelines range is 135 to 168 months.

       I return to what I state in the introduction to this opinion: the invited error

doctrine requires that the judgment of the District Court be affirmed.




       30
         By conceding that the District Court’s use of the 41- to 51-month range was correct,
the Government implicitly takes the position that the facts of Hayes’s case support the 41 to 51
months range.

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