Death-Resulting Conduct May Support a Statutory-Max Upward Variance Under §3553(a) After the 2024 §2D1.1 Amendment: United States v. Horton (5th Cir. 2025)

Death-Resulting Conduct May Support a Statutory-Max Upward Variance Under §3553(a) After the 2024 §2D1.1 Amendment

Commentary on United States v. Horton, No. 24-50938 (5th Cir. Nov. 11, 2025)

Introduction

In United States v. Horton, the Fifth Circuit affirmed a 240-month sentence imposed after resentencing for a fentanyl distribution offense under 21 U.S.C. § 841(a)(1), (b)(1)(C). The case stands at the intersection of three important sentencing issues:

  • How district courts may use death-resulting conduct under 18 U.S.C. § 3553(a) to justify major upward variances, even when the “death results” enhancement under § 841(b)(1)(C) is not part of the conviction and after the Sentencing Commission’s 2024 elimination of the “death or serious bodily injury” language from U.S.S.G. § 2D1.1(a)(2).
  • What defendants must do to preserve procedural sentencing errors—specifically, that objections to the adequacy of a court’s explanation must be raised after sentencing is pronounced.
  • When an allocution error at resentencing warrants relief on plain-error review.

The defendant, Zytrell Horton, pled guilty to distributing fentanyl-laced pills disguised as Percocet. The overdose death of an Army soldier (L.G.) followed shortly after a purchase from Horton. The district court originally calculated a Guidelines range of 210–240 months by applying U.S.S.G. § 2D1.1(a)(2), but on appeal the Government conceded that was error under United States v. Greenough because “death results” was not an element of Horton’s offense of conviction. On remand, the Guidelines range fell to 10–16 months. The court nonetheless varied upward to the 240-month statutory maximum, citing § 3553(a). It did so without inviting allocution and with minimal explanation. Horton challenged the sentence as procedurally and substantively unreasonable and asserted a violation of his right to allocute. The Fifth Circuit affirmed.

Summary of the Opinion

  • Procedural reasonableness: The district court’s explanation for the 224-month upward variance was insufficient—merely reciting § 3553(a) factors without case-specific reasoning is clear error. But because Horton did not object after the sentence was pronounced and did not show that the inadequate explanation affected the outcome, his claim failed under the third prong of plain-error review.
  • Substantive reasonableness: The court did not abuse its discretion. Even though the § 841(b)(1)(C) “death results” enhancement did not apply to the conviction, the district court permissibly considered the victim’s death and Horton’s continued dealing of disguised fentanyl under § 3553(a) to vary upward to the statutory maximum.
  • Allocution: Assuming an obvious allocution error at resentencing, the Fifth Circuit declined to correct it under plain-error review because Horton previously had an opportunity to allocute before the same judge, he identified no specific mitigation he would have offered that might have changed the sentence, and counsel presented mitigating arguments.

Key Holdings (New/Clarified Rules)

  • Post-2024, even without the “death or serious bodily injury” text in § 2D1.1(a)(2) and even where “death results” is not part of the offense of conviction, a sentencing court may consider a victim’s death under § 3553(a) to impose a substantial upward variance up to the statutory maximum.
  • To preserve a procedural challenge to the adequacy of a sentencing explanation, the defendant must object after the court announces the sentence. Pre-sentencing objections to other issues do not preserve the explanation issue.
  • Inadequate explanation for a dramatic variance is clear error, but on plain-error review the defendant must show a reasonable probability of a different result. Absent a showing of prejudice, the sentence stands.
  • Failure to invite allocution at resentencing does not automatically require reversal on plain-error review, particularly where the defendant previously allocuted before the same judge, offers no specific new mitigation that might have changed the outcome, and counsel presented mitigating points.

Detailed Analysis

Precedents Cited and Their Influence

  • United States v. Greenough, 669 F.3d 567 (5th Cir. 2012): Greenough holds that U.S.S.G. § 2D1.1(a)(2) applies only when “death results” is part of the offense of conviction (the second prong of § 841(b)(1)(C)). The Government conceded on the first appeal that the original Guidelines calculation was erroneous under Greenough, leading to resentencing and a drastically reduced advisory range (10–16 months).
  • Rita v. United States, 551 U.S. 338 (2007); Gall v. United States, 552 U.S. 38 (2007): These cases frame the duty to explain a sentence and the abuse-of-discretion standard for appellate review. Gall, in particular, requires a “more significant justification” for major variances and demands reasons sufficient for meaningful appellate review.
  • United States v. Mares, 402 F.3d 511 (5th Cir. 2005): Requires a district court imposing a non-Guidelines sentence to carefully articulate case-specific reasons.
  • United States v. Bostic, 970 F.3d 607 (5th Cir. 2020): Emphasizes the need for a commensurate explanation for dramatic deviations and illustrates a properly preserved procedural challenge; here, Bostic did not help Horton because he did not object after the sentence was pronounced or otherwise contest the adequacy of the court’s explanation.
  • United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009): A district court’s bare recitation of Guidelines or § 3553(a) factors is insufficient; however, on plain-error review, a defendant must show that the explanation error affected the outcome.
  • United States v. Diaz Sanchez, 714 F.3d 289 (5th Cir. 2013): In assessing explanation sufficiency, appellate courts look to the district court’s statements on the record.
  • United States v. Diehl, 775 F.3d 714 (5th Cir. 2015): The greater the variance from the Guidelines, the more compelling the justification must be.
  • United States v. Hudgens, 4 F.4th 352 (5th Cir. 2021): Confirms that even when an enhanced penalty is unavailable, a court may consider a victim’s death under § 3553(a) when selecting a sentence within the statutory range, and may vary upward to the statutory maximum.
  • United States v. Redmond, 965 F.3d 416 (5th Cir. 2020): Upholds a large upward variance, reinforcing the deferential nature of substantive reasonableness review.
  • Holguin-Hernandez v. United States, 589 U.S. 169 (2020): A request for a lower sentence preserves substantive reasonableness arguments without further formality.
  • Standards of review and preservation: United States v. Cano, 981 F.3d 422 (5th Cir. 2020) (two-step review framework); United States v. Foley, 946 F.3d 681 (5th Cir. 2020) (abuse-of-discretion standard); United States v. Sepulveda, 64 F.4th 700 (5th Cir. 2023), United States v. Broussard, 669 F.3d 537 (5th Cir. 2012), and Puckett v. United States, 556 U.S. 129 (2009) (plain-error standards); United States v. Neal, 578 F.3d 270 (5th Cir. 2009), United States v. Pineiro, 470 F.3d 200 (5th Cir. 2006), United States v. Rodriguez, 15 F.3d 408 (5th Cir. 1994), and United States v. Bullard, 13 F.3d 154 (5th Cir. 1994) (preservation requires sufficiently specific objections).
  • Allocution line of cases: United States v. Figueroa-Coello, 920 F.3d 260 (5th Cir. 2019) (plain-error framework for allocution at resentencing and when relief is warranted), United States v. Palacios, 844 F.3d 527 (5th Cir. 2016), United States v. Moree, 928 F.2d 654 (5th Cir. 1991), and United States v. Chavez-Perez, 844 F.3d 540 (5th Cir. 2016) (allocution errors and the need to show likely impact).
  • United States v. Said, 2023 WL 167213 (5th Cir. Jan. 12, 2023) (per curiam): Illustrates a failure to show that an inadequate explanation affected substantial rights on plain-error review.

Legal Reasoning

The panel (Judge Stuart Kyle Duncan writing) organized its analysis across the three issues—procedural error, substantive reasonableness, and allocution—each with distinct preservation and review standards.

  1. Procedural reasonableness (explanation adequacy):
    • Preservation: Horton did not object after the district court announced its sentence and offered its explanation. His earlier objection—arguing that the court could not consider L.G.’s death because it was not “indicted and proven”—did not put the court on notice that its explanation was inadequate. This triggered plain-error review.
    • Error: The court’s explanation was inadequate for a 224-month upward variance (from 10–16 months to 240 months). Merely reciting the § 3553(a) factors, without tying them to case-specific facts, is insufficient and constitutes clear error, particularly for a “major departure.”
    • Prejudice (plain-error prong three): The opinion emphasizes that Horton “offers no rejoinder whatsoever” to the Government’s argument that the inadequate explanation did not affect the outcome. Under Mondragon-Santiago and Said, a defendant must show that better reasoning or explanation likely would have changed the sentence. Horton made no such showing. Result: no relief under plain-error review.
  2. Substantive reasonableness:
    • Preservation: Preserved via a request for a lower sentence under Holguin-Hernandez, so abuse-of-discretion applies.
    • Use of death-resulting conduct under § 3553(a): The court rejected Horton’s argument that considering L.G.’s death “effectively” reimposed the § 841(b)(1)(C) death-results enhancement. That enhancement sets a mandatory minimum (20 years to life); by contrast, the sentencing court here used § 3553(a) to select a sentence up to, but not beyond, the statutory maximum. Hudgens squarely permits considering that a death occurred as part of the § 3553(a) analysis, even where the enhanced penalty provision is not triggered by the conviction offense.
    • Record-based justification: The record showed: (i) communications and payments tying Horton to the sale of fentanyl-laced pills that preceded L.G.’s overdose; (ii) undercover buys days later of more disguised fentanyl pills; and (iii) Horton’s later guilty plea to a related state murder charge. These facts supported weighing the nature and circumstances of the offense, the defendant’s characteristics, and the need for deterrence and public protection. Given the deferential standard, the court upheld the variance.
  3. Allocution at resentencing:
    • Framework: The court assumed arguendo that failing to inform Horton of his allocution right at resentencing was obvious error affecting substantial rights, but still declined to correct the error under plain-error’s fourth prong.
    • No serious effect on fairness, integrity, or public reputation: Three considerations led to affirmance:
      • Horton had the opportunity to allocute at his original sentencing before the same judge.
      • He identified no specific mitigating facts he would have offered at resentencing that plausibly could have changed the outcome.
      • Defense counsel presented mitigation arguments, including about the state plea context and evidentiary uncertainties.

Impact and Forward-Looking Implications

  • Post-2024 Guidelines landscape: The Sentencing Commission removed the “death or serious bodily injury” trigger from § 2D1.1(a)(2) effective November 1, 2024. Horton signals that this amendment will not preclude lengthy sentences in cases involving overdose deaths. District courts may still give substantial weight to a death under § 3553(a) and vary upward—potentially to the statutory maximum—if the record supports it.
  • Preservation imperative for defense counsel: Horton underscores a preservation trap. To challenge the adequacy of the district court’s explanation, defense counsel must object after the sentence is pronounced and the reasons are stated. Pre-judgment objections on other topics (e.g., what facts the court may consider) will not preserve an explanation challenge. Failure to preserve relegates the defendant to plain-error review, where showing prejudice is demanding.
  • Explanation duties for district courts: Although the Fifth Circuit affirmed on plain-error review, it reiterated that major variances require case-specific, detailed reasoning. A skeletal recitation of § 3553(a) factors is clear error and risks reversal if preserved.
  • Substantive reasonableness review remains deferential: Large upward variances can survive appellate scrutiny when anchored in record-supported findings addressing § 3553(a) factors like public protection, deterrence, and offense gravity—especially in fentanyl cases involving overdoses and repeated dealing of disguised pills.
  • Allocution at resentencing: A failure to invite allocution will not invariably trigger reversal. Defendants should be prepared to proffer specific, new mitigation they would present and explain why it could matter; prior allocution and counsel’s advocacy may blunt claims of prejudice and unfairness.

Complex Concepts Simplified

  • Guidelines range vs. statutory maximum: The Guidelines recommend a sentencing range based on offense and offender characteristics. The statutory maximum is the legal ceiling set by Congress for the offense of conviction. A judge may vary from the Guidelines so long as the sentence remains within the statutory range.
  • Upward variance vs. departure: A “departure” applies a specific Guidelines provision authorizing a move outside the range. A “variance” uses the broader statutory factors in § 3553(a) to select a sentence outside the range. Horton is a variance case.
  • § 3553(a) factors: Statutory considerations guiding sentencing, including the nature and circumstances of the offense, the defendant’s history and characteristics, the need for just punishment, deterrence, public protection, and the need to avoid unwarranted disparities.
  • Plain-error review (four prongs): The appellant must show (1) error, (2) that is clear or obvious, (3) that affected substantial rights (usually a reasonable probability of a different outcome), and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings.
  • Preservation of procedural error: To preserve a challenge to the adequacy of the court’s explanation, object after the court states its reasons. This gives the judge a chance to clarify or supplement the record.
  • Allocution: The defendant’s right to speak before sentencing. Failure to invite allocution can be error, but reversal often depends on whether the defendant can show what he would have said and why it might have affected the sentence.

Practical Guidance

  • For defense counsel:
    • After the court announces sentence and its reasons, explicitly object if the explanation lacks case-specific analysis—especially for major variances.
    • On appeal, if explanation-error review is plain-error, demonstrate how a fuller explanation could have changed the outcome; identify omitted mitigating facts the court should have engaged with.
    • Preserve and proffer concrete mitigation for allocution issues, detailing what the defendant would say and why it could matter.
    • Anticipate that courts may consider overdose deaths under § 3553(a), and be prepared to contest causation, knowledge, and culpability on the merits.
  • For prosecutors:
    • Post-2024 § 2D1.1, build a robust § 3553(a) record tying death-resulting facts and public-safety concerns to the requested variance. Hudgens and Horton provide a pathway to seek substantial upward variances.
    • Encourage the court to articulate case-specific reasons commensurate with the variance’s magnitude to fortify the sentence on appeal.
  • For district courts:
    • When imposing major variances, connect each § 3553(a) factor to concrete, case-specific facts. The greater the variance, the more thorough the explanation should be.
    • Ensure the defendant is offered allocution at resentencing and consider asking for objections to the explanation to avoid preservation disputes.

Conclusion

United States v. Horton reaffirms three principles that will shape federal sentencing in overdose cases going forward:

  1. A victim’s death, even when not an element of the offense of conviction and notwithstanding the 2024 amendment to § 2D1.1(a)(2), may be weighed under § 3553(a) to justify a significant upward variance, including to the statutory maximum, so long as the sentence remains within the statutory range and is supported by the record.
  2. Major variances demand detailed, case-specific explanations. However, absent a timely objection and a showing of prejudice, inadequate explanations may not lead to reversal on plain-error review.
  3. Allocution errors at resentencing are not automatically reversible; defendants must show how allocution could have materially affected the sentence, particularly when they previously allocuted and counsel presented mitigation.

In short, Horton signals that the removal of the “death or serious bodily injury” language from § 2D1.1(a)(2) will not, by itself, meaningfully constrain district courts from imposing severe sentences in fentanyl-overdose cases. The decisive battlegrounds will be the development of a persuasive § 3553(a) record, meticulous preservation of procedural objections, and concrete showings of prejudice on appeal.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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