Date: Mar 3, 2026

Judicial Fact-Finding May Support U.S.S.G. § 2D1.1(b)(13)(B) Enhancements Where the Statutory Range Is Unchanged

Introduction

In United States v. Brendan Wells (11th Cir. Feb. 27, 2026) (unpublished), the Eleventh Circuit affirmed a 353-month sentence imposed after Brendan Wells pleaded guilty to federal drug-trafficking offenses involving methamphetamine, fentanyl, and cocaine, plus a firearm offense for possessing a firearm in furtherance of a drug-trafficking crime.

Wells raised two core issues on appeal:

Substantive reasonableness: whether the district court should have varied downward to reduce an asserted disparity between Wells’s sentence and a co-defendant’s 240-month sentence.
Guidelines enhancement: whether the district court violated Apprendi v. New Jersey by applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(13)(B) based on judge-found facts (marketing fentanyl-containing pills as if they were legitimately manufactured drugs).

Summary of the Opinion

The Eleventh Circuit affirmed on both grounds.

The court held the sentence was substantively reasonable because the district court permissibly emphasized Wells’s greater criminal history, recidivism, the seriousness of the offenses, and public-protection concerns, and reasonably concluded Wells was not similarly situated to his co-defendant for disparity purposes.
The court rejected the Apprendi-based challenge to the § 2D1.1(b)(13)(B) enhancement: Wells failed to preserve the constitutional argument, and in any event the enhancement affected only the Guidelines calculation, not the statutory minimum or maximum. Under circuit law, judge-found facts may be used to calculate Guidelines ranges so long as the statutory range is not altered.

Analysis

Precedents Cited

1) Review of substantive reasonableness and sentencing discretion

Gall v. United States, 552 U.S. 38 (2007): supplied the governing framework—appellate review of substantive reasonableness is deferential and proceeds under an abuse-of-discretion standard considering the “totality of the circumstances.” The panel used Gall to set the high threshold Wells needed to clear.
United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): provided the Eleventh Circuit’s articulation of when a sentence becomes substantively unreasonable (failure to consider relevant factors, reliance on improper factors, or clear error of judgment). Rosales-Bruno also supported the proposition that placing substantial weight on criminal history is consistent with § 3553(a), because multiple statutory factors relate to recidivism, deterrence, respect for the law, and public protection.
United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): reinforced that the weight assigned to any individual § 3553(a) factor is largely within the district court’s “sound discretion.” The panel relied on Riley to validate the sentencing court’s prioritization of criminal history and public safety.
United States v. Duperval, 777 F.3d 1324 (11th Cir. 2015): framed the disparity inquiry under § 3553(a)(6) as a “similarly situated” comparison. Duperval directly undercut Wells’s disparity argument by requiring more than “same case/same charges”; defendants must be similarly situated in relevant respects (notably criminal history).

2) Preservation, plain error, and Sixth Amendment sentencing limits

United States v. Straub, 508 F.3d 1003 (11th Cir. 2007): governed issue preservation. The panel used Straub to hold that Wells’s general objection that the enhancement was “unfair” (and that he allegedly did not know fentanyl was present) did not fairly present the distinct constitutional claim that jury findings were required.
United States v. Olano, 507 U.S. 725 (1993): supplied the four-part plain-error test because Wells did not preserve the Apprendi claim. This procedural posture mattered: even a close legal question becomes significantly harder to win on plain-error review.
Apprendi v. New Jersey, 530 U.S. 466 (2000): established that any fact (other than a prior conviction) increasing a sentence above the statutory maximum must be found by a jury beyond a reasonable doubt. The panel treated Apprendi as inapplicable because the enhancement did not alter the statutory maximum.
Alleyne v. United States, 570 U.S. 99 (2013): extended the jury-finding requirement to facts increasing a statutory minimum, but also distinguished such facts from “factfinding used to guide judicial discretion” within statutory limits. The panel quoted Alleyne’s distinction to explain why Guidelines factfinding remains permissible.
United States v. Charles, 757 F.3d 1222 (11th Cir. 2014): supplied the circuit’s post-Apprendi/Alleyne rule: district courts may make judicial fact findings for Guidelines calculations and enhance a sentence so long as those findings do not increase the statutory minimum or maximum authorized by the plea or verdict. Charles was the decisive doctrinal bridge supporting the enhancement.

Legal Reasoning

A) Substantive reasonableness and co-defendant disparity

The panel emphasized that § 3553(a) requires an individualized sentencing assessment, and that appellate courts do not reweigh the factors. Applying Gall v. United States, the court treated the district court’s decision as entitled to deference so long as it fell within the range of reasonable outcomes.

Wells’s principal argument—he should have received a sentence closer to his co-defendant’s—was analyzed through § 3553(a)(6) and United States v. Duperval. The district court expressly found the co-defendant comparison unpersuasive because Wells had a more significant criminal history. That finding defeated the “unwarranted disparity” claim because disparity is not “unwarranted” when defendants are not similarly situated.

The court also relied on United States v. Rosales-Bruno and United States v. Riley to approve the sentencing court’s emphasis on criminal history and recidivism—particularly the fact that Wells reoffended shortly after release from a state sentence—along with the seriousness of the drug-and-firearm conduct and public-protection concerns.

B) The § 2D1.1(b)(13)(B) enhancement and Apprendi/Alleyne

Wells attempted to constitutionalize his Guidelines dispute by arguing that the enhancement depended on facts not found by a jury or admitted in the guilty plea. The panel resolved the issue in two steps:

Procedural default: Under United States v. Straub, Wells did not preserve a true Apprendi objection, so review was limited to United States v. Olano plain error.
Merits: Applying Apprendi v. New Jersey, Alleyne v. United States, and especially United States v. Charles, the court held there was no error because the two-level increase affected only the advisory Guidelines range and did not change the statutory minimum or maximum. As Alleyne recognizes, judicial factfinding that informs sentencing discretion within statutory bounds does not trigger the Sixth Amendment jury requirement described in Apprendi/Alleyne.

Impact

Although unpublished and “not for publication,” the decision is a clear illustration of two recurring Eleventh Circuit themes that will continue to shape sentencing litigation:

Co-defendant disparity arguments are narrow: a defendant must show the comparator is genuinely “similarly situated” under United States v. Duperval; differences in criminal history are often sufficient to justify different outcomes.
Apprendi/Alleyne do not constitutionalize Guidelines disputes: consistent with United States v. Charles, judge-found facts may support Guidelines enhancements (including under U.S.S.G. § 2D1.1(b)(13)(B)) so long as the statutory sentencing range authorized by the plea/verdict is unchanged.

Practically, the opinion also underscores a litigation lesson: to obtain meaningful appellate review of a Sixth Amendment sentencing claim, counsel must clearly articulate the constitutional basis at sentencing; otherwise, the defendant faces the steep obstacles of plain-error review.

Complex Concepts Simplified

Substantive reasonableness: Whether the length of the sentence is reasonable in light of the § 3553(a) factors. It is not enough to show another sentence could have been reasonable; the defendant must show the sentence imposed was outside the range of permissible outcomes.
“Similarly situated” under § 3553(a)(6): A co-defendant’s lower sentence does not automatically show an “unwarranted disparity.” Courts compare relevant similarities—especially criminal history, role, conduct, cooperation, and other sentencing drivers.
Guidelines enhancements vs. statutory penalties: The Sentencing Guidelines influence the advisory range. Apprendi/Alleyne apply when a fact increases the legally authorized statutory ceiling or floor. Facts that only change the advisory Guidelines calculation ordinarily may be found by the judge.
Plain-error review: A demanding appellate standard applied when an argument was not preserved below. The defendant must show a clear/obvious error that affected substantial rights and seriously harmed the integrity of the proceedings.

Conclusion

United States v. Brendan Wells affirms a lengthy drug-and-firearm sentence by (1) rejecting a co-defendant disparity argument where the defendants were not similarly situated due to differing criminal histories, and (2) reiterating that Apprendi v. New Jersey and Alleyne v. United States do not bar district courts from applying Guidelines enhancements based on judicial factfinding when the enhancement does not change the statutory minimum or maximum, consistent with United States v. Charles. The decision’s broader significance lies in its confirmation of the narrow lane for § 3553(a)(6) disparity claims and the continued constitutional divide between statutory sentencing facts and advisory Guidelines facts.