Affirmance Based on an Alternative § 3553(a) Variance When the District Court Gives Independent Rationales (Evans/Assumed-Error Harmlessness Applied)

Case: United States v. Robert Lee Strother (4th Cir. Jan. 6, 2026) (unpublished)  |  Court: U.S. Court of Appeals for the Fourth Circuit

1. Introduction

This appeal arises from an exceptionally violent sequence of offenses committed by Robert Lee Strother while on post-release supervision for state felonies involving firearms and assaults on police officers. In 2020, Strother used an AR-style rifle to shoot a police officer responding to a 911 call, fled, then attempted to steal a truck by confronting a stranger and shooting him three times. He was arrested the following day after again pointing his rifle at police officers.

Strother pleaded guilty to: (1) felon-in-possession; (2) carjacking resulting in serious bodily injury; and (3) discharging a firearm in furtherance of a crime of violence (the carjacking) under 18 U.S.C. § 924(c). At sentencing, the district court calculated an advisory range of 360–420 months on Counts 1 and 2, plus a mandatory consecutive sentence of at least 120 months on Count 3, yielding a top-of-range total of 540 months by the parties’ understanding.

The central appellate issue was not whether the district court could vary upward in principle, but how the Fourth Circuit should treat a sentence where the district court offered two independent rationales for the same above-Guidelines term: (i) an upward “departure” under the Guidelines and (ii) an alternative “variance” under 18 U.S.C. § 3553(a).

2. Summary of the Opinion

The Fourth Circuit affirmed a 720-month total sentence. The court declined to resolve Strother’s principal claim—that the district court’s upward departure double-counted facts already captured by the Guidelines—because the district court separately and clearly imposed the same sentence as an “alternative variant sentence” under § 3553(a). Applying the rule of United States v. Evans, the panel held that where independent rationales support the deviation, the sentence stands if the alternative § 3553(a) rationale is procedurally and substantively reasonable.

The panel further held that Strother did not meaningfully challenge procedural reasonableness; he had conceded the Guidelines calculations below, thereby forfeiting (if not waiving) a later attack on that calculation. On substantive reasonableness, the panel found the upward variance supported by a thorough individualized assessment emphasizing the severity of the conduct, recidivism and supervision failures, deterrence, and the need to protect the public.

3. Analysis

3.1. Precedents Cited

The opinion is structured as an application—and reinforcement—of existing Fourth Circuit and Supreme Court sentencing doctrine, with Evans as the controlling in-circuit template.

• United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008)
  Evans supplies the decisive rule: when the district court provides “two or more independent rationales” for a deviation, the appellate court may affirm if one rationale (here, § 3553(a)) independently supports the sentence, even if the other (Guidelines departure) might be flawed. Strother mirrors Evans: a challenged departure plus an alternative § 3553(a) variance.
• United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009)
  Cited as additional Fourth Circuit support for affirming where the § 3553(a) analysis independently sustains the sentence notwithstanding disputes over departures.
• United States v. McKinnie, 21 F.4th 283, 289 (4th Cir. 2021)
  Used to clarify the doctrinal difference: “departures” come from the Guidelines’ own provisions, while “variances” are deviations based on statutory sentencing factors.
• Kimbrough v. United States, 552 U.S. 85, 90 (2007) and Kimbrough, 552 U.S. at 101
  Reinforces that the Guidelines are advisory and only one factor among several; also confirms the permissibility of variances grounded in policy disagreements with the Guidelines.
• United States v. Booker, 543 U.S. 220, 264 (2005) and Booker, 543 U.S. at 261-64
  Establishes the advisory nature of the Guidelines and the framework of appellate reasonableness review (procedural and substantive).
• Rita v. United States, 551 U.S. 338, 351 (2007)
  Supports the proposition that a district court may vary if it concludes a Guidelines sentence fails to reflect § 3553(a) considerations.
• Gall v. United States, 552 U.S. 38, 41 (2007) and Gall, 552 U.S. at 49 and Gall, 552 U.S. at 51
  Provides the governing standards: deferential abuse-of-discretion review for all sentences, procedural requirements (including correct calculation and party opportunity to argue), and rejection of any presumption of unreasonableness for significant variances.
• United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012) and Hargrove, 701 F.3d at 164
  Used as a comparator showing that thorough individualized § 3553(a) analysis can sustain a substantial upward variance; also invoked to reject a presumption that large deviations are unreasonable.
• United States v. Florentine, 147 F.4th 477, 484 (4th Cir. 2025) and Florentine, 147 F.4th at 483
  Two roles: (1) labels Strother’s sentence a “substantial upward variance” relative to the top of the advisory range; (2) articulates limits on “insulating” sentences via generic same-sentence statements—clarified here as distinguishing the two prongs of assumed-error harmlessness review.
• United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011)
  Cited for the breadth of district court discretion in weighting § 3553(a) factors.
• United States v. McDonald, 850 F.3d 640, 645 (4th Cir. 2017) and United States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir. 2014)
  Both are used to demonstrate that detailed explanations emphasizing deterrence, seriousness, and public protection can justify above-Guidelines sentences and that courts may consider but discount purported mitigation.
• United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006)
  Supports that a sentencing court can “clearly invoke” § 3553(a) without explicitly citing it, so long as the reasoning tracks statutory factors.
• United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)
  Provides the logic for “assumed error harmlessness” review: when the district court would impose the same sentence and that alternative sentence would be affirmed, remand is pointless.
• United States v. Coby, 65 F.4th 707, 712 (4th Cir. 2023)
  Cited to confirm the controlling Guidelines Manual is the one in effect at sentencing—relevant because the opinion notes later Guidelines changes removing departure provisions.
• United States v. Cristobal, 293 F.3d 134, 147 (4th Cir. 2002)
  Cited for the proposition that the § 924(c)(1)(A)(iii) count authorizes a sentence “up to life imprisonment,” framing the statutory seriousness and available ceiling.

3.2. Legal Reasoning

The court’s reasoning proceeds in three steps.

1. Independent-rationale framework controls.
   The district court gave two separate justifications for the same 720-month term: an upward departure and, alternatively, a § 3553(a) variance. Under United States v. Evans, the Fourth Circuit need not decide whether the departure was correct if the variance independently supports the sentence.
2. No legal impediment to a variance of this magnitude, provided reasonableness is satisfied.
   Citing Booker, Kimbrough, and Rita, the court emphasizes that Guidelines are advisory and can be rejected if they fail to reflect § 3553(a) considerations (including policy disagreements). The dispositive constraint is procedural and substantive reasonableness, reviewed deferentially under Gall.
3. The alternative § 3553(a) sentence was procedurally and substantively reasonable.
   Procedurally, Strother’s attempt to dispute the Guidelines calculation was foreclosed by his concession at sentencing (treated as forfeiture “if not waiver”). Substantively, the district court’s explanation—extreme seriousness (“[o]ther than murdering”), criminal history and supervision failures, public protection, and deterrence, while acknowledging mitigation and crediting the guilty plea—constituted the type of individualized assessment repeatedly upheld in Fourth Circuit cases such as Hargrove, McDonald, and Gomez-Jimenez.

Guidelines-system context noted by the panel: The opinion flags that in 2025 the Sentencing Commission “amended the Guidelines Manual to remove departures” (U.S.S.G. App. C, amend. 836), deleting U.S.S.G. §§ 5K2.0–5K2.24, but holds that change irrelevant here because U.S.S.G. § 1B1.11(a) requires using the Guidelines Manual in effect at sentencing (citing United States v. Coby).

3.3. Impact

Although unpublished and thus “not binding precedent,” the opinion is practically significant in three ways within Fourth Circuit sentencing practice:

• Reinforcement of Evans-style affirmance. The decision underscores that a well-articulated alternative variance will often moot departure disputes on appeal. In practical effect, it incentivizes district courts to provide an explicit “alternative variant sentence” explanation tied to § 3553(a).
• Clarification of “assumed error harmlessness” mechanics. By addressing Strother’s argument for heightened review and parsing Florentine, the panel emphasizes that a “same sentence” statement alone is insufficient; the alternative sentence must also be independently reasonable. But if both prongs are met, remand is unwarranted.
• Post-2025 Guidelines administration. The opinion’s footnote about the Sentencing Commission’s removal of “departures” foreshadows a future in which litigants may frame arguments primarily in variance terms. Even so, the court’s core message is continuity: appellate review focuses on reasonableness and the adequacy of § 3553(a) explanation.

4. Complex Concepts Simplified

• Guidelines “departure” vs. statutory “variance.”
  A departure is an adjustment authorized by the Guidelines’ own rules (historically in Chapter 5K). A variance is a non-Guidelines sentence justified by the statutory sentencing factors in 18 U.S.C. § 3553(a). The same number of months can be imposed as either, but the legal justification differs.
• Procedural vs. substantive reasonableness.
  Procedural reasonableness asks whether the judge followed the required steps (e.g., correct Guidelines calculation, allowing argument, explaining the sentence). Substantive reasonableness asks whether the length of the sentence is reasonable given the § 3553(a) factors and the totality of the circumstances.
• “Assumed error harmlessness.”
  This is an appellate shortcut: the court may assume (without deciding) a potential error occurred (e.g., a departure mistake) and still affirm if (1) the district judge would impose the same sentence anyway and (2) that alternative sentence would be procedurally and substantively reasonable.
• Waiver/forfeiture of Guidelines issues.
  If a defendant affirmatively concedes an issue at sentencing (such as the Guidelines range), appellate courts often treat later challenges as forfeited or waived, narrowing what can be argued on appeal.
• Why “mandatory consecutive” matters for § 924(c).
  Under 18 U.S.C. § 924(c)(1)(D)(ii), the firearm sentence cannot run concurrently with the other counts. That structure can elevate total exposure and shapes how courts describe the “top of the range” and the degree of any variance.

5. Conclusion

United States v. Robert Lee Strother applies the Fourth Circuit’s established rule that where a district court offers independent justifications for an above-Guidelines sentence—particularly an explicit alternative § 3553(a) variance—an appellate court may affirm without resolving contested departure issues so long as the alternative sentence is itself reasonable. The decision also illustrates how thorough, factor-linked explanations emphasizing seriousness, deterrence, and protection of the public can sustain substantial upward variances under deferential abuse-of-discretion review, and it situates that approach within both the Supreme Court’s advisory-Guidelines framework and the Fourth Circuit’s “assumed error harmlessness” doctrine.