No Presumption Against Upward Variances: Tenth Circuit Affirms Use of Uncharged Domestic-Violence Conduct in § 3553(a) Analysis

Case: United States v. Bright, No. 24-6238 (10th Cir. Nov. 4, 2025)

Court: United States Court of Appeals for the Tenth Circuit

Disposition: Sentence affirmed; upward variance to 84 months in § 922(g)(1) case held substantively reasonable.

Note: This Order and Judgment is nonprecedential but citable for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Introduction

This appeal asked whether an 84-month sentence—an upward variance from an advisory range of 33 to 41 months—was substantively reasonable for a felon-in-possession conviction under 18 U.S.C. § 922(g)(1). The district court grounded the variance in the defendant’s criminal history, including uncharged and unadjudicated domestic-violence conduct described in an uncontested Presentence Investigation Report (PSR), his pattern of illegal firearm possession, obstruction while detained, and the fact he offended while under a suspended state sentence.

On appeal, Gregory Lamont Bright contended the district court overemphasized non-offense domestic-violence allegations and failed to explain why the Guidelines range was inadequate. The Tenth Circuit rejected those arguments, reaffirming two central principles in federal sentencing:

There is no presumption of unreasonableness for sentences outside the Guidelines range; a district court need not first explain why a Guidelines sentence is insufficient before varying upward (citing Gall v. United States).
District courts may rely on uncontested PSR facts, including uncharged and unadjudicated conduct such as domestic violence, when applying the holistic § 3553(a) framework (citing United States v. Mateo).

Summary of the Opinion

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, the Tenth Circuit affirmed Bright’s sentence as substantively reasonable under abuse-of-discretion review. The panel emphasized:

The district court conducted a holistic § 3553(a) analysis, explicitly tying the variance to Bright’s history and characteristics, the seriousness of the offense, respect for the law, just punishment, deterrence, and public protection.
The court permissibly considered uncharged domestic-violence conduct and other uncontested PSR facts as part of Bright’s history and dangerousness.
Bright’s argument that the district court was required to explain why a Guidelines sentence was insufficient improperly suggests a presumption against outside-Guidelines sentences, which Gall forbids.
To the extent Bright newly argued in reply that the court sentenced him “as if” convicted of domestic-violence offenses (citing United States v. Allen), the panel deemed that argument waived; in any event, the case is distinguishable.

Because the 84-month sentence fell within “the range of rationally available choices” supported by the record and § 3553(a), the panel affirmed.

Background and Procedural History

Police responded to a domestic disturbance involving Bright and J.S. Officers observed bruising on J.S., obtained her consent to search, and found a .40 caliber handgun and a short-barreled 20-gauge shotgun (14.75-inch barrel). After arrest, Bright urged J.S. to claim the guns were hers and not appear in court. He was federally charged with felon-in-possession, witness tampering, and later possession of an unregistered firearm. Pursuant to a plea agreement, he pled to the § 922(g)(1) count.

The initial PSR set an advisory range of 41–51 months, including a two-level obstruction enhancement; it also (incorrectly) treated the short-barreled shotgun as a destructive device. After sustaining objections on that latter point, the court recalibrated the range to 33–41 months. Both sides sought variances: Bright requested time served (~20 months); the government sought the statutory maximum of 120 months. The district court imposed 84 months, granting in part the government’s request.

Analysis

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007): The foundational case guiding substantive review. The panel reiterated that the same abuse-of-discretion standard applies inside and outside the Guidelines; there is no presumption of unreasonableness for outside-Guidelines sentences. Appellate courts may consider the extent of deviation but must defer to the district court’s reasoned judgment when § 3553(a) supports the variance.
United States v. Williams, 10 F.4th 965 (10th Cir. 2021): Cited for the abuse-of-discretion standard for substantive reasonableness.
United States v. Lente, 759 F.3d 1149 (10th Cir. 2014): Emphasizes a “holistic inquiry” into § 3553(a), not a rigid checklist or equal weighting of factors.
United States v. Cookson, 922 F.3d 1079 (10th Cir. 2019): Confirms that district courts need not afford equal weight to each § 3553(a) factor.
United States v. Blair, 933 F.3d 1271 (10th Cir. 2019): Articulates the “range of rationally available choices” formulation and warns appellate courts against reweighing sentencing factors.
United States v. Mateo, 471 F.3d 1162 (10th Cir. 2006): Authorizes reliance on uncontested PSR facts, including arrests and uncharged conduct, to draw conclusions relevant to § 3553(a), echoing Congress’s directive that no limitation be placed on information about a defendant’s background and conduct for sentencing purposes.
United States v. Allen, 488 F.3d 1244 (10th Cir. 2007): Recognizes that upward variances can go too far when a court effectively sentences as if the defendant had been convicted of unrelated crimes. The panel deemed Bright’s new Allen-based argument waived and, alternatively, distinguishable.
United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019): Bars new arguments raised for the first time in a reply brief.
United States v. McComb, 519 F.3d 1049 (10th Cir. 2007): Highlights the broad discretion district courts possess in balancing incommensurable considerations at sentencing.

Legal Reasoning

1) Standard of review and deference to district courts. The panel applied the abuse-of-discretion standard across the board, citing Gall and Williams. Appellate courts do not “reweigh” § 3553(a) factors (Blair); they ask whether the sentence lies within a rational range supported by facts and law. The district court’s explanation showed it considered the pertinent factors and articulated reasons tied to the record.

2) No requirement to first prove Guidelines inadequacy. Bright argued the court failed to explain why the Guidelines were insufficient. The panel rejected the premise as legally unsupported and contrary to Gall’s teaching that outside-Guidelines sentences are not presumptively unreasonable. Requiring a threshold “inadequacy” finding would smuggle in an impermissible presumption against variances.

3) Reliance on uncharged domestic-violence conduct was permissible. The court relied on uncontested PSR facts about domestic-violence incidents, including the event that precipitated the firearm discovery and other dismissed or unadjudicated matters. Mateo expressly permits considering such information under § 3553(a)(1) (history and characteristics), § 3553(a)(2)(B)–(C) (deterrence and protection of the public), and more generally under the statutory policy that no limitations be placed on background information in sentencing. Defense counsel agreed at sentencing that the domestic-violence context was a proper consideration, though she urged it not be the “major factor.”

The district judge acknowledged this was “an illegal firearms case,” but found it “very disingenuous” to suggest domestic-violence history was irrelevant. The judge tied the violence history to public-safety concerns, Bright’s recidivism, and the inadequacy of prior law-enforcement contacts to deter him. The court also relied on other aggravators: repeated illegal firearm possession, obstruction while detained, and commission of the offense while under a suspended sentence.

4) Distinguishing sentencing for conduct versus using conduct to inform § 3553(a). In reply, Bright analogized to Allen, arguing he was sentenced “as though he had been convicted” of domestic-violence offenses. The panel deemed the argument waived under Leffler. In any event, the court explained that Allen is materially different: there, the sentencing court effectively replaced the jury by imposing a sentence as if the defendant had been convicted of unrelated crimes, driving a 185-month upward differential. Here, the district court did not mimic a separate conviction; it used the uncontested PSR facts to inform a holistic § 3553(a) analysis, and the variance (to 84 months) was calibrated to the articulated purposes of sentencing.

5) Extent of the variance. While substantial (doubling the top of the advisory range), the 84-month sentence remained within the “rationally available” window when viewed through Gall’s deferential prism, considering Bright’s repeat weapons offenses, violent history, obstruction, and supervision status at the time of the instant offense. The district court declined the government’s request for the statutory maximum (120 months), explaining that such a sentence would exceed “just punishment” given the offense and mitigating considerations—reinforcing that the court exercised discriminating judgment rather than ratifying a punitive ceiling.

Impact and Implications

For district courts: The opinion reinforces broad discretion to consider uncharged and unadjudicated conduct described in an uncontested PSR, including domestic violence, when weighing § 3553(a). Courts need not first conclude the Guidelines are inadequate in order to vary upward; rather, they must explain how the chosen sentence advances statutory purposes.

For defense counsel: The case underscores the importance of objecting to PSR paragraphs and challenging the reliability of uncharged allegations at sentencing. Concessions that certain conduct is “relevant” can blunt later claims that the sentencing court overrelied on that conduct. Arguments analogizing to Allen should be preserved and developed in opening briefs; raising them only in reply risks waiver.

For prosecutors: The decision offers persuasive support for upward variances in firearm cases where domestic-violence conduct heightens public-safety concerns. Building a robust record—e.g., victim statements, corroborating observations of injuries, call records reflecting obstruction—helps satisfy the “rationally available choices” threshold and withstand substantive-reasonableness review.

Systemically: Although nonprecedential, the opinion aligns with Tenth Circuit jurisprudence granting wide latitude to consider reliable, uncontested conduct beyond the offense of conviction. Expect continued acceptance of upward variances grounded in patterns of violence and recidivist gun possession, provided district courts clearly connect facts to § 3553(a) purposes and acknowledge mitigating considerations.

Complex Concepts Simplified

Substantive vs. procedural reasonableness: Procedural reasonableness asks whether the sentencing process was correct (e.g., accurate Guidelines calculation, consideration of § 3553(a), explanation). Substantive reasonableness asks whether the length of the sentence is reasonable in light of § 3553(a). Bright waived any procedural challenge via an appeal waiver; only substantive reasonableness was at issue.
Variance vs. departure: A “departure” is a Guidelines-authorized adjustment within the Guidelines system; a “variance” is a discretionary sentence outside the Guidelines range based on § 3553(a). Bright’s 84-month sentence was an upward variance.
Presentence Investigation Report (PSR): A report prepared by probation that details offense conduct and the defendant’s background. Facts in the PSR are accepted unless specifically objected to; uncontested PSR facts can support sentencing findings.
Uncharged/unadjudicated conduct: Conduct for which the defendant has not been convicted. Federal sentencing law allows courts to consider such conduct, if reliable, in assessing the defendant’s history and the need for deterrence and public protection.
Abuse-of-discretion review: A highly deferential appellate standard. The question is not whether the appellate court would have imposed the same sentence, but whether the district court’s sentence falls within a range of reasonable outcomes supported by the record and law.
No presumption against variances: Per Gall, appellate courts neither presume within-Guidelines sentences are reasonable nor outside-Guidelines sentences are unreasonable. The focus is on the district court’s explanation and linkage to § 3553(a).
Waiver of arguments in reply: New arguments raised for the first time in a reply brief are generally deemed waived because the appellee lacks a fair chance to respond.

Conclusion

United States v. Bright is a forceful reaffirmation of the deference owed to district courts in sentencing. Two teachings stand out: First, there is no threshold requirement that a court prove the Guidelines inadequate before varying upward; the proper inquiry is whether the court’s holistic § 3553(a) analysis and explanation rationally support the sentence. Second, a sentencing court may consider uncharged, unadjudicated domestic-violence conduct described in an uncontested PSR when assessing the defendant’s history, deterrence needs, and public safety risk.

While nonprecedential, the opinion harmonizes with existing Tenth Circuit doctrine (Gall, Mateo, Blair, McComb) and offers persuasive guidance: so long as district courts draw from reliable record facts and articulate how those facts bear on statutory sentencing purposes, substantial upward variances—even doubling the top of the advisory range—can be sustained on appeal. For practitioners, the case highlights the critical importance of PSR litigation, preservation of arguments, and careful linkage of facts to § 3553(a) factors.