Alternative-Variance “Safety Valve”: The Fourth Circuit Reaffirms That an Explicit, Well‑Reasoned Alternative Sentence Can Neutralize a Guidelines Miscalculation on Plain‑Error Review

Introduction

This commentary examines the Fourth Circuit’s unpublished per curiam decision in United States v. Titus Coston (No. 24-4154, Nov. 14, 2025), affirming a 115‑month sentence imposed after a guilty plea to 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). The central issue on appeal was procedural reasonableness: the district court miscalculated the Sentencing Guidelines range by setting a higher base offense level under USSG §2K2.1(a)(1) based on the assumption that the offense involved a semiautomatic firearm capable of accepting a “large capacity magazine” (LCM). The Government conceded the error. Nevertheless, the Fourth Circuit affirmed, concluding the mistake did not affect the defendant’s substantial rights because the sentencing judge explicitly announced—and thoroughly explained—an alternative variant sentence at the hearing and in the written Statement of Reasons.

Although unpublished and not binding precedent, the opinion meaningfully reinforces a recurring appellate theme: when a district court expressly states it would impose the same sentence as a variance and gives robust, § 3553(a)-anchored reasons, a Guidelines miscalculation may be deemed harmless on appeal, particularly on plain-error review.

Summary of the Opinion

At sentencing, the district court used a base offense level of 26 under USSG §2K2.1(a)(1) (2023), reasoning that the offense “involved a semiautomatic firearm that is capable of accepting a large capacity magazine,” which—combined with other prerequisites—produced a total offense level of 23 and, with Criminal History Category (CHC) VI, an advisory range of 92–115 months. The court imposed 115 months.

Several days later, Coston moved under Fed. R. Crim. P. 35(a) to correct clear error, explaining that the “extended magazine” did not meet the Guidelines commentary’s definition of an LCM; therefore, the correct base offense level was 24 (USSG §2K2.1(a)(2)), yielding a total offense level of 21 and an advisory range of 77–96 months. The Government agreed on the error but argued harmlessness because the judge had already announced an alternative variant sentence of 115 months based on the § 3553(a) factors. The district court denied the motion.

On appeal, the Fourth Circuit reviewed for plain error (no contemporaneous objection), with the Government conceding the first two prongs (error and plainness). The court held the error did not affect substantial rights, because (1) the district court expressly stated it would impose the same sentence as an alternative variance, and (2) the 115‑month sentence was substantively reasonable as a 19‑month upward variance from the corrected 77–96 month range, given the court’s detailed and individualized § 3553(a) analysis emphasizing public protection and the defendant’s violent criminal history and firearm conduct. The panel therefore affirmed without oral argument.

Analysis

Precedents Cited and Their Influence

• United States v. Lynn, 592 F.3d 572 (4th Cir. 2010): Framed the standard for plain-error review when a defendant fails to object at sentencing. Lynn anchors the appellate lens here: because Coston did not object to the base offense level at the hearing, the court applied plain-error review.
• United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013): Emphasized that relief on plain-error review is difficult to obtain. The court invoked Carthorne’s cautionary note to underscore the high bar for reversing on an unpreserved Guidelines issue.
• United States v. Hargrove, 625 F.3d 170 (4th Cir. 2010): Clarified that an error affects substantial rights only if it affected the outcome—i.e., the defendant must show he likely would have received a lower sentence absent the error. This framed the crux of the dispute: whether Coston could show a reasonable probability of a lower sentence despite the district court’s explicit alternative-variance announcement.
• United States v. Mills, 917 F.3d 324 (4th Cir. 2019): Provided the two-part framework for finding a Guidelines error harmless: (1) the district court would have imposed the same sentence even if it had decided the Guidelines issue in the defendant’s favor; and (2) the resulting sentence would be reasonable under the correct Guidelines range. Mills is the backbone of the opinion; the panel quoted and applied both prongs to conclude the error did not affect substantial rights.
• United States v. Provance, 944 F.3d 213 (4th Cir. 2019): Addressed the level of scrutiny for substantial variances, noting that the farther a sentence deviates from the Guidelines, the more compelling the justification must be. The court used Provance to test whether the 19‑month upward variance (relative to the proper 77–96 month range) was sufficiently explained.
• Gall v. United States, 552 U.S. 38 (2007): Reinforced the deferential abuse-of-discretion standard and the need to give “due deference” to the district court’s weighing of § 3553(a) factors. Gall supplied the overarching standard for assessing the substantive reasonableness of the upward variance.

Taken together, these authorities permitted the court to dispose of a conceded Guidelines miscalculation without remand where the record contained both an explicit alternative sentence and a fulsome § 3553(a) rationale tailored to the defendant.

Legal Reasoning

The panel’s reasoning proceeded in three steps, keyed to the plain-error framework and the Mills harmlessness test:

1. Error and plainness were conceded. The Government agreed that the base offense level should have been 24, not 26, because the “extended magazine” did not satisfy the Guidelines commentary’s definition of a “large capacity magazine.” This would have lowered the total offense level from 23 to 21 and the advisory range from 92–115 months to 77–96 months (CHC VI). These prongs were therefore undisputed.
2. No effect on substantial rights (third prong). The court held Coston failed to show a reasonable probability of a lower sentence. Two factual features drove this conclusion:
   • Explicit alternative-variance pronouncement. The district court said on the record it “would impose the same sentence as an alternative variant sentence in light of all the Section 3553(a) factors,” and reiterated that the 115‑month term was “sufficient but not greater than necessary.” The written Statement of Reasons mirrored this, and the court reaffirmed the same point when denying Rule 35(a) relief. Under Mills, that expression of intent is powerful evidence that the same outcome would have resulted even had the Guidelines been correctly calculated at the time.
   • Reasonableness of the variance measured against the correct range. With a proper range of 77–96 months, 115 months is a 19‑month upward variance. Applying Provance and Gall, the panel reviewed the district court’s explanation, which emphasized public protection in light of Coston’s extensive, violent criminal history and repeated firearm possession and use. The court noted it had seriously considered a higher upward variance (to 130 months) but balanced the statutory factors and mitigation—including Coston’s allocution and the court’s orders for treatment and evaluations—to settle on 115 months. That careful balancing, tailored to the case, satisfied the requirement of compelling reasons for a substantial departure from the range.
   Because both Mills prongs were met, the error did not affect substantial rights under Hargrove.
3. Discretionary correction (fourth prong) not reached. Having found no effect on substantial rights, the panel did not need to decide whether to exercise discretion to correct the error.

Impact and Practical Significance

Even as an unpublished decision, Coston has concrete, practice-oriented implications:

• For district judges: The opinion validates a well-known “safety valve” technique. If a Guidelines issue is contested or uncertain, making an explicit alternative-variance pronouncement—paired with a thorough, individualized § 3553(a) explanation that would independently justify the same sentence relative to the correct range—can insulate the sentence from reversal if a later appellate or Rule 35(a) challenge reveals a miscalculation.
• For prosecutors: Where a Guidelines error is conceded or likely, the record benefits from prompting the court to state an alternative sentence and to anchor it in the § 3553(a) factors. That record can defeat the “substantial rights” prong on plain-error review and support harmlessness under Mills.
• For defense counsel: The case is a cautionary tale on preservation. Failure to object at sentencing triggers plain-error review, and an explicit, well-reasoned alternative sentence may defeat any showing of prejudice. Counsel should:
  • Object contemporaneously to disputed enhancements (here, the LCM issue under § 2K2.1) and request a ruling;
  • If the court considers giving an alternative sentence, press for a correct Guidelines calculation first and object to any upward variance as substantively unreasonable under the correct range;
  • Develop mitigating evidence and arguments that directly address the court’s public-safety and recidivism concerns, since those rationales can justify substantial variances.
• On the substance of firearms cases: The court endorsed a significant (19‑month) upward variance in a felon‑in‑possession case based on public protection and violent criminal history. Expect prosecutors to cite Coston to support upward variances in § 922(g) cases where the record shows persistent, dangerous firearm conduct and violent past offenses.
• Guidelines commentary on LCMs: The Government’s concession highlights that not every “extended” magazine meets the Guidelines commentary’s LCM definition. Defense counsel should scrutinize the specifics of the firearm and magazine to challenge § 2K2.1(a)(1) when appropriate. That said, as Coston shows, prevailing on the definition will not guarantee a lower sentence if the court independently justifies an upward variance.

Complex Concepts Simplified

• Plain-error review: Applies when a defendant does not object in the district court. To win, the defendant must show: (1) an error, (2) that is plain (clear/obvious), and (3) that affects substantial rights (usually, a reasonable probability of a lower sentence). Even then, the appellate court will correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Harmlessness under Mills (as applied to Guidelines errors): A Guidelines miscalculation can be treated as harmless if the record shows both that (1) the district court would have imposed the same sentence even if the Guidelines issue were resolved in the defendant’s favor, and (2) the sentence would be substantively reasonable under the correct range.
• Alternative-variance sentence: A district court’s statement that, even if its Guidelines calculation is wrong, it would impose the same sentence based on consideration of the § 3553(a) factors. This statement must be backed by a reasoned explanation tailored to the defendant and the offense.
• Variance (vs. departure): A departure is a Guidelines-based adjustment authorized by the Guidelines themselves. A variance is a sentence outside the advisory range based on the statutory factors in 18 U.S.C. § 3553(a). Coston involved an upward variance.
• USSG § 2K2.1 and “large capacity magazine” (LCM): Section 2K2.1 sets base offense levels for firearm offenses. Subsection (a)(1) increases the base level when the offense involves a semiautomatic firearm capable of accepting an LCM (as defined in the Guidelines commentary) and other criteria are met. Subsection (a)(2) provides a lower base level absent the LCM feature. The precise definition of LCM is technical and found in the commentary; not every extended magazine qualifies.
• Rule 35(a): Allows a sentencing court to correct a sentence that resulted from “arithmetical, technical, or other clear error” within 14 days after sentencing. It is not a vehicle for substantive reconsideration. In Coston, the district court denied Rule 35(a) relief because, even acknowledging the Guidelines error, it had already imposed (and explained) an alternative variance.
• Reasonableness review: Appellate courts review sentences for procedural and substantive reasonableness under an abuse-of-discretion standard. Procedural reasonableness includes correct Guidelines calculation; substantive reasonableness examines whether the sentence is justified by the § 3553(a) factors. Larger variances require more compelling justifications, but substantial deference applies.

How the Opinion Fits Within the Broader Doctrinal Landscape

Although not cited in the opinion, the Supreme Court’s decisions in Molina‑Martinez v. United States (2016) and Rosales‑Mireles v. United States (2018) provide important context. Molina‑Martinez holds that a sentence imposed under an incorrect Guidelines range ordinarily satisfies the “substantial rights” requirement on plain-error review because the range anchors the sentencing decision. But Molina‑Martinez also recognizes an exception where the record makes it clear the judge would have imposed the same sentence regardless—precisely what occurred in Coston through the court’s explicit alternative-variance statement and detailed § 3553(a) explanation. Rosales‑Mireles further teaches that, when the third prong is met, appellate courts should ordinarily correct Guidelines errors under the fourth prong. Coston shows how a robust alternative-variance record can short-circuit the third prong, obviating the need to reach the fourth.

What the Case Does Not Decide

• It does not parse or refine the definition of a “large capacity magazine” under the Guidelines; the Government conceded the error, and the panel accepted that concession without analysis.
• It does not address deference to Guidelines commentary after Kisor v. Wilkie. Any such questions remain for a case that squarely presents and litigates the issue.
• Being unpublished, it does not create binding Fourth Circuit precedent, though it is persuasive as to how panels may apply Mills and Provance to uphold alternative-variance sentences.

Key Takeaways

• A conceded Guidelines miscalculation will not necessarily yield a resentencing if the district court:
  • Expressly states it would impose the same sentence as an alternative variance; and
  • Provides a detailed § 3553(a) explanation demonstrating that the sentence is substantively reasonable when measured against the correct range.
• Defense counsel must preserve Guidelines challenges at sentencing; otherwise, the combination of plain-error review and an explicit, well-justified alternative variance may doom the appeal.
• Judges who anticipate possible Guidelines disputes should consider making a carefully reasoned alternative-variance record; doing so often insulates the sentence from reversal if a later miscalculation comes to light.
• Not every “extended” magazine qualifies as an “LCM” under § 2K2.1’s commentary; factual development on that point can materially alter the advisory range. Still, an independently supported variance may sustain the sentence.

Conclusion

United States v. Coston reinforces a practical and increasingly common appellate reality: a sentencing court’s explicit declaration of an alternative variant sentence—coupled with a thorough, individualized § 3553(a) analysis—can neutralize a Guidelines miscalculation on plain-error review. Applying Lynn, Hargrove, Mills, Provance, and Gall, the Fourth Circuit concluded that the error in calculating the base offense level (26 instead of 24) did not affect Coston’s substantial rights because the district court would have imposed, and reasonably justified, the same 115‑month sentence even under the correct 77–96 month range. The decision underscores best practices for sentencing judges, strategic considerations for counsel, and the enduring centrality of § 3553(a)’s parsimony principle and individualized assessment in federal sentencing.