"Same Sentence Either Way": Why the Eleventh Circuit Keeps Rejecting Early Keene Statements in Florida Federal Sentencings

Federal judges in Florida have a sentence they use when a guideline objection is close: "Even if I am wrong about this, I would impose the same sentence." For years that line has worked as an insurance policy against reversal. On October 14, 2026, the Eleventh Circuit said again that the policy only pays out if the judge buys it at the right moment. A judge who announces the same-sentence-either-way conclusion before hearing the 18 U.S.C. § 3553(a) arguments and before the defendant speaks has not insulated anything. The sentence gets vacated.

That matters to every person facing a federal fraud sentencing in Florida this fall, and it matters more than usual because the fraud loss table changes on November 1. Close guideline fights produce alternative-sentence statements. Here is what the court held and how a sentencing record should be built around it.

A same-sentence-either-way statement only protects a sentence if it comes after the full 18 U.S.C. § 3553(a) presentation and the defendant's allocution.

Key Takeaways

• On October 14, 2026, the Eleventh Circuit vacated a Southern District of Florida sentence because the judge's same-sentence statement came before allocution.
• An alternative-sentence statement can make a guideline error harmless only if it follows the full 18 U.S.C. § 3553(a) presentation and the defendant's allocution.
• Letting the defendant speak after the judge announces the outcome does not cure a premature statement; allocution must be able to affect the sentence.
• The same opinion refused to defer to guideline commentary where the text of U.S.S.G. § 4B1.2 was unambiguous, applying the court's 2023 en banc rule.
• With the § 2B1.1 loss table changing November 1, 2026, Florida fraud sentencings near a threshold are where these statements will be tested next.

What the Eleventh Circuit Held on October 14

The published opinion, No. 21-14144, came out of a felon-in-possession case in the Southern District of Florida. The probation officer scored a prior Florida conviction for attempted manslaughter as a "crime of violence," which raised the base offense level from 20 to 22 and moved the advisory range from 70 to 87 months up to 84 to 105 months. The defense objected. The district court overruled the objection and, in the same breath, said it would give the same sentence regardless. Only after that did the court hear sentencing argument, consider the § 3553(a) factors and invite the defendant to allocute. It imposed 84 months.

The objection moved the advisory range from 70 to 87 months up to 84 to 105 months. The court overruled it and announced the same sentence regardless before it heard a word of argument.

Relying on its June 2026 decision reported at 177 F.4th 1291, the court held that a Keene statement, named for United States v. Keene, 470 F.3d 1347 (11th Cir. 2006), must come "after both sides are heard and all relevant factors are considered." A statement made earlier either shows the sentence was fixed in advance or shows the court had not finished the analysis Keene presupposes. Either way, it proves nothing about what the court would have done with a correct range.

The panel added a point defendants should remember: "allocution is not a hollow ritual." Once the judge has announced the result, the record cannot show that the defendant's own words had any realistic chance of changing it. The sentence was vacated and the case sent back for resentencing without the enhancement.

Why the Commentary Holding Matters for White Collar Cases

The opinion also refused to defer to the guideline commentary. The commentary to U.S.S.G. § 4B1.2 had long swept attempts into the definition of a crime of violence. The text did not. Applying its 2023 en banc decision, 57 F.4th 1269, the court held that when guideline text is unambiguous, commentary that adds to it gets no weight.

That method is the fight in fraud sentencing. Much of the loss machinery under § 2B1.1, including the rule that intended loss counts, has lived in commentary. The Supreme Court heard argument on October 13, 2026 in a case asking whether courts should keep deferring to guideline commentary at all. A white collar defense attorney preparing PSR objections today should be pressing the text-versus-commentary argument in writing, so the issue is preserved whichever way the Court rules.

Exposure: Where Keene Statements Show Up in Fraud Cases

Fraud sentencings under 18 U.S.C. § 1343 and 18 U.S.C. § 1347 turn on loss amount. A single tier on the table can move the offense level by two to four levels, which is often years. Judges facing a close loss amount dispute, a contested sophisticated-means enhancement or an abuse-of-trust adjustment reach for the alternative-sentence statement because it lets them decide the objection without risking a remand.

One tier on the loss table can move the offense level by two to four levels. That is where judges reach for the alternative-sentence statement.

The 2026 amendments take effect November 1, 2026. The loss table moves up for inflation, and the manual in effect on the sentencing date generally controls unless using it would increase the range for an older offense. Expect more borderline calculations in the months ahead, and expect more judges to say the dollar figure does not matter to them. Under this line of cases, that statement only protects the sentence if the record shows it came at the end, after a complete § 3553(a) presentation. Review of a sentence on appeal runs through 18 U.S.C. § 3742, and a premature statement leaves the government carrying a harmlessness burden it may not be able to meet.

Mistakes That Cost Defendants at Sentencing

Treating the objection as lost once the judge rules. The ruling is the start of the record, not the end.

Giving a thin § 3553(a) presentation because the judge seems settled. A properly timed Keene statement is reviewed for substantive reasonableness against the corrected, lower range. The stronger the mitigation record, the harder it is to defend an unchanged sentence under that lower range.

Scripting the allocution as an afterthought. The rule in Federal Rule of Criminal Procedure 32 gives the defendant the right to speak before sentence is imposed. Courts treat it as meaningful. Prepare it like testimony.

"Allocution is not a hollow ritual."— Eleventh Circuit, No. 21-14144 (October 14, 2026)

Waiting for the presentence report to start the loss fight. By the time a PSR is drafted, the government's loss narrative has been in the file for months. The figures that drive the guidelines are shaped during the investigation, often from the day a target letter or grand jury subpoena arrives.

The Defense Approach This Case Rewards

Good sentencing work for a Florida fraud client happens in three layers:

1. Written PSR objections that attack the specific figure and the specific paragraph, with the text-versus-commentary argument stated expressly where the enhancement rests on commentary.
2. A complete § 3553(a) record: the person, the conduct, comparable sentences and the actual harm, presented before the court announces anything.
3. A clean procedural record, so that if the court shortcuts the sequence, the appellate issue is preserved rather than waived.

Earlier still, a federal criminal defense attorney handling federal investigation defense should be working the loss number before charges are filed. A person under federal investigation who receives a letter from the U.S. Attorney's Office has more influence over the eventual guideline calculation during pre-charge negotiation with the AUSA than at any later point. Cooperation, a negotiated loss stipulation or a decision to litigate all start with an accurate picture of exposure.

Why Timing Matters Right Now

Two clocks are running. The new loss table applies to sentencings on or after November 1, 2026, which changes the math for anyone with a hearing on the calendar. And the Supreme Court's commentary-deference case could reshape intended-loss arguments when it is decided, likely before the Term ends.

For anyone facing federal charges in the Southern District of Florida or the Middle District, the sentencing record built this winter is the record an appellate court will review. It should be built on the assumption that every step will be examined, including the order in which the judge spoke.

Common Questions

Facing a Federal Fraud Sentencing in Florida?

Sentencing outcomes in federal fraud cases are shaped by the guideline objections, the mitigation record and the procedural record, and much of that work begins long before the hearing date. AMC Defense Law represents individuals in federal investigations and prosecutions in the Southern and Middle Districts of Florida and in federal courts nationwide. If you have received a target letter, a grand jury subpoena or a sentencing date, contact the firm for a confidential consultation through our federal sentencing mitigation practice.

Written PSR objections, a complete § 3553(a) record and a clean procedural record: the three layers of sentencing work this decision rewards.

If you or your loved ones have been arrested or are facing a federal sentencing in Florida, call Aaron M. Cohen, 24 hours a day to get help. Request a confidential consultation.

This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Every case is different, and you should consult a qualified attorney about your specific situation.

About the author: Aaron M. Cohen is the founder and principal attorney of AMC Defense Law, a criminal defense firm in Boca Raton, Florida, with more than 30 years of experience in state and federal courts. He is admitted to practice in Florida, New York, New Jersey, and the District of Columbia, and before the United States District Courts for the Southern and Middle Districts of Florida, the Southern, Eastern, and Western Districts of New York, the District of New Jersey, and the Northern District of Texas. He appears pro hac vice in other federal districts nationwide. The firm represents clients in federal investigations and prosecutions involving healthcare fraud, Anti-Kickback Statute matters, DME and telemedicine fraud, peptide and compounded-drug enforcement, controlled-substance and drug conspiracy cases, financial crimes, and complex federal litigation, in Florida and nationwide.