Affirming Major Upward Variances to the Statutory Maximum: Deference to § 3553(a) Balancing and No Duty to Address Hypothetical Guideline Ranges for Dismissed Counts

Introduction

In United States v. Waitman, No. 24-6240 (10th Cir. Oct. 2, 2025), the Tenth Circuit affirmed a statutory-maximum sentence imposed after a substantial upward variance—roughly four times the advisory Guidelines range—for an assault resulting in serious bodily injury. The defendant, Billy Jack Waitman, pleaded guilty to assaulting his terminally ill, elderly mother while she lay in hospice care. The district court in the Western District of Oklahoma varied from a recommended range of 27 to 33 months to impose 120 months’ imprisonment, citing the unconscionable nature of the conduct and the inadequacy of the Guidelines to achieve the purposes of sentencing.

On appeal, Waitman challenged the substantive reasonableness of the sentence, arguing that the district court overemphasized the nature and circumstances of the offense and failed to adequately weigh mitigating factors, including his terminal health condition and minimal criminal history. He also contended that the court should have considered that even had he been convicted on all charged counts (including a dismissed attempted murder count), the resulting hypothetical Guidelines range would have been lower than the sentence imposed.

The Tenth Circuit affirmed. Applying abuse-of-discretion review, the panel held that the district court sufficiently explained its major variance under 18 U.S.C. § 3553(a), appropriately considered and discounted mitigation, and was not required to address hypothetical Guideline ranges tied to dismissed counts. Although issued as an Order and Judgment and therefore non-precedential, the decision can be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Summary of the Opinion

• The district court granted the Government’s motion for an upward variance and imposed the statutory maximum of 120 months for violating 18 U.S.C. § 113(a)(6) (assault resulting in serious bodily injury), after considering § 3553(a) factors.
• The Tenth Circuit reviewed the sentence’s substantive reasonableness for abuse of discretion and gave due deference to the district court’s § 3553(a) weighing. The court emphasized that it does not reweigh factors on appeal.
• The panel concluded that:
  • The district court reasonably emphasized the “nature and circumstances” of the offense, including the victim’s vulnerability and the defendant’s conduct in assaulting his dying mother.
  • The court adequately considered but permissibly discounted mitigation related to the defendant’s terminal health, noting his ineligibility for transplant due to refusal to stop drinking, and his minimal criminal history, which was already reflected in the PSR and Guideline calculation.
  • There is no requirement for the sentencing court to discuss or reconcile its sentence with a hypothetical Guidelines range associated with dismissed counts.
  • A major variance requires a more significant justification, which the district court provided here.
• Result: Sentence affirmed.

Analysis

Precedents Cited and Their Roles

• Gall v. United States, 552 U.S. 38 (2007):
  • Establishes that appellate courts review sentences for abuse of discretion and must give due deference to district courts’ application of § 3553(a).
  • Clarifies that appellate courts should consider the extent of a variance and require a more significant justification for a major variance.
  • Here, Gall guided the panel’s approach: it assessed the magnitude of the fourfold upward variance, but deferred because the district court offered a robust § 3553(a) rationale.
• United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008):
  • Defines substantive reasonableness in light of § 3553(a) and reiterates deference on appeal; courts cannot reverse simply because they might have imposed a different sentence.
  • Relied upon for the standard that variance extent is considered but the district court’s holistic balancing controls if reasonable.
• United States v. Smart, 518 F.3d 800 (10th Cir. 2008):
  • Appellate courts do not reweigh the § 3553(a) factors or reallocate weight among them.
  • The panel invoked Smart to reject Waitman’s request to second-guess the district court’s weighing of health and criminal history against offense severity.
• United States v. McComb, 519 F.3d 1049 (10th Cir. 2007):
  • Recognizes a “range of rationally available choices” that the district court may select from when imposing sentence; appellate deference applies if the sentence falls within that range.
  • Used here to underscore that the district court’s decision to impose the statutory maximum was within the set of rational options given the facts.
• United States v. Garcia, 946 F.3d 1191 (10th Cir. 2020) and United States v. DeRusse, 859 F.3d 1232 (10th Cir. 2017):
  • Frame the abuse-of-discretion standard: reversal is warranted only if a sentence is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
  • These cases supply the controlling gloss for the panel’s deferential review.
• United States v. Gross, 44 F.4th 1298 (10th Cir. 2022):
  • Confirms district courts’ broad discretion to consider particular facts even when already accounted for in the advisory Guidelines.
  • The panel used Gross to reject the premise that the district court was constrained by guideline accounting, reinforcing that § 3553(a) analysis need not “perfectly track” the Guidelines.
• United States v. Lente, 759 F.3d 1149 (10th Cir. 2014):
  • States that “major” variances require a more significant justification than minor ones (echoing Gall).
  • Here the panel found that the district court met this threshold by explaining why the Guidelines failed to serve just punishment, protection of the public, and the seriousness of the offense.
• United States v. McCrary, 43 F.4th 1239 (10th Cir. 2022):
  • Affirmed an upward variance to four times the high end of the Guidelines where the district court found rehabilitation did not outweigh the grave harm caused (a fentanyl-distribution death).
  • Cited to show that large upward variances can be sustained when the record supports a serious offense rationale that outweighs mitigation.

Legal Reasoning

The panel’s reasoning rests on three pillars: (1) appellate deference under abuse-of-discretion review, (2) the adequacy of the district court’s explanation for a major upward variance under § 3553(a), and (3) the absence of any legal requirement to reconcile the sentence with hypothetical Guidelines tied to dismissed counts.

1. Deference to the district court’s § 3553(a) balancing.

   Echoing Gall, Huckins, Smart, and McComb, the court emphasized that substantive reasonableness review is not an invitation to substitute the appellate court’s judgment for the trial judge’s. The question is whether the sentence is within the realm of rational choices in light of the record and § 3553(a). The district court’s emphasis on the “nature and circumstances of the offense”—an assault on a “helpless, dying, elderly woman” in hospice—was permissible and central to multiple § 3553(a)(2) purposes: reflecting seriousness, promoting respect for the law, providing just punishment, deterring criminal conduct, and protecting the public.

2. Adequacy of the explanation for a major variance.

   Under Lente and Gall, a “major” variance demands a more significant justification. The district court expressly found that the advisory range did not constitute just punishment, did not protect the public, and did not reflect the seriousness of the offense, and it articulated facts supporting those findings (the vulnerability of the victim, the brutality of the assault, and the context of hospice care). The court also expressly stated it had considered the parties’ statements, the plea agreement, the PSR, and the statutory factors. The Tenth Circuit held this explanation adequate for the magnitude of the variance.

3. Treatment of mitigation: health and criminal history.

   The district court did not ignore mitigation. It acknowledged the defendant’s severe liver disease but found the mitigation “unpersuasive” against the offense’s gravity, particularly given the defendant’s ineligibility for a transplant because he refused to stop drinking. The panel declined to reweigh this factor, consistent with Smart’s no-reweighing rule. As to minimal criminal history, the district court need not recite every fact aloud; it considered the PSR and the Guidelines range (which embodied the criminal history category), satisfying § 3553(a)(1) (“history and characteristics of the defendant”). The panel again refused to second-guess the weight assigned.

4. No duty to address hypothetical Guidelines ranges for dismissed counts.

   Waitman argued that the imposed sentence exceeded even the Guidelines range he would have faced had he been convicted of both counts (including attempted murder), and that the court should have explained why that hypothetical range was inadequate. The panel rejected this premise outright, noting the absence of authority imposing such a requirement. Sentencing courts must consider the actual advisory range and § 3553(a), not hypothetical ranges tied to dismissed charges. Citing Gross, the panel reiterated that § 3553(a) analysis need not “perfectly track” the Guidelines and that district courts retain broad discretion to consider case facts beyond Guideline arithmetic.

5. Appellate waiver context.

   Although the plea agreement contained an appellate waiver, it preserved the right to challenge the substantive reasonableness of an above-Guidelines sentence. The panel recognized the reservation and proceeded to the merits.

Impact and Implications

• High bar to overturn upward variances. This decision underscores how difficult it is to disturb a district court’s upward variance on substantive reasonableness grounds. If the district court ties its reasoning to the § 3553(a) factors and explains why the advisory range is insufficient—especially in cases involving particularly vulnerable victims or egregious conduct—affirmance is likely.
• No requirement to address dismissed-count hypotheticals. The panel’s explicit rejection of a duty to reconcile sentences with hypothetical Guideline ranges for dismissed counts is a practical clarification. Defense arguments premised on “what the Guidelines would have been if all counts had been sustained” carry little traction on appeal unless they reveal a procedural error or an irrational § 3553(a) analysis.
• Mitigation based on health conditions. Serious medical conditions can be considered, but do not compel leniency, particularly where the district court finds that other § 3553(a) purposes predominate or where the condition’s management is intertwined with the defendant’s conduct (e.g., refusal to stop drinking rendering transplant ineligible). Counsel relying on medical mitigation should develop a record that connects the health condition to reduced risk, alternative treatment prospects in custody, and concrete rehabilitative pathways.
• Victim vulnerability and offense context matter. Even where the Guidelines may reflect certain aggravators, district courts may still weigh the human context and moral blameworthiness of an offense under § 3553(a). The Tenth Circuit’s citation to Gross permits consideration of offense facts even if those facts already influence the advisory range.
• Major-variance justifications. Lente’s requirement that major variances be supported with more significant explanations remains the touchstone. Judges should explicitly link their rationale to specific § 3553(a) purposes and explain why lesser sentences fail to achieve them. Prosecutors seeking large variances should build a record that foregrounds those purposes; defense counsel should be prepared with concrete alternatives and compelling mitigation supported by documentation and expert declarations.
• Persuasive but not binding. As a non-precedential Order and Judgment, the opinion does not bind other panels but can be cited for persuasive effect. Nonetheless, it harmonizes with established Supreme Court and Tenth Circuit sentencing jurisprudence, lending it substantial persuasive weight.

Complex Concepts Simplified

• Substantive vs. procedural reasonableness: Procedural reasonableness asks whether the court followed the right steps (correct Guidelines calculation, ruling on objections, considering § 3553(a)). Substantive reasonableness asks whether the length of the sentence is reasonable given the facts and § 3553(a). Waitman raised a substantive challenge.
• Guidelines are advisory: Since United States v. Booker, the Guidelines are not mandatory. Judges must consider them, but may vary up or down if § 3553(a) supports it.
• Variance vs. departure: A “departure” is an adjustment authorized by Guideline provisions; a “variance” is a sentence outside the Guideline range based on § 3553(a). Waitman’s sentence involved an upward variance.
• Major variance: A large gap between the advisory range and the imposed sentence. Courts must give a more detailed explanation for major variances, but they are permissible when justified.
• Abuse-of-discretion review: The appellate court defers to the sentencing judge and overturns only if the sentence is “arbitrary, capricious, whimsical, or manifestly unreasonable.” The appellate court does not reweigh the factors or substitute its judgment.
• § 3553(a) factors: Statutory purposes and considerations that guide sentencing, including the nature of the offense, the defendant’s history, the need for just punishment, deterrence, protection of the public, and rehabilitation, among others.
• Statutory maximum: The highest term of imprisonment authorized by statute for the offense. Here, the maximum for assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) is 10 years, which the district court imposed.
• Hypothetical Guidelines for dismissed counts: Sentencing courts are not required to consider or explain how a sentence compares to what the Guidelines would have been had dismissed counts resulted in conviction. The focus is on the actual advisory range and § 3553(a).
• Presentence Report (PSR): A report prepared by probation incorporating offense conduct, criminal history, and Guideline calculations. Courts may rely on the PSR to satisfy consideration of a defendant’s history and characteristics.

Conclusion

United States v. Waitman reinforces core principles of federal sentencing review. The Tenth Circuit affirmed a statutory-maximum sentence imposed after a major upward variance, emphasizing that:

• District courts receive wide latitude to weigh § 3553(a) factors, and appellate courts will not reweigh them absent an abuse of discretion.
• Major variances are permissible when supported by a thorough, case-specific explanation tied to § 3553(a), especially in cases involving particularly egregious facts and vulnerable victims.
• Mitigating factors such as severe health issues and minimal criminal history must be considered, but they do not compel leniency; the weight assigned to them is for the sentencing judge.
• Sentencing courts need not address hypothetical Guideline ranges for dismissed counts, and their § 3553(a) analysis need not mirror Guideline accounting.

Although non-precedential, the decision aligns with Supreme Court and Tenth Circuit authority on sentencing deference and the justification required for major variances. It offers practical guidance to sentencing judges and litigants alike: build a clear record that connects facts to § 3553(a), and understand that the appellate lens is highly deferential when those connections are convincingly drawn.