Appellate Case: 25-2060 Document: 47-1 Date Filed: 08/14/2026 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
August 14, 2026
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-2060
NATHEN RICHARD GARLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:23-CR-01485-WJ-1)
Violet N. D. Edelman, Assistant Federal Public Defender, Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico, for Defendant-Appellant.
Emil J. Kiehne, Assistant United States Attorney (Ryan Ellison, United States Attorney, with him on the brief), Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico, for Plaintiff-Appellee.
Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.
ROSSMAN, Circuit Judge.
Nathen Garley was convicted after pleading guilty to possessing
fentanyl with the intent to distribute it, in violation of 21 U.S.C.
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§§ 841(a)(1), (b)(1)(A). Before Mr. Garley entered his guilty plea in federal
court, the State of New Mexico charged him with first-degree murder for
the death of an 11-year-old boy who had been shot in Albuquerque about a
week before Mr. Garley committed the instant federal offense. At the time
of his federal sentencing, Mr. Garley had been convicted in state court but
not yet sentenced. The district court sentenced Mr. Garley to 240 months in
prison—a significant upward variance—and ordered the federal sentence to
be served consecutively to the anticipated state sentence.
Mr. Garley now appeals, challenging his sentence as procedurally and
substantively unreasonable. First, Mr. Garley contends the district court
committed plain procedural error by not applying U.S.S.G. § 5G1.3(c)—
which recommends imposing concurrent sentences when a state term of
imprisonment is anticipated to result from another offense that is “relevant
conduct” to the federal offense of conviction. We reject this argument
because Mr. Garley has not shown error—let alone plain error. Second, Mr.
Garley argues his sentence is substantively unreasonable because the
district court inadequately explained its decision to vary upward. On the
record before us, we cannot agree. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
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I1
On September 6, 2023, Mr. Garley and another man were involved in the
fatal shooting of an 11-year-old boy in Albuquerque. The child and his family
were in their car when, according to witnesses, a man in another vehicle used
a rifle to shoot at them. The shots penetrated the family’s car, killing the boy
and injuring his mother. It later turned out Mr. Garley was the shooter. Law
enforcement investigated the incident and concluded the victims had been
mistakenly shot as a result of a rival gang feud.
About a week later, on September 13, 2023, Mr. Garley and his girlfriend
were driving back to New Mexico from Arizona. Law enforcement stopped their
vehicle for having expired car insurance. During the traffic stop, the officers
smelled a strong odor of marijuana coming from the car. The officers initiated
a search and found marijuana in Mr. Garley’s front pocket. After searching the
car, the officers discovered a large duffle bag in the trunk. Inside the bag were
six plastic vacuum-sealed bundles containing blue pills. Mr. Garley was
arrested. Laboratory testing confirmed the pills were fentanyl, with an
estimated net weight of 10.42 kilograms (about 23 pounds).
1 We derive our facts from the appellate record, particularly from Mr. Garley’s unobjected-to Presentence Investigation Report (PSR). See United States v. Martinez, 82 F.4th 994, 997 & n.1 (10th Cir. 2023).
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On October 4, 2023, the government indicted Mr. Garley on one count of
possession with intent to distribute 400 grams or more of a mixture or
substance containing fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A).
A little over a week after the federal charges were filed, the State of New
Mexico prosecuted Mr. Garley for the shooting in Albuquerque on September
6, 2023. He was charged with first-degree murder, among other state crimes.
On February 24, 2025, a jury convicted Mr. Garley in state court on all counts.
His state sentencing was set for May 21, 2025.
Meanwhile, on February 6, 2025, Mr. Garley pleaded guilty to the federal
indictment without a plea agreement. The Probation Office prepared a PSR,
and it included an advisory Guidelines calculation, as follows:
Base Offense Level, U.S.S.G. 34
§ 2D1.1(a)(5)
Acceptance of responsibility, -2
U.S.S.G. § 3E1.1(a)
Additional reduction for
acceptance of responsibility -1
under the plea agreement,
U.S.S.G. § 3E1.1(b)
Total Offense Level: 31
The PSR counted Mr. Garley’s New Mexico state offenses as part of his
criminal history score under U.S.S.G. § 4A1.2(a)(4). Mr. Garley had yet to be
sentenced in state court, so the PSR assigned his state case one criminal
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history point. Id. §§ 4A1.1(c), 4A1.2(a)(4). 2 With no other points, Mr. Garley
was in criminal history category I.
Based on these calculations, and given the applicable 10-year
statutory minimum for a conviction under 21 U.S.C. § 841(b)(1)(A), the PSR
arrived at an advisory Guidelines range of 120 to 135 months’
imprisonment. The PSR also discussed the U.S. Sentencing Commission’s
Judiciary Sentencing Information statistics, showing all defendants
similarly situated to Mr. Garley “received a sentence of imprisonment in
whole or in part, [and] . . . the average sentence imposed was 83 month(s)
and the median sentence imposed was 84 month(s).” R.Supp.27. Probation
recommended a within-Guidelines sentence but identified Mr. Garley’s
state murder conviction as a potential ground for an upward variance under
18 U.S.C. § 3553(a). Mr. Garley filed no objections to the PSR. Neither did
the government.
2 U.S.S.G. § 4A1.2(a)(4) provides:
Where a defendant has been convicted of an offense, but not yet
sentenced, such conviction shall be counted as if it constituted a
prior sentence under § 4A1.1(c) if a sentence resulting from that
conviction otherwise would be countable. In the case of a conviction
for an offense set forth in § 4A1.2(c)(1), apply this provision only
where the sentence for such offense would be countable regardless
of type or length.
Section 4A1.1(c), in turn, assigns “1 point for each prior sentence[.]” Id. § 4A1.1(c).
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In its sentencing memorandum, the government agreed the PSR
“accurately describe[d] the nature of this [federal] offense[,]” and “correctly
calculated the applicable total offense level and criminal history category.”
RI.20. But the government requested an upward variance under § 3553(a)
“to a term of 240 months[’] imprisonment, to run consecutive to any term of
imprisonment imposed by the state” for Mr. Garley’s state murder
conviction. RI.28. In support, the government emphasized that Mr. Garley
was found with fentanyl pills for “over 65,800 fatal doses.” RI.22. The
government also referenced data in the 2024 National Drug Threat
Assessment (NDTA). 3 The NDTA reported fentanyl was the leading cause
of drug deaths in the United States from 2021 to 2023—resulting in more
than twice as many deaths as methamphetamine.
Notwithstanding the known dangers of fentanyl, the government
observed, the Guidelines still punish methamphetamine more harshly. Mr.
Garley’s advisory Guidelines range would have been 168 to 210 months’
imprisonment (rather than 120 to 135 months), the government pointed out,
“[i]f the fentanyl guidelines were brought in line with the
methamphetamine (actual) guidelines[.]” RI.25 n.1. The government also
3 The NDTA is an intelligence assessment of illicit drug threats in the
United States produced by the Drug Enforcement Administration’s
Intelligence Program. See U.S. DEP’T OF JUST., NATIONAL DRUG THREAT ASSESSMENT, LETTER FROM THE ADMINISTRATOR (2024).
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cited out-of-circuit decisions affirming upward variances based on a judge’s
policy disagreements with the “lenient[]” treatment of fentanyl in the
Guidelines. See RI.24–25 (first citing United States v. Cortez, 72 F.4th 1344,
1345 (8th Cir. 2023) (affirming upward variance where district court
“cogently explained its view that the guidelines generally treat fentanyl
offenses too leniently”); then citing United States v. Roy, 88 F.4th 525, 532
(4th Cir. 2023) (affirming upward variance where the district court
discussed “fentanyl’s lethality and the devastating impact it has wrought
upon communities”)). Mr. Garley did not submit a sentencing
memorandum.
On April 30, 2025, the district court convened a sentencing hearing.
At that time, Mr. Garley was still awaiting sentencing in his state case. At
the outset of the hearing, defense counsel said he had reviewed the PSR
with Mr. Garley and had no objections to it. The district court then
confirmed the government sought to have the federal sentence
imposed consecutively to the state sentence.
The government acknowledged it was “a pretty substantial upward
variance,” but insisted 240 months’ imprisonment was justified under the
statutory sentencing factors. RIII.30. Focusing on the “nature and
circumstances of the offense[,]” the government argued the Guidelines
“don’t really account for the dangerousness of fentanyl and the rise in
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overdose deaths that have been occurring[.]” RIII.30. The government
described “fentanyl’s unique lethality,” and referenced “the fentanyl
epidemic[,]” observing the district court previously “made mention of this in
some of its own cases[.]” RIII.30–32. “[T]his [fentanyl] crisis hits close to
home[,]” the government said, and “is fueled by people just like [Mr. Garley]
who are bringing in rampant amounts of fentanyl pills to be distributed all
throughout” New Mexico. RIII.31.
Mr. Garley “do[es not] have much in the way of criminal history,” the
government admitted, but it emphasized the “shooting of the 11-year-old
outside of the baseball game, something that shook the entire community
and was motivated by a foolish and violent gang feud between [Mr. Garley]
and other gang members.” RIII.32. The government characterized the state
crimes as “horrific” and Mr. Garley’s response—leaving New Mexico
immediately after the shooting to have a “lavish time” in Arizona—as
“shockingly callus.” RIII.33. The government expected Mr. Garley “to get a
life sentence in state court,” but urged the district court to impose a federal
sentence “based on the circumstances here and not what might, or even is
likely to happen[,] in the state for that other case.” RIII.34–35.
Next, Mr. Garley advanced his sentencing position. He sought a
sentence within the advisory Guidelines range to run concurrently with the
yet-to-be-imposed state sentence. Defense counsel recognized the
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government was seeking “a large variance” that “need[ed] to be justified
within the sentencing factors in great detail[.]” RIII.36 (relying on United
States v. Crosby, 119 F.4th 1239 (10th Cir. 2024)). In defense counsel’s view,
there was no support for such a long sentence. He addressed what he
believed to be the “heart” of the government’s request: “to sentence
[Mr. Garley] based on a crime that he’s already been convicted of in state
court[.]” RIII.36. Defense counsel maintained it was not appropriate for the
district court “to punish [Mr. Garley] for that state case.” RIII.36. “In terms
of fentanyl,” defense counsel “agree[d] with everything the [g]overnment
said about fentanyl being a scourge in [the] community” and “a terrible
substance,” but insisted the treatment of fentanyl in the Guidelines is
something “the Sentencing Commission needs to address.” RIII.37.
The district court adopted the PSR’s “factual findings, noting there
are no objections.” RIII.43. And it agreed with the calculations in the PSR.
The district court acknowledged Mr. Garley appropriately received only one
criminal history point for his state conviction under § 4A1.2(a)(4) because
he was still “awaiting sentencing in state court[.]” RIII.44. Ultimately, the
district court determined Mr. Garley’s advisory Guidelines range was 120
to 135 months’ imprisonment.
The district court turned to the government’s request for an upward
variance under § 3553(a). “[I]f I was going to impose a guideline sentence,”
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the district court explained, “a sentence on the high end of the [G]uidelines
would be appropriate[.]” RIII.43. But it determined a within-Guidelines
sentence was not appropriate. The district court said that, under
§ 3553(a)(1), it was “required to consider” whether Mr. Garley’s “entire
history, including his criminal history, supports any variance from the
[G]uidelines, even though the history was already used to calculate [his]
guideline range.” RIII.45 (citing United States v. Vazquez-Garcia, 130 F.4th
891 (10th Cir. 2025)). Focusing on Mr. Garley’s criminal history, the district
court found “the unobjected[-]to facts set forth in the [PSR] regarding [Mr.
Garley]’s state court convictions, including first[-]degree murder for the
shooting of an 11-year-old boy as well as the wounding and what would
appear to be permanent injury, physical injury, to the child’s mother,
support an upward variance.” RIII.45.
The district court stressed the significance of Mr. Garley’s federal
offense conduct, observing it involved “over ten kilograms of fentanyl.”
RIII.46. The district court observed upward variances “based on the
dangerousness of fentanyl” have been affirmed by other circuit courts.
RIII.46–47 (first citing United States v. McCrary, 43 F.4th 1239, 1250 n.7
(10th Cir. 2022), which cited United States v. Robinson, 892 F.3d 209, 211,
215–17 (6th Cir. 2018) (affirming an upward variance based on the harm
caused by fentanyl and other opioids); and then citing United States v.
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Armond, 135 F.4th 626, 628–29 (8th Cir. 2025) (affirming an upward
variance based on the dangers of heroin and fentanyl)).
The district court also described its disagreement with how the
Guidelines treat fentanyl. “In other sentencings I’ve conducted,” the district
court said, “I’ve commented that the [G]uidelines[’] treatment of fentanyl
as less serious than methamphetamine is illogical[.]” RIII.47 (referencing
its decision in United States v. Jimenez-Marquez, 750 F. Supp. 3d 1267
(D.N.M. 2024)). It further focused on “the drug amount” in Mr. Garley’s
case, observing that “if we were dealing with methamphetamine [instead of
fentanyl],” Mr. Garley’s advisory Guidelines range would be significantly
higher. RIII.47.
Turning to the remaining § 3553(a) factors, the district court
concluded that “a lengthy, lengthy sentence should be imposed to satisfy
the sentencing factor dealing with adequate deterrence to criminal
conduct.” RIII.47–48; see 18 U.S.C. § 3553(a)(2)(B). In considering the need
“[t]o protect the public from further crimes of [Mr. Garley,]” the district
court recalled the “serious crime spree” that occurred “within a week” in
New Mexico—including “a first[-]degree murder[,]” “aggravated assault
resulting in great bodily injury[,]” and “possession with the intent to
distribute a huge quantity of fentanyl.” RIII.48.
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Finally, the district court mentioned the unique nature of
Mr. Garley’s case. “[I]n terms of comparing defendants with similar
records,” it reasoned, “the [G]uidelines do not adequately take into account
[Mr. Garley]’s conduct, because he shot and killed a child and permanently
injured the child’s mother in a gang-related event in one week, and then
was distributing a huge quantity of fentanyl the next week, within seven
days.” RIII.48.
Based on this reasoning, the district court imposed a 240-month term
of imprisonment followed by five years of supervised release. The district
court recognized its “inherent authority” to determine whether the sentence
should be imposed to run consecutively or concurrently, RIII.49 (citing
Setser v. United States, 566 U.S. 231 (2012)), and ordered that Mr. Garley’s
federal sentence “shall run consecutive to [the] yet to be imposed state court
sentence.” RIII.49.
After the district court announced Mr. Garley’s sentence, it asked the
parties if they had anything further. “Nothing from the United States,” the
prosecutor said, “other than I would just ask on the record if [Mr. Garley]
has any objection to the adequacy of the [c]ourt’s explanation [with respect]
to any aspect of the sentencing decision.” RIII.50. The district court noted
Mr. Garley’s “objection to the sentence imposed” and asked defense counsel
whether, “in terms of explanations offered for the sentence,” there was
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“anything further [he] believe[d] [was] required[.]” RIII.50. “No,” defense
counsel responded, but “to preserve [his] client’s appellate rights,” he
reiterated Mr. Garley’s “position is [that] this [sentence] is substantively
unreasonable.” RIII.50.
This timely appeal followed.
II
“[A]ppellate review for reasonableness includes both a procedural
component, encompassing the method by which a sentence was calculated,
as well as a substantive component, which relates to the length of the
resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir.
2008). Mr. Garley challenges his 240-month sentence as procedurally and
substantively unreasonable. We address each issue and affirm.
A
Mr. Garley first contends the district court was required to impose a
concurrent—not consecutive—sentence under U.S.S.G. § 5G1.3(c). A
defendant’s claim that “his consecutive sentence is the product of the
district court’s improper application of the Guidelines” is a challenge
directed to the “procedural reasonableness” of the sentence. United States
v. Finnesy, 953 F.3d 675, 688 (10th Cir. 2020) (considering the district
court’s alleged failure to apply U.S.S.G. § 5G1.3(b) as a procedural
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reasonableness error). Ordinarily, “we review legal questions regarding the
application of the Sentencing Guidelines de novo, and a district court’s
factual findings are reviewed only for clear error[.]” United States v. Iley,
914 F.3d 1274, 1278 (10th Cir. 2019) (emphasis added) (internal quotation
marks omitted). “[W]hen a defendant fails to preserve an objection to the
procedural reasonableness of his sentence, we review only for plain error.”
United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008).
Mr. Garley acknowledges he forfeited his § 5G1.3(c) argument before
the district court. That is, Mr. Garley “did not adequately alert the district
court that its proposed decision to run his federal sentence consecutively to
his state sentence might contravene” § 5G1.3(c). Finnesy, 953 F.3d at 690.
He appropriately proceeds on appeal under the plain error framework.
Plain error is a “demanding standard,” United States v. McGehee, 672
F.3d 860, 876 (10th Cir. 2012), and “intentionally difficult to satisfy[,]”
United States v. Paycer, 154 F.4th 1261, 1271 (10th Cir. 2025). To prevail
on plain error review, Mr. Garley must show (1) error, (2) that is plain,
which (3) affects substantial rights, meaning there is “a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different[,]” and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Benally, 19 F.4th
1250, 1256 (10th Cir. 2021) (quoting Greer v. United States, 593 U.S. 503,
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507–08 (2021)). “Failure to establish any one of these elements precludes
reversal.” United States v. Romero, 132 F.4th 1208, 1218 (10th Cir. 2025).
“[T]he burden of establishing entitlement to relief for plain error is on the
defendant claiming it[.]” United States v. Dominguez Benitez, 542 U.S. 74,
82 (2004).
1
We conclude Mr. Garley fails at the outset. He has not shown error,
let alone plain error, in the district court’s alleged failure to apply
§ 5G1.3(c). That provision, titled “Imposition of a Sentence on a Defendant
Subject to an Undischarged Term of Imprisonment or Anticipated State
Term of Imprisonment,” provides:
If subsection (a) does not apply, 4 and a state term of
imprisonment is anticipated to result from another offense that
is relevant conduct to the instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant
Conduct), the sentence for the instant offense shall be imposed
to run concurrently to the anticipated term of imprisonment.
U.S.S.G. § 5G1.3(c) (2024) (footnote added). 5 Section 1B1.3, in turn,
provides:
4 Subsection (a) only applies when “the instant offense was committed
while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment[.]” U.S.S.G. § 5G1.3(a). This provision does not apply to Mr. Garley’s sentence, and nobody says otherwise.
5 We use the 2024 Guidelines in effect when Mr. Garley was sentenced
in April 2025. See United States v. Sullivan, 255 F.3d 1256, 1259 (10th Cir.
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(a) CHAPTERS TWO (OFFENSE CONDUCT) AND THREE
(ADJUSTMENTS)—Unless otherwise specified, (i) the base
offense level where the guideline specifies more than one
base offense level, (ii) specific offense characteristics and (iii)
cross references in Chapter Two, and (iv) adjustments in
Chapter Three, shall be determined on the basis of the
following:
(1) (A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or
willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity
(a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others,
whether or not charged as a conspiracy), all acts and
omissions of others that were—
(i) within the scope of the jointly undertaken
criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity;
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility
for that offense;
(2) solely with respect to offenses of a character for which
§3D1.2(d) would require grouping of multiple counts, all
acts and omissions described in subdivisions (1)(A) and
(1)(B) above that were part of the same course of conduct
or common scheme or plan as the offense of conviction;
2001) (noting “a sentencing court must apply the guidelines in effect at the time of sentencing . . . unless such application would violate the ex post facto clause”); U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”). But we note the November 2025 amendments to the Guidelines did not change the provisions applicable to this appeal.
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(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and all
harm that was the object of such acts and omissions; and
(4) any other information specified in the applicable
guideline.
U.S.S.G. § 1B1.3(a).
Mr. Garley argues his state convictions qualified as “relevant conduct”
to his federal fentanyl offense under § 1B1.3, so the district court should
have granted him “the benefit of U.S.S.G. § 5G1.3’s direction to impose
sentences based on relevant conduct concurrent to one another.” Op. Br. at
2. Rather than apply § 5G1.3, as Mr. Garley claims was required, the
district court mistakenly treated his state offenses as part of his criminal
history under U.S.S.G. § 4A1.2.
To reach the issue at the core of his procedural reasonableness
challenge, Mr. Garley has to demonstrate § 5G1.3 was even implicated, and
to do that, he first must show the district court plainly erred in treating his
state convictions as criminal history under § 4A1.2 rather than as relevant
conduct under § 1B1.3. 6 On the record before us, he cannot make this
showing.
6 It is unclear which parts of § 1B1.3 Mr. Garley actually invokes. In his
opening brief, he focuses on subsection (a)(2). But in his reply brief, he also references subsection (a)(1). Like the government, we will broadly construe Mr. Garley’s argument as invoking both subsections (a)(1) and (a)(2).
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To explain why, we first discuss “the interplay between criminal
history and relevant conduct[.]” United States v. Caldwell, 128 F.4th 1170,
1176 (10th Cir. 2025). Criminal history refers “to a defendant’s past
criminal conduct (as evidenced by conviction and prison terms)[.]” Witte v.
United States, 515 U.S. 389, 405 (1995) (emphasis in original) (citing
U.S.S.G. § 4A1.1). “[P]ast criminal convictions are generally treated as an
offender characteristic, and taken into account by assigning a criminal
history score.” United States v. Allen, 488 F.3d 1244, 1254 (10th Cir. 2007);
see U.S.S.G. § 4A1.1(a)–(e) (assigning criminal history points based on the
length of the sentence the defendant received for each prior conviction). A
criminal history score yields a category that is “defined according to the
defendant’s ‘prior sentence[s],’ which in turn [are] defined as ‘any sentence
previously imposed upon adjudication of guilt . . . for conduct not part of the
instant offense.’” Allen, 488 F.3d at 1254 (ellipsis in original) (quoting
U.S.S.G. § 4A1.2(a)(1)).
In contrast, relevant conduct “does not accrue criminal history
points.” Caldwell, 128 F.4th at 1176. Relevant conduct is “[c]onduct that is
part of the instant offense . . . under the provisions of §1B1.3 (Relevant
Conduct).” U.S.S.G. § 4A1.2 cmt. n.1. “A correct determination of whether
the prior sentence constituted relevant conduct is an essential predicate to
the criminal history assessment.” United States v. Torres, 182 F.3d 1156,
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1160 (10th Cir. 1999). As our precedent recognizes, “the district court’s
overarching delineation of relevant conduct” is “configured by key factual
findings[.]” See United States v. D.A., 132 F.4th 1163, 1175 (10th Cir. 2025).
Keeping these principles in mind, we conclude Mr. Garley’s argument
proceeds from a mistaken premise. He assumes the district court
“effectively treated his state crimes as relevant conduct” under § 1B1.3 but
failed to “formally classify them as such[.]” Op. Br. at 2. There is no support
in the record for this assertion.
First, Mr. Garley acknowledges the PSR treated his state offenses as
part of the criminal history score. The PSR assigned Mr. Garley one
criminal history point for his September 2023 state offenses. It correctly
cited U.S.S.G. §§ 4A1.1(c) and 4A1.2(a)(4) in support of its determination.
Second, in adopting the unobjected-to PSR at sentencing, the district
court expressly referred to Mr. Garley’s state offenses as part of his criminal
history. The district court even observed Mr. Garley would have received
more criminal history points for the state offenses—putting him into a
higher criminal history category (II) and higher advisory Guidelines range
(121 to 151 months)—had he already been sentenced in state court. 7 The
7If Mr. Garley had been sentenced in state court before his federal sentencing, U.S.S.G. § 4A1.2(a)(4) would not apply, and Mr. Garley would be assigned criminal history points based on the length of his state sentence. The Guidelines assign a maximum of “3 points for each prior sentence of
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district court considered whether Mr. Garley’s “entire history, including his
criminal history, supports any variance[.]” RIII.45 (citing Vazquez-Garcia,
130 F.4th 891). It was in this context that the district court announced Mr.
Garley’s “state court convictions, including first[-]degree murder for the
shooting . . . support[ed] an upward variance.” RIII.45.
Mr. Garley’s contrary reading of the record is unconvincing. He first
contends the district court must have treated the state offenses as relevant
conduct because the court asked the prosecutor if the state-court victims
were planning to appear at the federal sentencing. 8 The prosecutor
answered, “I don’t think there are victims attributed to this part of the
[federal] charge[,]” but confirmed there were victims in the state case.
RIII.29. Based on this exchange, Mr. Garley assumes “both the court and
the government viewed the state conduct as part and parcel of the federal
crime” and “intimately connected with the instant offense and relevant to
imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). Because Mr. Garley was expected to receive a life sentence for his first-degree murder conviction in state court, the district court correctly reasoned he would have been assigned three criminal history points. With three criminal history points, Mr. Garley would have been in criminal history category II, with an advisory Guidelines range of 121 to 151 months’ imprisonment. See id. ch. 5, pt. A (sentencing table).
8
Mr. Garley is referencing the district court’s inquiry at the start of the sentencing hearing about whether there had been any “requests for victim allocution statements[.]” RIII.29.
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sentencing[.]” Op. Br. at 13. We cannot agree. Nothing about this colloquy
suggests the district court effectively treated Mr. Garley’s state case as
relevant conduct. Rather, as the government points out, “the court and
prosecutor believed that the state-court victims might naturally be
interested in learning what federal sentence [Mr.] Garley received[.]” Ans.
Br. at 18.
Next, Mr. Garley argues the district court must have treated the state
crimes as relevant conduct because it referred to the shooting when
describing “the facts in this case” at sentencing. Op. Br. at 13 (quoting
RIII.45). We again disagree. To be sure, the district court discussed how
Mr. Garley was arrested while transporting a large quantity of fentanyl and
observed that, about a week earlier, he had shot and killed an 11-year-old
boy. See RIII.45–46. At most, this shows the district court correctly
understood the state and federal offenses occurred a week apart—a fact no
one disputes. It does not mean, as Mr. Garley argues, the district court
understood the federal offense “as a continuation of the conduct forming the
bases of the state charges.” Op. Br. at 13.
Finally, Mr. Garley says the district court referred to the state and
federal criminal conduct as “a serious crime spree within a week[,]” RIII.48,
so that must mean it was referencing the Guidelines commentary describing
relevant conduct as “part of a single episode[,] spree, or ongoing series of
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offenses.” Op. Br. at 13–14 (quoting U.S.S.G. § 1B1.3 cmt. n.5(B)(ii)). 9 Mr.
Garley’s position is not well taken. In the abstract, the district court’s
reference to a crime spree could contemplate temporal proximity—one of
the factors under § 1B1.3(a)(2). See United States v. Damato, 672 F.3d 832,
839 (10th Cir. 2012) (explaining, that in determining relevant conduct,
“[w]e consider ‘the degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the offenses.’”
(quoting U.S.S.G. § 1B1.3 cmt. n.9(B) (2009)). 10 Nothing in the record
supports the interpretation Mr. Garley advances. Further undermining Mr.
Garley’s argument, the district court did not consider the remaining two
factors: “the degree of similarity of the offenses” or “the regularity
(repetitions) of the offenses[.]” See U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). Indeed,
the district court made no factual findings to support a relevant conduct
determination because it appropriately understood the state convictions as
criminal history.
9 Mr. Garley mistakenly attributes this language to “U.S.S.G.
§ 1B1.2(a)(2), comment. (n.5).” Op. Br. at 14. Section 1B1.2 does not have a subsection (a)(2). Nor does it have an Application Note 5. We assume Mr. Garley meant to cite § 1B1.3 and Application Note 5(B)(ii).
10 In Damato, we cited an earlier version of the Guidelines that had codified the relevant commentary language under Application Note 9(B) of § 1B1.3. The text of what was then Application Note 9(B) is identical to the text of what is now Application Note 5(B)(ii).
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2
It is hardly obvious the district court should have treated Mr. Garley’s
state offenses as relevant conduct—to trigger § 5G1.3(c)—instead of as
criminal history under § 4A1.2. See, e.g., United States v. Hood, 615 F.3d
1293, 1301 (10th Cir. 2010) (holding that “[e]ven if we assume[d] arguendo”
the district court erred, the defendant could not “establish that such error
[was] plain” (internal quotations marks omitted)). “[A]n error is plain if it
is ‘clear or obvious under current, well-settled law,’ meaning ‘either the
Supreme Court or this court [has] addressed the issue.’” United States v.
Flechs, 98 F.4th 1235, 1254 (10th Cir. 2024) (second alteration in original)
(quoting United States v. Brooks, 736 F.3d 921, 930 (10th Cir. 2013)).
“[E]ven where there is no such precedent, we may find plain error where
the district court has engaged in a clearly erroneous application of statutory
law.” United States v. Story, 635 F.3d 1241, 1248 (10th Cir. 2011) (internal
quotation marks omitted); see also Caldwell, 128 F.4th at 1175 (“The
guidelines are interpreted as though they were a statute or court rule, with
ordinary rules of statutory construction.” (internal quotation marks
omitted)). “But no matter the source relied on, the error must be so clear or
obvious that it could not be subject to any reasonable dispute.” United
States v. Johnson, 157 F.4th 1309, 1321 (10th Cir. 2025) (emphasis and
internal quotation marks omitted).
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Mr. Garley does not meaningfully develop any appellate argument on
plainness. In his opening brief, he simply asserts, “[t]he district court’s error
was plain.” Op. Br. at 19. In support, he offers a single sentence: “The state
conduct qualifies as relevant to the offense of conviction under the plain
language of the [G]uidelines, underscored by the district court’s
consideration of it as such.” Op. Br. at 19. The government urges waiver as
to the plainness prong “because [Mr.] Garley does not identify the language
in the Guidelines that he believes ‘clearly settles the question’ or explain
why he thinks it does so.” Ans. Br. at 23 (quoting United States v. Jones, 74
F.4th 1065, 1070 (10th Cir. 2023)). Mr. Garley does not respond to the
government’s argument or otherwise address plainness in his reply brief.
Under these circumstances, we could resolve this issue on waiver grounds.
See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (“It is wellsettled that arguments inadequately briefed in the opening brief are waived.”
(brackets and internal quotation marks omitted)). In any event, Mr. Garley
cannot prevail on the merits.
The plain language of §§ 1B1.3(a)(1) and (a)(2) does not obviously
resolve whether Mr. Garley’s state offenses were relevant conduct to his
federal offense. As the government persuasively explains, “[b]oth provisions
contain general standards that a district court must apply to a wide variety
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of specific factual scenarios.” Ans. Br. at 23. We address each provision in
turn.
Under § 1B1.3(a)(1), an offense could be understood as relevant
conduct if it occurred “during[,]” “in preparation for[,]” or “in the course of
attempting to avoid detection or responsibility for” the instant federal
offense. U.S.S.G. § 1B1.3(a)(1). We have held that for a state offense to
qualify as relevant conduct under § 1B1.3(a)(1), it “must relate to the
offense of conviction.” Caldwell, 128 F.4th at 1179; see also id. at 1175 (“The
Guidelines’ text and commentary, the purposes for relevant conduct and
criminal history guidelines, and cases from this and other circuits show that
relevant conduct consists of acts or omissions that occurred not only during
the offense of conviction but also relate to that offense.” (emphasis added)).
But “[o]ne criminal act does not become ‘relevant’ to a second act under the
Guidelines by the bare fact of temporal overlap.” Id. at 1181 (quoting United
States v. Wernick, 691 F.3d 108, 115 (2d Cir. 2012)).
On appeal, the parties agree the state and federal offenses are
temporally proximate. Mr. Garley does not explain how his state conviction
otherwise “relates to” his federal offense. Just the opposite: Mr. Garley
acknowledges his state and federal crimes “are very different[.]” Op. Br. at
15. We thus cannot say Mr. Garley’s state offenses obviously relate to his
federal fentanyl offense under § 1B1.3(a)(1).
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Under § 1B1.3(a)(2), an offense could be understood as relevant
conduct if it was part of the “same course of conduct” or “common scheme or
plan” as the instant federal offense. 11 U.S.S.G. § 1B1.3(a)(2). Two offenses
might qualify as part of the “same course of conduct if they are sufficiently
connected or related to each other as to warrant the conclusion that they
are part of a single episode, spree, or ongoing series of offenses.” Id. § 1B1.3
cmt. n.5(B)(ii). When determining whether an offense is part of the same
course of conduct, “each case depends largely on its own facts.” United
States v. Garcia, 946 F.3d 1191, 1204 (10th Cir. 2020) (internal quotation
marks omitted). Three factors are relevant to that determination: “[1] the
degree of similarity of the offenses, [2] the regularity (repetitions) of the
offenses, and [3] the time interval between the offenses.” Damato, 672 F.3d
at 839 (quoting U.S.S.G. § 1B1.3 cmt. n.9(B)); see U.S.S.G. § 1B1.3 cmt.
n.5(B)(ii). “When one of the [three] factors is absent, a stronger presence of
at least one of the other factors is required.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii);
11 Whether two offenses constitute the “same course of conduct” and “common scheme or plan” are distinct inquiries. See Damato, 672 F.3d at 839 (“Our circuit has distinguished between the phrases ‘same course of conduct’ and ‘common scheme or plan.’”). Mr. Garley does not contend his state offenses and federal offense were part of a “common scheme or plan.” Nor could he. To “constitute part of a common scheme or plan,” the two offenses “must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3 cmt. n.5(B)(i). The record here does not evince any common factors.
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see Damato, 672 F.3d at 839–40 (describing this as a “sliding scale”
approach).
As discussed, Mr. Garley’s state and federal offenses are entirely
different, so these offenses do not plainly satisfy the “similarity” or
“regularity” factors. See U.S.S.G. § 1B1.3 cmt. n.5(B)(ii) (explaining the
“similarity” factor looks to “the degree of similarity of the offenses”);
Damato, 672 F.3d at 841 (“To determine whether regularity is present, we
inquire whether there is evidence of a regular, i.e., repeated, pattern of
similar unlawful conduct between the purported relevant conduct and the
offense of conviction.” (emphasis added) (internal quotation marks
omitted)). We therefore cannot say the district court plainly erred in not
considering the state offenses as relevant conduct under § 1B1.3(a)(2).
Finally, our decision in Finnesy is particularly instructive in support
of affirmance. There, we considered whether the district court plainly erred
at sentencing by not imposing concurrent sentences under § 5G1.3(b). 12 953
F.3d at 682, 688. We resolved the defendant’s appeal on prong two—failure
to show plainness. See id. at 688, 691–98. “[O]n the record before the district
court,” we concluded, “it hardly would have been clear or obvious that the
12 Section 5G1.3(b) similarly contemplates imposing concurrent terms of
imprisonment for relevant conduct, but where “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction[.]” U.S.S.G. § 5G1.3(b).
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state offenses underlying [the defendant]’s undischarged state sentence
were relevant conduct . . . within the meaning of subsection (a)(1), (a)(2), or
(a)(3) of § 1B1.3.” Id. at 694. “The PSR left virtually no room for doubt that
it did not consider [the defendant]’s state offenses to be relevant conduct.”
Id. It assigned the defendant criminal history points for the offenses, which
it would not have done if it considered the offenses relevant conduct. See id.
at 693 (citing Torres, 182 F.3d at 1159 (noting that “a prior sentence counts
as criminal history if it does not involve relevant conduct under § 1B1.3”)).
“And, importantly, [the defendant] raised no objections to the contents of
the PSR, meaning that the district court would not have been alerted to any
concerns regarding the PSR’s assessment of the scope of relevant conduct.”
Id. at 694–95 (internal citation omitted). So too here, as our discussion
above illustrates.
We thus discern no plain error under U.S.S.G. § 5G1.3(c) in the
district court’s decision to run the sentence on Mr. Garley’s fentanyl offense
consecutive to his yet-to-be imposed state sentence.
B
Mr. Garley also argues his 240-month sentence is substantively
unreasonable because “[t]he district court did not articulate [a] sufficient
justification for its dramatic upward variance.” Op. Br. at 23 (heading
format omitted). In his view, “[t]he district court’s primary justification” for
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the length of the sentence was its concern about the “dangerousness of
fentanyl,” but Mr. Garley claims the court did not adequately explain this
rationale. Op. Br. at 23 (quoting RIII.46). We readily reject this argument.
1
“[S]ubstantive reasonableness review broadly looks to whether the
district court abused its discretion in weighing permissible § 3553(a) factors
in light of the ‘totality of the circumstances.’” United States v. Sayad, 589
F.3d 1110, 1118 (10th Cir. 2009) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)); see also United States v. Williams, 10 F.4th 965, 977 (10th
Cir. 2021) (“We review substantive reasonableness for an abuse of
discretion.”). On appeal, “[w]e do not reweigh the sentencing factors[.]”
United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019). Rather, “[w]e
will defer to the district court’s judgment so long as it falls within the realm
of rationally available choices.” United States v. Ware, 93 F.4th 1175, 1180
(10th Cir. 2024) (ellipsis and internal quotation marks omitted). We
recognize a “rebuttable presumption of reasonableness” only when a
sentence is within—not outside—a properly calculated Guidelines range.
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
In assessing substantive reasonableness, we closely review the
sentencing court’s explanation for the length of the sentence imposed. See
United States v. Barnes, 890 F.3d 910, 917 (10th Cir. 2018). “A sentence is
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more likely to be within the bounds of reasonable choice when the court has
provided a cogent and reasonable explanation for it.” Id. A “major
variance[,]” we have explained, “should be supported by a more significant
justification than a minor one.” United States v. Cookson, 922 F.3d 1079,
1092 (10th Cir. 2019) (brackets omitted) (quoting Gall, 552 U.S. at 50); see,
e.g., United States v. Rocha, 145 F.4th 1247, 1275 (10th Cir. 2025)
(“assum[ing] . . . for purposes of [the court’s] analysis that the” 100 percent
upward variance “was significant”); United States v. Guevara-Lopez, 147
F.4th 1174, 1180–81, 1192 (10th Cir. 2025) (considering a 100 percent
upward variance to be “major”).
We have recognized “a blurring of the line between procedural and
substantive reasonableness when it comes to the district court’s explanation
for a given sentence.” Cookson, 922 F.3d at 1090; see also Crosby, 119 F.4th
at 1248 (acknowledging the “murky nature of the distinction between
procedural and substantive reasonableness when a challenge is based on
the district court’s explanation of the § 3553(a) factors” (internal quotation
marks omitted)); Guevara-Lopez, 147 F.4th at 1183 (explaining how “[t]he
district court’s explanation implicates both procedural and substantive
reasonableness”). Our precedent also provides clarity on this front: “[W]e
rely on the district court’s procedurally-required explanation in order to
conduct meaningful appellate review of a sentence’s substantive
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reasonableness. A limited, brief, or inconsistent explanation hinders our
ability to do so, and therefore puts at risk the substantive reasonableness
of any decision the district court reached.” Cookson, 922 F.3d at 1091
(brackets, internal quotation marks, and citations omitted). To synthesize,
when substantive reasonableness is at issue, we consider the district court’s
explanation not in service of its procedural duty “to adequately explain the
chosen sentence[,]” Gall, 552 U.S. at 51, but in terms of our appellate duty
to meaningfully review the length of the sentence imposed. 13 See Barnes,
13 It bears repeating that when the challenge on appeal implicates a
district court’s duty to explain the sentence under Gall, we will not forgo our usual understanding that procedural reasonableness challenges are subject to ordinary principles of waiver and forfeiture. See Gall, 552 U.S. at 51 (“[T]he appellate court . . . must first ensure that the district court committed no significant procedural error, such as . . . failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.”). We remind defense counsel that a “defendant need not object after pronouncement of sentence based on substantive reasonableness.” United States v. Jackson, 82 F.4th 943, 949 (10th Cir. 2023) (internal quotation marks omitted); Holguin-Hernandez v. United States, 589 U.S. 169, 174–75 (2020) (“A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is ‘greater than necessary’ has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.”). But procedural reasonableness challenges, by contrast, generally will require a contemporaneous objection to avoid being reviewed for plain error. United States v. Chavez-Morales, 894 F.3d 1206, 1213 (10th Cir. 2018) (“[T]o preserve a procedural reasonableness challenge based on the sentencing court’s failure to consider and explain its reasons for rejecting a defendant’s argument for a lesser sentence, the defendant needed to alert the court that its explanation was inadequate, which ordinarily would require an objection after the court had rendered sentence.” (internal quotation marks omitted)).
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890 F.3d at 924 (Bacharach, J., dissenting) (observing that, when
conducting substantive reasonableness review, “we are not considering the
adequacy of the district court’s explanation. Instead, we are considering the
adequacy of the sentences themselves”). We proceed with this
understanding.
2
a
Mr. Garley first contends his above-Guidelines sentence is
substantively unreasonable because the district court “did not adequately
explain its significant variance upward[.]” 14 Op. Br. at 2. Mr. Garley’s 240-month sentence is 100 percent higher than the top of the advisory
Guidelines range, so it can fairly be described as a major variance. And it
is obviously outside the Guidelines range, so it is not subject to a rebuttable
14 In his opening brief, Mr. Garley briefly asserts “[t]he district court’s
explanation implicates both procedural and substantive reasonableness, because the explanation is a procedural requirement and is relevant to whether the length of the sentence is substantively reasonable.” Op. Br. at 21 (quoting Guevara-Lopez, 147 F.4th at 1183). But at oral argument, counsel clarified Mr. Garley was not advancing “a procedural challenge,” but only taking “issue with the substance of the explanation.” Oral Arg. at 12:47–:58. To the extent Mr. Garley attempts to raise a procedural challenge based on the failure to explain the sentence, such an argument is waived. United States v. Bradley, 97 F.4th 1214, 1221 (10th Cir. 2024) (“When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise.” (internal quotation marks omitted)).
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presumption of reasonableness. Still, we are not persuaded by Mr. Garley’s
argument.
Section 3553(a) instructs a sentencing judge to “impose a sentence
sufficient, but not greater than necessary, to comply with the purposes [of
sentencing] set forth in” the statute. 18 U.S.C. § 3553(a). To arrive at such
a parsimonious sentence, a district court must make an individualized
assessment by considering the following factors: (1) “the nature and
circumstances of the offense and the history and characteristics of the
defendant”; (2) the need for the sentence to (a) “reflect the seriousness of
the offense,” “promote respect for the law,” and “provide just punishment
for the offense”; (b) “afford adequate deterrence,” (c) “protect the public from
further crimes of the defendant,” and (d) provide rehabilitation; (3) the
sentences legally available; (4) the Sentencing Guidelines; (5) the
Sentencing Commission’s policy statements; (6) “the need to avoid
unwarranted sentence disparities”; and (7) “the need to provide
restitution[.]” Id.
Here, the district court said it had considered all the § 3553(a) factors
and discussed most of them expressly at sentencing. In terms of the nature
and circumstances of the offense, the district court stated that fentanyl is a
particularly “dangerous[]” drug. RIII.46; 18 U.S.C. § 3553(a)(1). The district
court thoroughly explained its opinion that the Guidelines do not
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adequately account for the “dangerousness of fentanyl.” See RIII.46–47. It
cited several cases from other circuits endorsing the imposition of an
upward variance based on the dangers of fentanyl and its own prior decision
elaborating on the Guidelines’ “illogical” and asymmetrical treatment of
fentanyl and methamphetamine. RIII.46–47. Based on this policy
disagreement, the district court observed the higher Guidelines range that
would have applied if Mr. Garley had possessed an equal amount of
methamphetamine as one data point in its holistic evaluation. 15
The district court discussed Mr. Garley’s history and characteristics
and appeared particularly concerned with protecting the public from Mr.
Garley’s crimes because of his “serious crime spree within a week[.]”
RIII.48; see 18 U.S.C. § 3553(a)(2)(C). It also recognized the Guidelines “do
not adequately take into account” the unique circumstances of Mr. Garley’s
case. RIII.48; see 18 U.S.C. § 3553(a)(6). Under these circumstances, the
15 Mr. Garley frames the district court’s reference to the
methamphetamine guidelines as a “substitution,” suggesting the district court actually used the analogous methamphetamine Guidelines range to calculate his sentence but failed to account for his three-level reduction for acceptance of responsibility. Reply Br. at 2, 7. To the extent Mr. Garley is suggesting the district court miscalculated his advisory Guidelines range, that would be a procedural error, but such a challenge is forfeited because he did not raise it before the district court and waived because he does not seek plain error review on appeal. See Bradley, 97 F.4th at 1221. Even if preserved, Mr. Garley’s position is meritless. This is not a case where the “district court essentially abandoned consideration of the advisory guidelines range and substituted a [different] calculation[.]” Allen, 488 F.3d at 1259.
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district court’s reason for imposing an upward variance is obvious from the
sentencing transcript and squarely supports the length of the sentence
imposed.
b
Mr. Garley next insists the district court’s “broad disagreement with
the fentanyl guideline” fails to justify the upward variance. Reply Br. at 1.
We disagree. “[T]he district court need not afford equal weight to each
§ 3553(a) factor[.]” Cookson, 922 F.3d at 1094; see also United States v.
Lopez-Macias, 661 F.3d 485, 492 (10th Cir. 2011) (explaining courts “should
engage in a holistic inquiry” when considering the statutory sentencing
factors (internal quotation marks omitted)). “[N]o algorithm exists that
instructs the district judge how to combine the factors or what weight to put
on each one.” Barnes, 890 F.3d at 916. Of course, a district court should not
solely rely on just “one § 3553(a) factor without addressing other relevant
factors.” Crosby, 119 F.4th at 1247. That is not what happened here, as we
have discussed. Mr. Garley’s argument amounts to mere “disagree[ment]
with the way in which the district court weighed the 18 U.S.C. § 3553(a)
sentencing factors[.]” United States v. DeRusse, 859 F.3d 1232, 1240 (10th
Cir. 2017). We will not reweigh the sentencing factors on appeal. See United
States v. Lawless, 979 F.3d 849, 856 (10th Cir. 2020) (refusing to “reweigh
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the district court’s balancing of the § 3553(a) factors . . . because reweighing
the factors is beyond the ambit of our review”).
In sum, the district court “rested its sentence on the appropriate
considerations[,]” Kimbrough v. United States, 552 U.S. 85, 111 (2007), and
correctly framed its final determination in line with § 3553(a)’s overarching
instruction to “impose a sentence sufficient, but not greater than
necessary,” to accomplish the statutory sentencing goals, 18 U.S.C.
§ 3553(a). We reject Mr. Garley’s substantive reasonableness challenge.
III
We AFFIRM Mr. Garley’s sentence.
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25-2060, United States v. Garley
HARTZ, J., concurring
I fully join Judge Rossman’s opinion. I write separately only to note that the
Supreme Court opinion that has been read as saying that claims of substantive
reasonableness need not be preserved does not really say that. The final paragraph of
Holguin-Hernandez v. United States, 589 U.S. 169, 175 (2020), says that the government
and amicus:
ask us to decide when a party has properly preserved the right to make
particular arguments supporting its claim that a sentence is unreasonably
long. We shall not consider these matters, however, for the Court of Appeals
has not considered them. We hold only that the defendant here properly
preserved the claim that his 12-month sentence was unreasonably long by
advocating for a shorter sentence and thereby arguing, in effect, that this
shorter sentence would have proved ‘sufficient,’ while a sentence of 12
months or longer would be ‘greater than necessary’ to ‘comply with’ the
statutory purposes of punishment.
Thus, that opinion leaves open, for example, whether Defendant’s argument that the
district court’s disagreement with the fentanyl guidelines rendered the sentence
substantively unreasonable was a “particular argument” that needed to be preserved
below—even if it is characterized as a substantive-reasonableness (rather than a
procedural-reasonableness) argument.