Guideline Time Limits Do Not Constrain § 3553(a): Appeal Waivers and Upward Variances in United States v. House

I. Introduction

The Tenth Circuit’s nonprecedential order in United States v. House (No. 25‑6035, Dec. 2, 2025) sits at the intersection of three recurrent sentencing issues:

• Enforcement of appellate waivers in plea agreements, particularly as to procedural reasonableness challenges to sentencing;
• The permissible scope of a district court’s reliance on a defendant’s old, unscored convictions and civil protective orders to justify an upward variance; and
• The relationship between Guidelines time limits on scoring criminal history (U.S.S.G. § 4A1.2(e)) and the court’s broader § 3553(a) discretion.

Defendant Francisco Jerard House, Sr. pleaded guilty to being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1), after a search of his residence and vehicle (triggered by an allegation of sexual assault involving a firearm) uncovered ammunition and a handgun. Although the Sentencing Guidelines yielded a relatively low advisory range of 10–16 months (offense level 12, Criminal History Category I), the district court imposed a 36‑month sentence via an upward variance, based largely on House’s history of violent conduct, intimate partner violence, and related protective orders.

On appeal, House argued that:

1. His sentence was procedurally unreasonable because the court relied on allegedly unreliable hearsay concerning prior protective orders; and
2. His sentence was substantively unreasonable because the court gave “improper weight” to prior adjudications and protective orders that were too old to be scored under U.S.S.G. § 4A1.2(e)(1).

The Tenth Circuit enforced House’s plea-based appeal waiver to bar the procedural challenge and rejected the substantive challenge on the merits, stressing that:

• Appellate waivers will be enforced where they clearly cover the disputed issue and the defendant does not meaningfully contest their validity; and
• Guideline time limits for counting prior sentences do not restrict what conduct a district court may consider under § 3553(a) when deciding whether to vary upward, especially where the Guidelines themselves (U.S.S.G. § 4A1.3(a)(1)) recognize that criminal history categories may underrepresent both seriousness and recidivism risk.

Although designated as an “order and judgment” with no binding precedential effect, the decision offers important persuasive guidance on sentencing practice within the Tenth Circuit and, more generally, on how appellate courts will treat similar arguments elsewhere.

II. Summary of the Opinion

A. Factual and Procedural Background

• In March 2024, Oklahoma City Police received a report that House had sexually assaulted a woman, C.Y., at her workplace and had openly displayed a firearm before and during the assault.
• A search warrant execution at House’s residence uncovered a handgun magazine with eleven live rounds and a box of ammunition with fourteen live rounds. A separate search of his vehicle yielded a Taurus G2C 9mm handgun loaded with twelve rounds.
• A federal indictment charged House with:
  • Felon in possession of a firearm (18 U.S.C. § 922(g)(1)); and
  • Felon in possession of ammunition (18 U.S.C. § 922(g)(1)).
• House entered a written plea agreement and agreed to plead guilty. The plea agreement contained an appeal waiver that included waiving challenges to the “manner in which the sentence is determined, including its procedural reasonableness.”
• The Presentence Investigation Report:
  • Calculated a total offense level of 12 (base level 14, minus 2 for acceptance of responsibility);
  • Assigned House a criminal history score of 0 and Category I (his prior felony convictions were too old to be scored under U.S.S.G. § 4A1.2(e)); and
  • Produced an advisory Guidelines range of 10–16 months’ imprisonment.
• The government sought an upward variance, citing:
  • House’s violent criminal history; and
  • Three protective orders issued against him after incidents of intimate partner violence.
• The district court adopted the PSR’s calculations but found the advisory range “inadequate,” citing that House’s criminal history category underrepresented his risk of recidivism and danger to the public. It imposed a 36‑month sentence.

B. Issues on Appeal

1. Whether the sentence was procedurally unreasonable because the district court allegedly relied on unreliable hearsay regarding protective orders.
2. Whether the sentence was substantively unreasonable because the court allegedly gave improper weight to old convictions and protective orders that fell outside the temporal limits of U.S.S.G. § 4A1.2(e)(1).

C. Holdings

1. Procedural reasonableness challenge waived. Applying United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), the court held that House’s plea agreement clearly waived his right to challenge the “manner” in which his sentence was determined, including its procedural reasonableness. House did not dispute the waiver’s validity or argue that enforcement would be a miscarriage of justice; the panel therefore declined to consider the procedural challenge.
2. Substantive reasonableness challenge rejected.
   • The court reviewed for abuse of discretion under United States v. Guevara‑Lopez, 147 F.4th 1174 (10th Cir. 2025), giving substantial deference to the district court.
   • It concluded that U.S.S.G. § 4A1.2(e)(1)’s time limits govern how criminal history points are calculated, but do not bar a sentencing court from considering older convictions, domestic violence incidents, protective orders, or an alleged sexual assault when evaluating § 3553(a) factors.
   • Relying on U.S.S.G. § 4A1.3(a)(1) and prior Tenth Circuit cases (including Garcia, Lente, Gieswein, and Shaw), the panel held that the upward variance to 36 months was justified by specific, articulable facts showing House’s criminal history category substantially underrepresented his dangerousness and risk of recidivism.

Accordingly, the Tenth Circuit affirmed the judgment.

III. Analysis

A. Precedents and Authorities Cited

1. United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

Hahn provides the controlling framework for enforcing appellate waivers in plea agreements. It requires a three-part inquiry:

1. Whether the appeal falls within the scope of the waiver;
2. Whether the defendant knowingly and voluntarily waived his appellate rights; and
3. Whether enforcement would result in a miscarriage of justice.

In House, the panel:

• Found the waiver language—covering “the right to appeal [his] sentence … and the manner in which the sentence is determined, including its procedural reasonableness”—broad and unambiguous. A challenge focused on “unreliable hearsay” in the sentencing process plainly goes to the “manner” of sentencing and “procedural reasonableness.”
• Noted that House did not challenge the knowing and voluntary nature of the waiver, nor did he argue that enforcing it would create a miscarriage of justice.
• Observed that House’s opening brief did not even acknowledge the waiver, an omission that greatly undermined any possible argument against its enforcement.

Thus, under Hahn, enforcement was straightforward: the issue fell within the waiver’s scope, and there was no articulated basis to avoid the waiver.

2. United States v. Guevara‑Lopez, 147 F.4th 1174 (10th Cir. 2025)

Guevara‑Lopez (as quoted in the opinion) defines the Tenth Circuit’s approach to substantive reasonableness review:

• Standard: abuse of discretion, considering the totality of the circumstances.
• Definition of abuse of discretion: a sentence that is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
• Deference: “substantial deference” to the district court’s superior position in factfinding and weighing the § 3553(a) factors.
• No presumption of unreasonableness for outside-Guidelines sentences; but when a court varies upward, appellate courts must:
  • Consider the extent of the deviation; and
  • Ensure the justification is sufficiently compelling to support that degree of variance.

House applies this framework to a significant upward variance—from 10–16 months to 36 months—and concludes that the district court sufficiently justified the deviation based on specific findings about House’s violent history and recidivism risk.

3. U.S. Sentencing Guidelines §§ 4A1.2(e) and 4A1.3(a)(1)

• U.S.S.G. § 4A1.2(e) sets the time frame for counting prior sentences:
  • Subsection (e)(1) requires counting sentences of imprisonment more than 13 months if imposed within 15 years of the instant offense (or if incarceration extended into that 15‑year window).
  • Older convictions generally do not generate criminal history points, even if serious.
• U.S.S.G. § 4A1.3(a)(1) allows an upward departure where reliable information indicates that the criminal history category “substantially under-represents”:
  • The seriousness of the defendant’s criminal history; or
  • The likelihood that the defendant will commit other crimes.
  The commentary acknowledges that the Guidelines’ scoring rules will inevitably miss some aggravating aspects of criminal history.

In House, the defendant attempted to use § 4A1.2(e)(1) as a substantive shield, arguing the court improperly relied on old convictions and protective orders that could not be scored. The Tenth Circuit rejected this, emphasizing:

• § 4A1.2(e) regulates how to calculate points, not what information may inform § 3553(a) analysis; and
• § 4A1.3(a)(1) explicitly contemplates upward adjustments when the formal category underrepresents seriousness or recidivism risk—precisely what the district court found here.

4. United States v. Garcia, 946 F.3d 1191 (10th Cir. 2020), and United States v. Lente, 759 F.3d 1149 (10th Cir. 2014)

Garcia and Lente both confirm that:

• Although § 4A1.3 speaks in terms of a “departure,” its policy rationale is equally applicable to variances under § 3553(a) in the post‑Booker regime; and
• District courts may rely on the notion of underrepresented criminal history to justify sentences above the advisory range.

House follows the same reasoning: the district court’s upward variance—though technically a variance and not a Guidelines “departure”—is consistent with the policy behind § 4A1.3, because the formal Category I did not reflect the gravity of House’s background or his danger to the public.

5. United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018), and United States v. Shaw, 471 F.3d 1136 (10th Cir. 2006)

Both cases involve affirmances of substantial upward variances where criminal history categories understated the seriousness of the defendants’ past conduct:

• In Gieswein, the Tenth Circuit approved a jump from a Guidelines range of 92–115 months to 240 months based on “particular facts” of the defendant’s history showing that his criminal history category “dramatically underrepresented” the degree of his misconduct.
• In Shaw, the court found “substantial justification” for an above-Guidelines sentence when the defendant’s criminal history score and category substantially underrepresented his criminal history’s seriousness.

By invoking these cases, the House panel signals that:

• A variance that more than doubles the high end of the Guidelines range (16 months to 36 months) is not extraordinary when compared to prior Tenth Circuit cases; and
• The key inquiry is whether the district court offers concrete, record-based reasons showing that the Guidelines’ criminal history category is misleadingly lenient.

B. The Court’s Legal Reasoning

1. Enforcement of the Appeal Waiver

The panel’s treatment of the appeal waiver is concise but instructive. It illustrates a recurring practical point: if a defendant signs a plea agreement with a broad waiver and then fails to argue against enforcement on appeal, the waiver will almost certainly be enforced.

Key aspects:

• Scope: The waiver covered “the right to appeal [his] sentence … and the manner in which the sentence is determined, including its procedural reasonableness.” A challenge to the reliability of evidence used at sentencing—i.e., hearsay about protective orders—is manifestly a procedural argument about “how” the sentence was fashioned.
• Silence on validity and miscarriage of justice: House did not:
  • Argue his waiver was unknowing or involuntary; or
  • Claim that enforcing it would be a miscarriage of justice under Hahn (for example, due to ineffective assistance of counsel, an illegal sentence, or prosecutorial misconduct).
  His brief’s failure even to mention the waiver allowed the court to enforce it essentially as a matter of straightforward application of Hahn.

The result: the Tenth Circuit had no occasion to examine the merits of the hearsay/protective‑order argument, leaving open (at least in this opinion) any nuanced questions about the reliability of such evidence at sentencing.

2. Characterizing the Substantive Reasonableness Claim

House argued that the district court gave “improper weight” to prior adjudications and protective orders in alleged violation of § 4A1.2(e)(1). The panel noted that this was “not a true substantive reasonableness challenge,” but rather resembled a procedural reasonableness claim—i.e., an assertion that the court misapplied the Guidelines.

Still, the panel elected to proceed on the assumption that a substantive challenge had been properly raised and rejected it on the merits. This approach serves two functions:

• It reinforces the conceptual distinction between:
  • Procedural reasonableness: the steps and methodology the court used (correct Guidelines range, consideration of § 3553(a) factors, explanation, etc.); and
  • Substantive reasonableness: the end result—whether the length of the sentence, in light of all circumstances, is reasonable.
• It ensures that, even assuming arguendo that the issue could be treated as substantive, the sentence still survives review.

3. Interaction Between § 4A1.2(e) and § 4A1.3 / § 3553(a)

The crux of House’s substantive argument was that the district court violated U.S.S.G. § 4A1.2(e)(1) by giving weight to:

• Old convictions; and
• Civil protective orders stemming from domestic abuse incidents.

The panel rejected this, emphasizing that:

• § 4A1.2(e) is about computing the criminal history score. It tells the court which prior sentences generate points; it does not prohibit the court from considering other reliable historical information for § 3553(a) purposes.
• § 4A1.3(a)(1) explicitly contemplates upward departures based on underrepresented criminal history—meaning the Guidelines themselves assume courts will sometimes look beyond the formal scoring rules when the category does not adequately reflect the defendant’s past conduct or risk.
• The Tenth Circuit has previously endorsed upward variances grounded on this same policy rationale, aligning variances with the spirit of § 4A1.3 (Garcia, Lente).

Thus, the temporal limits in § 4A1.2(e) do not function as an evidentiary exclusion rule. They do not debar the sentencer from considering old convictions, domestic incidents, or protective orders; they only affect whether those events add “points” to the Guidelines calculation.

4. District Court’s Factfinding and Use of Prior Conduct

The district court relied on a series of incidents to find that House’s Criminal History Category I underrepresented his recidivism risk and danger:

1. 2006 road rage incident: House threw bricks at victims, used his vehicle to strike two vehicles and a person, and pleaded guilty to assault and battery with a dangerous weapon, larceny of a motor vehicle, and malicious injury/destruction of property. He received a 10‑year suspended sentence.
2. 2008 domestic abuse allegation: House allegedly hit and threatened to kill his then-girlfriend (later wife).
3. 2011 domestic incident: He allegedly threatened his then-wife with a knife, attempted to choke her, and hit her multiple times when she tried to call for help. He pleaded nolo contendere to domestic abuse and battery in the presence of a minor and received a deferred 15‑month sentence.
4. 2024 alleged sexual assault of C.Y.: According to C.Y.’s testimony at sentencing, House orally and vaginally raped her, openly displayed a firearm to intimidate her, verbally threatened her, and choked her.

The district court noted that:

• The latter three incidents led to protective orders against House;
• House had been given opportunities through deferred sentences, but these did not deter him from further criminal conduct; and
• The violent conduct had not abated with age and therefore was not merely “youthful indiscretion.”

The Tenth Circuit inferred that the district court credited C.Y.’s testimony, given its reliance on her account in the § 3553(a) analysis. The appellate court highlighted that, especially in light of this recent alleged sexual assault involving a firearm—combined with a long-standing pattern of violence—the district court acted within its discretion in concluding that the Guidelines range substantially understated House’s risk and the need to protect the public.

5. Balancing the Degree of the Variance and the Justification

A critical step in substantive reasonableness review of an upward variance is assessing whether the magnitude of the variance is matched by a sufficiently strong justification.

Here:

• The Guidelines range was 10–16 months; the district court imposed 36 months—more than double the high end.
• The justification centered on:
  • A multi‑incident history of violent and domestic abuse,
  • Repeated issuance of protective orders,
  • Prior lenient dispositions (suspended and deferred sentences) that failed to deter House, and
  • The serious 2024 alleged sexual assault with a firearm.

Against the backdrop of cases like Gieswein and Shaw—approving even more dramatic upward variances where criminal history was underrepresented—the panel held that the district court’s reasoning was sufficiently compelling.

The district court tied its conclusion to specific § 3553(a) factors, including:

• Promoting respect for the law;
• Providing specific deterrence; and
• Protecting the public from further crimes by the defendant.

Because the district court:

• Articulated concrete facts;
• Related those facts to § 3553(a); and
• Used a methodology that the Guidelines themselves recognize as legitimate (underrepresented criminal history),

the panel concluded the sentence fell well within the district court’s discretion.

C. Impact and Implications

1. Strengthening the Practical Force of Appeal Waivers

House underscores several lessons about appellate waivers:

• Broad waiver language is potent. Waivers that expressly include “the manner in which the sentence is determined, including its procedural reasonableness” will normally bar most procedural challenges, including alleged reliance on unreliable evidence.
• Silence is fatal. If a defendant does not directly attack the waiver’s validity or argue a recognized miscarriage-of-justice ground, appellate courts are extremely unlikely to reach the underlying merits.
• Labeling an argument as “substantive” does not evade a waiver. The panel recognized that what House framed as substantive (misapplication of § 4A1.2(e)) was really procedural, and in any event, did not merit relief.

For defense counsel, this decision reinforces the need to:

• Draft plea agreements carefully and explain the practical consequences of broad appellate waivers; and
• Explicitly address any waiver on appeal, including why enforcement would be improper, if there is any viable argument to that effect.

2. Clarifying the Use of Old Convictions and Protective Orders

The opinion provides a clear doctrinal signal: Guidelines time limits do not control a court’s § 3553(a) analysis.

• Old convictions and domestic violence incidents that do not generate criminal history points can nevertheless be central to the determination of an appropriate sentence.
• Civil protective orders—often based on a lower burden of proof than criminal convictions—can be treated as evidence of dangerousness if the court finds the underlying information reliable.
• Uncharged alleged conduct (such as the sexual assault of C.Y.) may be considered at sentencing, particularly when supported by live testimony the court deems credible.

This has substantial practical implications:

• Defendants with old but grave histories cannot assume that “aging out” of criminal history points will prevent courts from revisiting that conduct in sentencing decisions.
• Patterns of domestic violence and related protective orders may powerfully influence risk assessments, even absent extensive recent convictions.

3. Upward Variances Based on Underrepresented Criminal History

House fits comfortably within a line of Tenth Circuit cases endorsing substantial upward variances where the criminal history category does not reflect the defendant’s true risk. The case reaffirms:

• District courts have broad discretion to invoke the underrepresented criminal history rationale; and
• Appellate courts will generally affirm such variances when the record documents repeated, serious, or escalating misconduct, especially violence, that is not fully captured in the Guidelines score.

Though nonprecedential, the opinion illustrates the type of record and explanation likely to survive substantive reasonableness review:

• Multiple, well‑documented incidents over many years;
• Protective orders and deferred/suspended sentences that failed to deter;
• Recent, serious alleged conduct consistent with older incidents; and
• Explicit linkage between those facts and specific § 3553(a) purposes (public protection, deterrence, respect for law).

4. Limits and Cautions

Because House is an “order and judgment” marked as not binding precedent (except under law-of-the-case, res judicata, and collateral estoppel), its doctrinal significance is persuasive rather than controlling. Nonetheless:

• It provides a concrete application of existing doctrine rather than announcing a new rule;
• It signals how the Tenth Circuit is likely to treat similar issues in future published opinions; and
• It may be cited consistent with Fed. R. App. P. 32.1 and Tenth Circuit Rule 32.1 for its persuasive value.

Defense counsel should remain attentive to:

• The need to contest the reliability of protective order and uncharged-conduct evidence at the sentencing hearing, building a record; and
• The strategic implications of calling or cross-examining witnesses like C.Y., whose credible testimony can become a central justification for an upward variance.

IV. Complex Concepts Simplified

1. Procedural vs. Substantive Reasonableness

• Procedural reasonableness asks: Did the judge follow a proper process?
  • Correctly calculate the Guidelines range;
  • Consider all relevant § 3553(a) factors;
  • Avoid reliance on clearly erroneous facts;
  • Explain the sentence adequately.
• Substantive reasonableness asks: Is the length of the sentence reasonable, given the totality of the circumstances and the § 3553(a) factors?

In House, the hearsay/protective‑order argument was procedural; the argument that the sentence was too severe in light of old convictions and protective orders was substantive (although the panel noted it looked procedural in disguise).

2. Appeal Waiver

An appeal waiver is a clause in a plea agreement in which the defendant voluntarily gives up some or all rights to appeal the conviction or sentence, typically in exchange for concessions by the government (such as charging or sentencing recommendations).

Courts enforce appeal waivers if:

• The issue falls within the waiver’s scope;
• The waiver was knowing and voluntary; and
• Enforcement would not produce a miscarriage of justice.

In House, the waiver barred a challenge to the “manner” of sentencing, including procedural reasonableness, and the defendant did not argue any basis to avoid enforcement.

3. Criminal History Score and Category

The Guidelines assign “points” for prior convictions and sentences. The total number of points determines the criminal history category (I–VI).

• Category I typically means 0 or 1 point—suggesting little or no prior record.
• However, points are subject to time limits under § 4A1.2(e); very old convictions often receive no points.
• Thus, someone with serious but old convictions can have Category I, although their actual risk may be higher.

House had Category I because his older felonies were too old to score—yet his life history disclosed substantial violent behavior.

4. Upward “Departure” vs. “Variance”

• A departure is a sentence outside the Guideline range based on a provision within the Guidelines themselves (for example, § 4A1.3 for underrepresented criminal history).
• A variance is a sentence outside the Guideline range based directly on the statutory sentencing factors in 18 U.S.C. § 3553(a), after the Guidelines have been fully and properly considered.

Post‑Booker, the precise label matters less than the underlying reasoning, but the Tenth Circuit has treated § 4A1.3’s policy as fully consistent with a § 3553(a)‑based upward variance, as in House.

5. U.S.S.G. § 4A1.2(e) and § 4A1.3 Explained

• § 4A1.2(e):
  • Affects which past sentences count for criminal history points;
  • Imposes time limits (e.g., 15 years) on counting older sentences;
  • Does not forbid the judge from considering those old events when deciding what sentence is appropriate under § 3553(a).
• § 4A1.3:
  • Recognizes that the criminal history category can misstate a defendant’s actual risk;
  • Authorizes upward departures where the category “substantially under-represents” seriousness or recidivism risk;
  • Serves as a policy foundation for post‑Booker variances, like in House.

6. Other Terms

• Protective order: A civil court order (often in domestic violence cases) restraining a person from contact, harassment, or threats toward another. Issued on a lower standard of proof than criminal convictions but can still inform risk assessments.
• Deferred sentence: A conviction in which judgment or sentencing is postponed; if the defendant complies with conditions, the charge may be dismissed. It is a form of leniency that courts may later view as a failed deterrent if new crimes follow.
• Nolo contendere (“no contest”) plea: The defendant does not admit guilt but also does not contest the charge. For sentencing and many collateral purposes, it is often treated similarly to a guilty plea.
• Recidivism: The tendency of a convicted criminal to reoffend.
• Hearsay at sentencing: Out-of-court statements can be considered if they carry sufficient indicia of reliability; the full rules of trial evidence generally do not apply at sentencing.

V. Conclusion

United States v. House offers a layered illustration of contemporary federal sentencing doctrine in practice.

First, it reinforces the potent effect of appeal waivers: defendants who broadly waive the right to challenge the “manner” of sentencing and later ignore the waiver on appeal will find their procedural claims barred without substantive review.

Second, it clarifies that the Guidelines’ time limits on counting prior sentences under § 4A1.2(e) do not cabin the court’s broader discretion under § 3553(a). Old convictions, domestic violence incidents, civil protective orders, and even uncharged alleged misconduct—if deemed reliable—may provide a legitimate basis for an upward variance where the formal criminal history category understates the defendant’s risk.

Third, it affirms that substantial upward variances based on underrepresented criminal history are likely to be upheld when the district court articulates a detailed factual basis linked to § 3553(a) and grounded in the policy reflected in U.S.S.G. § 4A1.3. Here, the pattern of violent behavior, failed prior leniency, and the alleged firearm-related sexual assault of C.Y. justified more than doubling the advisory range.

Although nonprecedential, House functions as a persuasive guidepost: it demonstrates how courts in the Tenth Circuit will handle appeals in which defendants with “Category I” criminal histories nevertheless present serious, long‑standing, and underrepresented danger to the public—and how carefully drafted plea waivers can insulate sentencing decisions from meaningful appellate review.