§ 3553(a)(6) Targets National (Not Intra-District) Disparities; Circuit Splits Defeat “Plain” Guideline Error

I. Introduction

Christian Matthew Cole pleaded guilty (without a plea agreement) to drug trafficking offenses under 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), and 846. The PSR described a drug-trafficking operation involving methamphetamine and fentanyl, a vehicle chase, and searches that uncovered drugs and paraphernalia. The PSR also included information that Cole had provided drugs to an inmate in a local detention facility.

The district court calculated an advisory Guidelines range (revised PSR) of 324–405 months and then varied downward three levels to impose 240 months. On appeal, Cole raised three sentencing challenges:

• a Guidelines challenge to a two-level enhancement under U.S.S.G. § 2D1.1(b)(4) (distribution in a detention facility);
• a procedural reasonableness challenge, asserting the district court inadequately considered sentencing disparities compared with other District of Wyoming cases; and
• a substantive reasonableness challenge based on the same alleged intra-district disparity.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held:

• The § 2D1.1(b)(4) argument failed under plain-error review because any error was not “plain”: there was no controlling Supreme Court or Tenth Circuit precedent defining “the object of the offense” in this context, and other circuits were split.
• The procedural challenge failed because § 3553(a)(6) concerns nationwide disparities—not disparities among sentences imposed within the same judicial district—and the record showed the district court did consider and reasonably discount the defendant’s “select[ed] cases out of this district.”
• The substantive challenge failed for the same reason (misconception of § 3553(a)(6)), because the proposed comparators were not truly similarly situated (including Rule 11(c)(1)(C) pleas and different criminal histories), and because a below-Guidelines, downwardly variant sentence receives a rebuttable presumption of reasonableness that Cole did not overcome.

III. Analysis

A. Precedents Cited

1. Standards of review: plain error and reasonableness

• United States v. Smith (legal Guidelines interpretation de novo; factual findings for clear error): frames the baseline appellate posture on Guidelines issues.
• United States v. Marquez: cited for applying plain-error review to unpreserved sentencing claims.
• United States v. Dermen (quoting United States v. Cristerna-Gonzalez): supplies the four-part plain-error test used to dispose of the enhancement claim.
• United States v. Rosales-Miranda (quoting United States v. Bader and United States v. McGehee): emphasizes plain error is “rigorous” and “demanding.”
• Gall v. United States and United States v. Patton: anchor abuse-of-discretion review for procedural and substantive reasonableness.
• United States v. Smart: distinguishes procedural methodology from substantive length; also limits appellate reweighing of § 3553(a) factors.
• United States v. Lawless (quoting United States v. Peña): defines substantive unreasonableness (“arbitrary, capricious, whimsical, or manifestly unreasonable”).
• United States v. Maldonado-Passage: restates substantive reasonableness as whether the sentence fairly reflects relevant factors and circumstances.
• United States v. Crosby and United States v. Barnes: explain overlap between procedural and substantive review where the challenge targets the court’s § 3553(a) explanation.

2. “Plainness” and the effect of missing precedent / circuit splits

• United States v. Thornburgh (quoting United States v. Whitney and United States v. Ruiz-Gea): states that an error is “plain” only if clear/obvious under “current, well-settled law,” usually requiring Supreme Court or Tenth Circuit resolution.
• United States v. Teague: provides the decisive move—where circuits are split and no controlling precedent exists, the Tenth Circuit “cannot find plain error.”
• United States v. Berryhill: supports affirming at plain-error prong two without reaching prongs three and four.
• United States v. Zubia-Torres: used in a waiver/forfeiture discussion (the panel assumed forfeiture and proceeded under plain-error review).

3. Scope of U.S.S.G. § 2D1.1(b)(4) and the cited inter-circuit disagreement

The panel did not resolve the merits of Cole’s reading of § 2D1.1(b)(4); instead, it relied on the absence of controlling precedent and the presence of a circuit split, described through these authorities:

• United States v. Dugger (4th Cir.): described as holding, in a fact-bound ruling, that the enhancement does not apply to in-prison distribution unrelated to the underlying conviction.
• United States v. Robinson (6th Cir.) (unpublished): described as reaching a similar conclusion to Dugger.
• United States v. Vanderpool (8th Cir.): described as requiring only “intent to distribute a controlled substance in a correctional facility.”
• United States v. Carlton (5th Cir.) (unpublished): described as rejecting a narrow construction.
• United States v. Wallis (9th Cir.) (unpublished): described as upholding the enhancement when prison distribution was “one object” of the conspiracy.
• United States v. Ruelas and United States v. Wells (10th Cir.) (nonprecedential): noted as prior Tenth Circuit discussions that affirmed application but did not “delineate[] the outer bounds” of the enhancement.

4. § 3553(a)(6) and the “nationwide” disparity principle

• United States v. Zapata: used to ground the panel’s conclusion that § 3553(a)(6) is concerned with eliminating disparities “nationwide.”
• United States v. Guevara-Lopez (quoting United States v. Martinez): expressly states that the disparity inquiry is “disparities nationwide among defendants with similar records and Guideline calculations.”
• United States v. Adams (quoting United States v. Damato): reiterates that § 3553(a)(6) is limited to nationwide disparities.
• United States v. Velazquez-Aguilera (unpublished): cited persuasively for the point that courts are not required to deviate from the Guidelines because other judges in the same district have done so.
• United States v. Bradley (6th Cir.): cited for the same proposition (not intra-district disparities).

5. “Similarly situated,” comparator problems, and plea agreements

• United States v. Gallegos: stands for the idea that some disparities are “explicable,” undercutting a disparity argument.
• United States v. St. Julian: frames “similarly situated” in terms of offense level and criminal history category.
• United States v. Docampo (quoting United States v. Mateo-Espejo): the “apples to apples” comparator requirement; invoked to show why Cole’s comparators (including Rule 11(c)(1)(C) plea dispositions and different criminal histories) were not persuasive.

6. Presumption of reasonableness for below-Guidelines sentences

• United States v. Balbin-Mesa: provides that a below-Guidelines sentence is entitled to a rebuttable presumption of reasonableness when challenged by the defendant as too harsh.
• United States v. Carter: emphasizes the “hefty burden” to rebut that presumption; also notes even greater deference to a downward variance.

7. Other citations that provide context

• United States v. Hardy: used for a definitional point (“boat” as 1,000 fentanyl pills).
• United States v. Ellis: cited for using the Guidelines manual in effect (2023 edition) and for the practice of treating unpublished decisions as persuasive but nonbinding.

B. Legal Reasoning

1. The § 2D1.1(b)(4) enhancement: the case turns on “plainness,” not correctness

Cole’s theory was textual and narrowing: even if he distributed drugs in a detention facility, he claimed the enhancement should not apply unless the “object of the offense” was detention-facility distribution. The panel did not decide whether that interpretation is right. Instead, it treated the appeal as an unpreserved claim and resolved it at plain-error prong two.

The opinion’s operational rule is straightforward: where (i) neither the Supreme Court nor the Tenth Circuit has addressed the legal question, and (ii) other circuits disagree, any arguable Guidelines error is not “clear or obvious,” so it cannot be “plain.” The court applied United States v. Teague to conclude that the inter-circuit split on § 2D1.1(b)(4)’s scope foreclosed plain-error relief.

2. Procedural reasonableness: § 3553(a)(6) is not an intra-district parity mandate

Cole framed procedural error as a failure to “fully consider” sentences imposed on other “similarly situated defendants within the District of Wyoming.” The panel rejected that as misdirected: § 3553(a)(6) concerns unwarranted disparities in a national sense. The panel relied on United States v. Zapata and related cases to make the point that focusing on within-district outcomes is not what § 3553(a)(6) requires.

The panel also treated the record as independently defeating Cole’s procedural claim: the district court did engage with Cole’s cited Wyoming examples but found the PSR’s nationwide sentencing data “much more informational” and characterized the defense comparisons as “select[ed] cases out of this district.” In other words, the district court did not ignore disparity arguments; it rejected a particular kind of disparity proof as less probative of the statutory goal.

3. Substantive reasonableness: comparator mismatch + deference to a downward variance

Substantively, the panel held Cole was attacking the length of a below-Guidelines sentence based on a factor (§ 3553(a)(6)) he misread as intra-district. It further explained that even if the defense’s local comparators mattered, they were not “apples to apples”:

• Two comparators were sentenced under Rule 11(c)(1)(C) plea agreements—materially different from Cole’s open plea.
• Cole’s criminal history category (V) differed significantly from at least one comparator (category 2).

Finally, because the sentence was below the correctly calculated range and downwardly variant, the panel applied the rebuttable presumption of reasonableness from United States v. Balbin-Mesa and emphasized the “hefty burden” from United States v. Carter. Cole’s disagreement with the district court’s weighing of factors—particularly the court’s preference for nationwide data over a few local cases—did not overcome that deference under United States v. Smart.

C. Impact

Although nonprecedential, the opinion is likely to be cited persuasively for two practical propositions in Tenth Circuit sentencing appeals:

• Plain-error limitation amid inter-circuit disagreement: where the asserted Guidelines error depends on an unsettled interpretive question and other circuits disagree, appellants will struggle to satisfy prong two (“plain”)—even if their reading is plausible.
• Disparity arguments must be nationally oriented: the opinion reinforces that § 3553(a)(6) is aimed at nationwide disparity. Defense efforts to anchor sentencing mitigation primarily in intra-district comparisons (a few local cases) risk being discounted, especially where the record contains broader national data (e.g., PSR statistics).

The decision also underscores a strategic lesson: if counsel anticipates contesting a Guidelines enhancement like § 2D1.1(b)(4), preserving the issue is critical. Unpreserved legal questions—particularly those involving recognized circuit splits—often cannot clear the “plainness” threshold.

IV. Complex Concepts Simplified

• Plain error (four-part test): A defendant who did not object in the district court must show (1) an error, (2) that is “plain” (clear/obvious), (3) affecting substantial rights, and (4) seriously affecting the proceedings’ fairness or integrity. This opinion turned on part (2): if judges reasonably disagree (circuit split) and there is no controlling precedent, the error is not “plain.”
• Procedural vs. substantive reasonableness:
  • Procedural asks whether the court used the right process (correct Guidelines calculation, considered § 3553(a), explained the sentence).
  • Substantive asks whether the length is defensible given the facts and § 3553(a) factors.
• § 3553(a)(6) sentencing disparities: The factor targets “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” but Tenth Circuit doctrine treats this as a nationwide inquiry, not a requirement to match outcomes within a single district.
• Downward variance: A sentence below the advisory Guidelines range based on § 3553(a) factors (not a Guidelines “departure”). Here, the court varied downward three levels from the calculated range.
• Rule 11(c)(1)(C) plea agreement: A binding plea agreement that, if accepted, locks in an agreed sentence or range. The opinion treats such sentences as poor comparators for an open plea because the sentencing posture and constraints differ.
• “Similarly situated” defendants: For disparity analysis, courts often look for similarity in offense level (or comparable conduct) and criminal history category; large differences in criminal history or plea posture can make disparities “explicable,” not “unwarranted.”

V. Conclusion

United States v. Cole affirms a 240-month, below-Guidelines sentence and crystallizes two recurring appellate constraints. First, unpreserved Guidelines challenges often fail at plain-error prong two when the governing law is unsettled and circuits disagree—making any asserted error not “plain.” Second, § 3553(a)(6) is treated in the Tenth Circuit as a nationwide disparity safeguard, not an intra-district parity requirement; a district court acts within its discretion when it prioritizes national sentencing information over a handful of local comparator cases, particularly where comparators are not truly “similarly situated.”