Dual Departure-Variance Sentencing: Harmless-Error Endorsement in United States v. Butler (Zarion)

Introduction

On 26 June 2025 the United States Court of Appeals for the Tenth Circuit handed down its order and judgment in United States v. Butler (Zarion), No. 24-3067. The case concerns an above-guidelines sentence imposed after the defendant pleaded guilty to (i) forcible assault on a federal officer, 18 U.S.C. §§ 111(b) & 2, and (ii) use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). The appellate opinion addresses three core issues:

  • Whether the district court properly departed upward under U.S.S.G. § 2A2.2.
  • Whether the upward variance under 18 U.S.C. § 3553(a) was substantively reasonable.
  • The interaction between departures and variances, and the extent to which an erroneous departure can be ignored as harmless when a concurrent variance is upheld.

Defendant-Appellant Zarion Butler argued that the district court erroneously departed upward and imposed an unreasonable variance. The Tenth Circuit rejected his contentions and affirmed the 190-month sentence. In doing so, the court articulated a clarifying rule: when a district court blends departure and variance rationales, an appellate court may affirm the sentence solely on the variance ground, rendering any departure error harmless—provided the record shows no likelihood of a different sentence on remand.

Summary of the Judgment

The panel (Hartz, Kelly, Carson, JJ.) held:

  • District courts may simultaneously rely on guideline departures and statutory variances; they need not “choose one over the other.”
  • Where the sentencing court’s variance is independently sufficient, the appellate court need not decide whether the departure was correct; any potential error is harmless if the sentencing judge unmistakably would impose the same term based on the § 3553(a) analysis alone.
  • The 29-month upward variance (from 161 to 190 months) was substantively reasonable because the district court conducted an individualized, multi-factor assessment that was neither arbitrary nor manifestly unreasonable.

Consequently, Butler’s sentence was affirmed.

Analysis

Precedents Cited and Their Influence

  • United States v. Vazquez-Garcia, 130 F.4th 891 (10th Cir. 2025)
    Clarifies the conceptual difference between departures (Guideline-based) and variances (statutory discretion). Butler relies on this taxonomy to remind courts that the two tools are analytically distinct.
  • Gall v. United States, 552 U.S. 38 (2007)
    Foundation for deferential abuse-of-discretion review of substantive reasonableness; Butler quotes Gall for the district judge’s superior vantage point.
  • United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)
    Recognizes that facts already captured by the guidelines may still inform a variance. Used to reject Butler’s overlap argument.
  • United States v. DeRusse, 859 F.3d 1232 (10th Cir. 2017)
    Provides the harmless-error template: even if a departure is improper, the sentence stands where the same term would be imposed via a valid variance.
  • United States v. Fykes, 678 F. App’x 677 (10th Cir. 2017) and United States v. Martinez-Barragan, 545 F.3d 894 (10th Cir. 2008)
    Allow dual reliance on departure and variance. Butler extends their logic by showing how an appellate court can streamline review when both are invoked.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024)
    Example of an improper variance driven by a single factor; cited to distinguish Butler, where the district court evaluated all relevant factors.

Legal Reasoning of the Court

  1. Standard of Review. Substantive reasonableness challenges are reviewed for abuse of discretion. A sentence is unreasonable only if it is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
  2. Departure vs. Variance Dichotomy.
    • Departure: operates inside the Guidelines framework, asking whether the case lies outside the “heartland” contemplated by a particular guideline.
    • Variance: operates outside the Guidelines, applying the holistic § 3553(a) factors.
    The district court expressly “did not make a distinction” and based both adjustments on identical facts.
  3. Harmless-Error Approach. Following DeRusse, the panel assumed (arguendo) that the departure could be faulty but declined to decide the question because (i) the court separately applied a robust § 3553(a) analysis, (ii) the same 190-month sentence would issue on remand, and (iii) the district court’s comments make that inevitability clear.
  4. Substantive Reasonableness. The panel canvassed the district court’s reasons: multiplicity of victims, severe civilian injury, neighborhood terror, retaliatory motive, defendant’s criminal history, need for deterrence, public protection, and respect for law. Because the judge balanced these factors and articulated them in detail, the resulting variance fell within the “bounds of permissible choice.”

Impact of the Decision

  • Streamlines Appellate Review. Trial judges often blend departure and variance rationales. Butler authorizes appellate courts to bypass complex departure analysis when (1) a freestanding variance is adequate and (2) the record dispels any possibility of a lower sentence on remand.
  • Encourages Detailed § 3553(a) Findings. Sentencing judges who lay out a thorough § 3553(a) discussion create a safeguard against reversal, even if their guideline calculations later prove debatable.
  • Broader Reading of “Victim Impact.” Psychological harm to third parties and community disruption can justify both departure and variance in aggravated-assault cases, expanding the doctrinal acceptance of non-physical injury considerations.
  • Gang-Related Violence Sentencing. Reinforces the trend of significant upward adjustments in gang-retaliation shootings—signaling substantial sentences where community danger is high.

Complex Concepts Simplified

  • Guideline “Departure.” Think of the Sentencing Guidelines as a map with typical routes. A departure means the judge decides the case is so unusual it must leave the mapped path, but still uses the same map to measure how far off-route to go.
  • Statutory “Variance.” A variance is permission to leave the map entirely and choose a route based on broader statutory landmarks (§ 3553(a) factors). The judge may say, “Even if the map fits, this journey needs a different ending.”
  • Substantive Reasonableness. Appellate courts ask, “Was the chosen route one a sensible traveler could pick?”—not whether they might pick a different route themselves.
  • Harmless Error. If the traveler took a legally questionable shortcut (departure), but still would have reached the same destination by an unquestionably lawful road (variance), there is no need to restart the trip.

Conclusion

United States v. Butler (Zarion) cements an important procedural principle: where a sentencing judge contemporaneously departs and varies upward on the same factual basis, an appellate court may affirm the sentence solely on the variance, treating any departure misstep as harmless—so long as the record shows the same sentence would issue on remand. This rule promotes efficiency, reduces needless remands, and underscores the value of a detailed § 3553(a) explanation. Practitioners should take note: meticulous, multi-factor findings by the district court are the best shield against substantive-reasonableness attacks, and appellate counsel must grapple with the heightened deference courts afford such well-supported variances.