Affirmance of a Life Upward Variance for Extreme Violence and Lack of Remorse, and Waiver of Unbriefed Plain-Error Challenges

Introduction

In United States v. Murphy (10th Cir. Jan. 21, 2026) (unpublished order and judgment), the Tenth Circuit affirmed a life sentence imposed after a federal jury convicted Patrick Dwayne Murphy of second-degree murder. The district court, resentencing after the Tenth Circuit reversed Murphy’s kidnapping convictions, moved from a Guidelines range of 168–210 months to life imprisonment by (1) departing upward under U.S.S.G. §§ 5K2.0(a)(1)(A) and 5K2.8 and (2) varying upward under 18 U.S.C. § 3553(a).

The appeal centered on whether the district court’s upward departure and/or upward variance was reasonable, and whether the court adequately explained its variance. The panel (Phillips, Kelly, and Moritz, JJ.) held that the variance was procedurally and substantively reasonable and, critically, that it could affirm without separately validating the departure once the variance independently supported the life sentence.

Summary of the Opinion

  • Procedural holding: Murphy’s claim that the district court inadequately explained the upward variance was unpreserved and therefore subject to plain-error review; because Murphy did not brief plain error after the government raised it, the argument was treated as waived. In any event, the district court gave an adequate explanation.
  • Substantive holding: The life sentence was substantively reasonable given the “particularly gruesome and cruel” manner of the killing, Murphy’s lack of remorse, and the need for the sentence to reflect the offense’s seriousness and provide just punishment under § 3553(a).
  • Disposition: Affirmed. Because the variance was valid, the court did not need to decide whether the upward departure was independently warranted.

Analysis

Precedents Cited

1) Sentencing framework: procedural and substantive reasonableness

  • Gall v. United States, 552 U.S. 38 (2007): The backbone of modern federal sentencing review—abuse-of-discretion review with a two-step inquiry (procedural error, then substantive reasonableness). The panel relied on Gall both for the standard of review and for the requirement that a judge provide an explanation for deviations from the Guidelines.
  • Rita v. United States, 551 U.S. 338 (2007): Used to define the “enough explanation” requirement—district courts must show they considered the parties’ arguments and have a reasoned basis. The panel also invoked Rita to differentiate the explanation required for a variance (“ordinary explanation of judicial reasons”) from older, more mechanical departure-explanation rules.

2) Preservation, plain error, and waiver

  • United States v. Lucero, 747 F.3d 1242 (10th Cir. 2014): Establishes that unpreserved procedural sentencing challenges are reviewed for plain error.
  • United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006): Supports the preservation principle that an objection to an inadequate sentencing explanation must be raised when the court provides an opportunity, because it would allow the court to correct the omission.
  • United States v. Veneno, 107 F.4th 1103 (10th Cir. 2024): The key waiver doctrine applied here—when plain error governs but the appellant fails to argue plain error in briefing (even after the issue is flagged), the claim is waived.

3) Adequacy of explanation and appellate review

  • United States v. Lente, 759 F.3d 1149 (10th Cir. 2014): Reinforces the Rita requirement that the explanation be sufficient for appellate review.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024), and United States v. Cookson, 922 F.3d 1079 (10th Cir. 2019): Cited for the practical point that thin explanations can impede substantive-reasonableness review, underscoring why explanation matters even when the standard is deferential.

4) Substantive reasonableness and deference

  • United States v. Alapizco-Valenzuela, 546 F.3d 1208 (10th Cir. 2008), quoting United States v. Conlan, 500 F.3d 1167 (10th Cir. 2007): Defines substantive reasonableness as whether the sentence length is reasonable in light of all circumstances and § 3553(a).
  • United States v. Chavez, 723 F.3d 1226 (10th Cir. 2013), quoting United States v. McComb, 519 F.3d 1049 (10th Cir. 2007): Supplies the “bounds of permissible choice” formulation that anchors the panel’s deference to the district court’s weighing of aggravating facts.

5) Departures vs variances; affirmance based on either

  • United States v. Barnes, 141 F.4th 1156 (10th Cir. 2025): Central to the court’s structure: (i) clarifies the conceptual distinction between departures (Guidelines framework) and variances (§ 3553(a) analysis), and (ii) provides the decisive appellate shortcut—if the variance is valid, the appellate court “need not consider” whether the departure was separately warranted.
  • United States v. Vazquez-Garcia, 130 F.4th 891 (10th Cir. 2025): Quoted within Barnes for the departures/variances distinction.
  • United States v. DeRusse, 859 F.3d 1232 (10th Cir. 2017): Used (via Barnes) to explain harmlessness—errors in departure analysis may not matter where the court would impose the same sentence based on a valid variance.

6) Older departure methodology (distinguished, not applied)

  • United States v. Kelly, 1 F.3d 1137 (10th Cir. 1993), and United States v. Flinn, 987 F.2d 1497 (10th Cir. 1993): Represent the traditional rule requiring district courts to articulate reasons for the degree of a Guidelines departure. The panel distinguished these as “particular to departure sentences,” not the governing standard for variances.
  • United States v. Robertson, 568 F.3d 1203 (10th Cir. 2009), and United States v. Begaye, 635 F.3d 456 (10th Cir. 2011): Cited in a concluding footnote to outline departure-review mechanics and potential plain-error issues—then effectively sidelined because the variance independently supported the life sentence.

7) Background jurisdiction and prior appeal posture

  • United States v. Murphy, 100 F.4th 1184 (10th Cir. 2024): The prior federal appeal reversing Murphy’s kidnapping convictions and vacating the sentence; it sets up the resentencing context and the Guidelines range applicable to the remaining second-degree murder count.
  • Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), aff’d sub nom., Sharp v. Murphy, 591 U.S. 977 (2020): Establish the jurisdictional backstory—Murphy’s state conviction and death sentence were vacated because the state lacked jurisdiction (Indian defendant; crime in Indian country), leading to federal prosecution.

8) Guidelines evolution post-Booker (contextual, but notable)

  • United States v. Booker, 543 U.S. 220 (2005): Referenced in a Guidelines commentary note explaining the Sentencing Commission’s 2025 deletion of certain departure provisions, acknowledging the post-Booker shift toward variances.
  • United States v. Platero, 996 F.3d 1060 (10th Cir. 2021): Cited for the temporal rule that courts apply the Guidelines in effect at sentencing (supporting use of then-operative departure provisions on remand).

Legal Reasoning

1) The court’s “either-is-enough” affirmance path

The opinion’s operational rule is straightforward: when a district court imposes both an upward departure and an upward variance, and the appellant challenges both, the court of appeals may affirm the sentence if it concludes that either the variance or the departure independently justifies the sentence—here, the panel relied on United States v. Barnes to resolve the case on the variance alone.

2) Procedural reasonableness: explanation and preservation

Murphy claimed the district court did not adequately explain the upward variance. The panel rejected that claim on two reinforcing grounds:

  • Preservation: Because Murphy did not object when the district court invited “anything further” (twice), any procedural objection to the adequacy of explanation was unpreserved, invoking plain-error review under United States v. Lucero and United States v. Lopez-Flores.
  • Waiver of plain error: Once the government argued plain error, Murphy had to engage that standard. His failure to do so resulted in waiver under United States v. Veneno.

Even beyond waiver, the panel found no procedural error: the court explicitly tied the variance to (i) the “gruesome and heinous” facts and (ii) Murphy’s lack of remorse—enough under Rita v. United States and Gall v. United States to permit meaningful review.

3) Substantive reasonableness: life sentence as permissible choice

The panel upheld the life variance as within the “bounds of permissible choice” (per United States v. Chavez / United States v. McComb), focusing on three connected § 3553(a) considerations:

  • Nature and circumstances of the offense (§ 3553(a)(1)): The victim was dragged from a vehicle while unconscious, beaten, his throat slit, mutilated, and left to bleed out—facts the panel treated as legitimately aggravating.
  • Need for just punishment and seriousness (§ 3553(a)(2)(A)): The brutality and degradation inherent in the conduct supported a sentence aimed at reflecting seriousness and providing just punishment.
  • Defendant characteristics (§ 3553(a)(1)): The district court relied on lack of remorse (including bragging and minimizing involvement). The panel rejected the argument that this improperly punished Murphy for going to trial or testifying, emphasizing the record did not show retaliation for exercising trial rights.

The court also dismissed Murphy’s argument that a life sentence was tantamount to punishment for first-degree murder: the district court did not invoke “premeditation” and grounded its decision in brutality and remorse-related considerations directly relevant to § 3553(a).

Impact

  • Sentencing appeals: preserve procedural claims or lose them. The decision reinforces that defendants must object to an inadequate explanation when given an opportunity; otherwise, they face plain error and—if they fail to brief it—waiver.
  • Variance-first appellate review. Echoing Barnes, the case illustrates an efficient appellate path: where a valid variance supports the sentence, alleged errors in departure analysis may become irrelevant or harmless.
  • Brutality and lack of remorse as powerful variance drivers. The opinion signals that extreme violence and demonstrated lack of remorse can justify a dramatic upward variance—including to life—even from a markedly lower advisory range, so long as the district court links those facts to § 3553(a).
  • Post-2025 Guidelines environment. Although the case applied earlier Guidelines, the court’s discussion of the Sentencing Commission’s deletion of some departure provisions underscores the broader system trend: courts may increasingly frame aggravating facts as § 3553(a) variance grounds rather than formal departures.

Complex Concepts Simplified

  • Guidelines “departure” vs “variance”: A departure is an adjustment authorized by the Sentencing Guidelines themselves (historically with specific departure rules). A variance is a non-Guidelines sentence based on the judge’s application of the statutory factors in 18 U.S.C. § 3553(a).
  • Procedural vs substantive reasonableness: Procedural concerns the process—correct Guideline calculation, consideration of arguments, and an adequate explanation. Substantive concerns the outcome—whether the sentence length is reasonable under § 3553(a).
  • Plain-error review: If a party fails to object in the district court, the court of appeals applies a stricter test; the appellant must show an obvious error that mattered to the outcome and undermined fairness. If the appellant does not argue plain error when required, the argument can be treated as waived.
  • “Lack of remorse” at sentencing: Courts may consider remorse (or its absence) as part of a defendant’s “history and characteristics.” The constitutional line is crossed if a court punishes a defendant for exercising the right to trial; here, the panel found no such retaliation.

Conclusion

United States v. Murphy affirms (as a persuasive, nonprecedential disposition) two practical principles in federal sentencing review: (1) an appellate court may affirm a sentence based solely on a valid upward variance without reaching disputed departure issues, and (2) procedural challenges to sentencing explanations must be preserved—and if plain error applies, it must be briefed—or the claim will fail. On the merits, the decision underscores that exceptionally brutal offense conduct combined with demonstrated lack of remorse can justify a life upward variance under § 3553(a), even from a substantially lower advisory Guidelines range.