Plain-Error Limits on Appellate Review of Unexplained Upward Departures Under U.S.S.G. § 5K2.8: Commentary on United States v. Mendibles (10th Cir. 2025)

Plain-Error Limits on Appellate Review of Unexplained Upward Departures Under U.S.S.G. § 5K2.8:
Commentary on United States v. Mendibles (10th Cir. 2025)

I. Introduction

In United States v. Mendibles, No. 25-8009 (10th Cir. Nov. 21, 2025), the Tenth Circuit confronted a recurring sentencing problem: what happens when a district court clearly errs by failing to explain the extent of an upward departure under the Sentencing Guidelines, but the defendant did not object at sentencing?

The case arises from a particularly brutal second-degree murder prosecuted in the District of Wyoming. Kevin Joseph Mendibles, initially indicted for first-degree murder, entered into a Rule 11(c)(1)(C) plea agreement to second-degree murder, with a ceiling of 50 years’ imprisonment. The district court applied a six-level upward departure under U.S.S.G. § 5K2.8 (the “extreme conduct” provision), raising the advisory range from 188–235 months to 360 months to life, and then imposed a 40-year (480‑month) sentence.

On appeal, Mendibles did not dispute the applicability of § 5K2.8 itself. Instead, he argued that the district court committed procedural error by failing to explain why it chose a departure of six offense levels, as opposed to some lesser increase, and that this omission required resentencing. The government conceded that the explanation was deficient but argued that, because there was no contemporaneous objection, review was limited to plain error and the defendant could not show prejudice.

The Tenth Circuit agreed that the district court erred in not explaining the degree of departure. But applying plain-error review, the panel held that Mendibles failed to demonstrate that the error affected his substantial rights. Consequently, the 40‑year sentence was affirmed.

Although issued as an unpublished “Order and Judgment” without binding precedential force, the decision is citable for its persuasive value and offers a significant illustration of how the Tenth Circuit applies plain-error review to unpreserved procedural sentencing errors involving upward departures under § 5K2.8.

II. Factual and Procedural Background

A. The offense conduct

The Presentence Investigation Report (PSR), whose factual account was unchallenged, described the following:

  • Mendibles lived with the victim, I.W. An argument arose because he believed she was sexually exploiting her daughter.
  • After the argument, I.W. expelled him from the home. He later returned that night and subjected her to a severe beating and stabbing.
  • Mendibles reported that he “wanted her to feel” the beating and struck her with a chair and another object.
  • He first stabbed her below the waist, then, after the beating, stabbed her in the heart so that “she would not suffer.”
  • He then placed her on the bed, covered her body, and left the residence without seeking assistance, though he knew she was suffering.
  • He reported being intoxicated and under the influence of methamphetamine.
  • Law enforcement responded at 9:19 p.m. after another person found I.W. She was still breathing, but medical personnel could not resuscitate her, and she was pronounced dead at 9:47 p.m.
  • The bedroom was in disarray with blood on walls and floors. An autopsy found:
    • Four stab wounds (two to the sternum; two to the sacrum/groin region)
    • Several cuts on her body
    • Extensive blunt-force facial injuries
    • Significant blunt-force head trauma
  • The soles of I.W.’s boots had no blood, suggesting she was not moving or standing during the beating and attack.

B. Guidelines calculation and PSR recommendation

The PSR calculated:

  • Total offense level: 35
  • Criminal History Category: II
  • Advisory Guidelines range: 188–235 months’ imprisonment

However, the PSR concluded that Mendibles’s behavior constituted “gratuitous infliction of injury” and recommended an upward departure under U.S.S.G. § 5K2.8 (extreme conduct) to a sentence of 50 years — the maximum permissible under the Rule 11(c)(1)(C) plea agreement. Notably, the PSR did not specify how many offense levels should be added to reach this recommendation; it proposed only an outcome (50 years), not the intermediate Guideline mechanics.

C. The parties’ sentencing positions

At sentencing:

  • Government:
    • Requested a 50-year sentence, the cap under the plea agreement.
    • Called the case agent, who underscored evidence of brutality, including that the lack of blood on the victim’s boots indicated she was not on her feet during the beating.
    • Emphasized that Mendibles knew the victim was suffering but chose to kill her and leave, resulting in a prolonged, painful death.
  • Defense:
    • Argued that, while the crime was “horrible,” it was not unusually brutal relative to other second-degree murder or voluntary manslaughter cases.
    • Contended that an upward departure under § 5K2.8 was not warranted.
    • Submitted mitigating material (a mitigation report, letters from family, childhood images).
    • Cited sentencing statistics:
      • Average sentence for similar second-degree murder defendants: 198 months
      • Median sentence: 200 months
    • Requested a sentence at the low end of the original Guidelines range: 188 months.
  • Defendant’s statement:
    • Apologized to the victim’s family and acknowledged the horror of the crime.
    • Stated he was intoxicated and could “hardly remember exactly what happened.”

D. The district court’s sentence

The district court:

  • Formally agreed to be bound by the 50-year cap in the Rule 11(c)(1)(C) agreement.
  • Adopted the PSR’s base calculations: offense level 35, CHC II, 188–235 months.
  • Discussed at length:
    • The § 3553(a) factors, especially those related to offenses resulting in death.
    • The text and purpose of U.S.S.G. § 5K2.8 (“extreme conduct”).
    • The factual brutality of the offense in relation to those factors.
  • Granted the government’s request for a six-level upward departure under § 5K2.8, raising the offense level from 35 to 41. This yielded a new advisory range of 360 months to life.
  • Justified the use of § 5K2.8 in general terms, finding that the “unusually heinous, prolonged, cruel, brutal, and degrading” manner in which Mendibles killed I.W. warranted the enhancement.
  • Crucially, did not explain why the specific increase was six levels (as opposed to, say, two, three, or four levels).
  • Imposed a 480‑month (40‑year) sentence, within the elevated advisory range and below the 50‑year cap.

III. Summary of the Tenth Circuit’s Decision

The Tenth Circuit’s resolution can be distilled into several key holdings:

  1. Standard of Review: Because Mendibles did not object at sentencing to the adequacy of the district court’s explanation for the degree of the § 5K2.8 departure, the appellate court applied plain-error review to that procedural challenge.
  2. Existence of Error: The court accepted (and the government conceded) that the district court committed procedural error by failing to explain its choice of a six-level upward departure — that is, it did not sufficiently justify the extent of the departure.
  3. No Prejudice Under Plain-Error Review: Despite recognizing error, the panel held that Mendibles failed to demonstrate that the error affected his substantial rights. He could not show a “reasonable probability” that a more detailed explanation of the chosen departure level would have resulted in a lower sentence.
  4. Affirmance of the Sentence: Because the third prong of plain-error review (effect on substantial rights) was not satisfied, the court affirmed the 40‑year sentence without reaching the fourth prong (effect on the fairness, integrity, or public reputation of judicial proceedings).
  5. Characterization of the Offense: The court emphasized that Mendibles’s crime “closely resembled first-degree murder,” that the plea agreement allowed up to 50 years, and that the PSR recommended 50 years. Against that backdrop, the panel found it was not reasonably probable the district court would have imposed a lower sentence had it been more explicit about why it chose a six-level departure.

Thus, Mendibles stands as a clear illustration of how difficult it is for a defendant to obtain relief for unpreserved procedural sentencing errors concerning the explanation of an upward departure, particularly in cases of extreme brutality.

IV. Detailed Analysis

A. The Legal Framework

1. U.S.S.G. § 5K2.8 — “Extreme Conduct”

Section 5K2.8 of the Sentencing Guidelines states that:

If the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonged pain or humiliation.

Several features are worth emphasizing:

  • It is a departure provision — that is, it authorizes the court to impose a sentence outside the otherwise applicable Guideline range.
  • The provision is purposely open-ended. It does not prescribe a fixed number of offense levels. Instead, the court must decide both:
    1. Whether the conduct qualifies as “unusually heinous, cruel, brutal, or degrading,” and
    2. By how much the Guideline range should be increased to reflect that extra severity.
  • “Gratuitous infliction of injury” and “prolonged pain” are explicit examples, aligning closely with Mendibles’s described conduct (severe beating, multiple stab wounds, knowledge of ongoing suffering, and delayed death).

2. Departures vs. variances

In federal sentencing, it is important to distinguish:

  • Guideline departures (like § 5K2.8): adjustments to the sentencing range authorized by the Guidelines themselves, based on enumerated factors.
  • § 3553(a) variances: deviations from the advisory Guideline range based solely on the statutory sentencing factors in 18 U.S.C. § 3553(a) (e.g., nature of the offense, history and characteristics of the defendant, need for deterrence).

Here, the district court used § 5K2.8 as a departure tool: it formally adjusted the offense level from 35 to 41, thereby altering the advisory range. It also discussed § 3553(a), but the key procedural issue on appeal was the explanation for that six-level Guidelines departure.

3. The duty to explain a sentence and the extent of departures

Under 18 U.S.C. § 3553(c), a sentencing judge must state reasons for the particular sentence imposed, and when departing from the advisory range, courts are expected to explain both:

  • Why a departure is warranted at all; and
  • Why the degree of the departure is appropriate (e.g., why a three-level instead of a one-level increase).

This obligation is not merely formal. It:

  • Promotes transparency and rationality in sentencing;
  • Facilitates meaningful appellate review; and
  • Helps ensure similarly situated defendants are treated similarly.

In Mendibles, the Tenth Circuit agreed that the district court failed to perform the second part of this duty: it did not explain how it translated its factual findings into a six-level increase under § 5K2.8.

4. Plain-error review

The core doctrinal framework comes from the Supreme Court and is summarized by the Tenth Circuit in United States v. Goode and United States v. Bustamante-Conchas. When a defendant fails to object contemporaneously, an appellate court reviews for “plain error,” asking:

  1. Was there an error?
  2. Was the error plain (clear or obvious under current law)?
  3. Did the error affect substantial rights (usually, did it affect the outcome — here, the sentence)?
  4. If so, should the appellate court exercise its discretion to correct the error because it seriously affects the fairness, integrity, or public reputation of judicial proceedings?

The third prong is critical in Mendibles. To show that an error affected substantial rights, a defendant must generally show a “reasonable probability that, but for the error, the result would have been different.”1 It is not enough to show that the error could have changed the outcome; there must be a meaningful likelihood that it would have.

B. Precedents Cited and Their Role in the Decision

1. United States v. Romero, 491 F.3d 1173 (10th Cir. 2007)

Romero is cited for the proposition that when a defendant fails to object at sentencing to the court’s explanation of its sentence, any procedural challenge to that explanation is subject to plain-error review.

In Romero, the Tenth Circuit:

  • Emphasized that objections must be made contemporaneously so that the district court has a fair opportunity to correct any error.
  • Applied plain-error review when such objections were not preserved.

In Mendibles, this precedent frames the entire appellate inquiry: because defense counsel did not object to the adequacy of the explanation for the six-level departure, the panel applied the demanding plain-error standard rather than more forgiving de novo or abuse-of-discretion review that might apply to preserved procedural error.

2. United States v. Uscanga-Mora, 562 F.3d 1289 (10th Cir. 2009)

Uscanga-Mora plays a central role in Mendibles, particularly on the question of prejudice (the third prong of plain error). In that case, as in Mendibles:

  • The defendant complained on appeal about the adequacy of the district court’s sentencing explanation.
  • The issue was not preserved by contemporaneous objection.
  • The Tenth Circuit applied plain-error review and emphasized that the defendant had to show a reasonable probability the sentence would have been different but for the procedural error.

The Mendibles panel quotes Uscanga-Mora approvingly:

“The defendant thus received a sentence merited by the evidence, and we cannot say—as we would have to in order to find plain error—that, but for the claimed error, the defendant's sentence would have been any different.”

This quotation is the template for the court’s bottom-line reasoning in Mendibles: given the brutality of the crime, the plea agreement’s cap, and the PSR’s recommendation, the panel saw no reasonable probability that a more detailed explanation of why the departure was six levels (as opposed to some other number) would have led to a sentence lower than 40 years.

3. United States v. Goode, 483 F.3d 676 (10th Cir. 2007)

Goode is cited for the general formulation of the plain-error standard. It underscores:

  • The four-prong structure described above.
  • That “plain” means clear or obvious under current law.
  • That even when the first three prongs are met, the court has discretion whether to correct the error.

While Mendibles acknowledges error and likely plainness (particularly in light of the government’s concession), it stops at the third prong, finding no effect on substantial rights. Thus, Goode supplies the doctrinal background, but Uscanga-Mora provides the applied model.

4. United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc)

Bustamante-Conchas is cited in Mendibles for the definition of what it means for an error to affect substantial rights: there must be “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.”

In Bustamante-Conchas, the en banc Tenth Circuit dealt in part with allocution issues and the prejudice standard in unpreserved sentencing errors. The key takeaway, imported into Mendibles, is that:

  • The defendant bears the burden of showing prejudice on plain-error review.
  • The threshold is “reasonable probability,” a standard more demanding than mere possibility, but less than “more likely than not.”

Applying that standard, the Mendibles panel asked whether it was reasonably probable that, had the district court fully explained why it selected a six-level departure rather than a smaller one, the sentence would have been lower. It answered “no,” given the record as a whole.

5. United States v. Robertson, 568 F.3d 1203 (10th Cir. 2009)

Robertson is cited for the proposition that a district court’s rationale for a Guidelines enhancement (or departure) can be upheld when it is clearly supported by the record, even if the explanation is not extensive.

In Robertson, the Tenth Circuit recognized that:

  • While sentencing courts must articulate reasons, the required level of detail can vary with the complexity of the issues.
  • As long as the rationale is discernible and supported by the record, appellate courts are reluctant to disturb a sentence.

In Mendibles, the panel invokes Robertson to underscore that the substantive rationale for invoking § 5K2.8 was clearly supported by the record. The error was not that the court wrongly applied § 5K2.8, but that it failed to explain its

C. The Court’s Legal Reasoning in Mendibles

1. Step one: Error and plainness

The panel accepted the parties’ shared view that the district court erred in not explaining the degree of the § 5K2.8 departure. Under Tenth Circuit and broader sentencing jurisprudence, when a court departs upward from the Guidelines, it must say more than simply “I think a six-level increase is appropriate.” It must:

  • Connect specific factual findings to the decision to depart; and
  • Explain why the magnitude of that departure is proportionate to those facts.

Here, the district court did the first but not the second — it described in detail the brutality of the offense and concluded that § 5K2.8 applied, but it did not articulate how those facts translated into a six-level increase. That insufficiency is the acknowledged procedural error.

2. Step two: Effect on substantial rights (prejudice)

The crucial analytical step is the third prong of plain-error review: did the incomplete explanation create a reasonable probability of a different outcome (a lower sentence)?

To answer this, the court looked at the entire sentencing context:

  • Similarity to first-degree murder: The panel observed that the offense “closely resembled first-degree murder.” Though Mendibles pled to second-degree murder, the facts — a return to the victim’s home after being expelled, a sustained beating, multiple stab wounds, and an ultimately fatal heart stab — suggested a level of deliberation and cruelty nearing or overlapping the realm of premeditated killing.
  • Plea agreement cap: The Rule 11(c)(1)(C) plea contemplated a sentence up to 50 years, and the district court expressly agreed to be bound by that cap. This indicates that both parties, and ultimately the court, viewed a very long sentence as within the reasonable range of outcomes.
  • PSR recommendation: The PSR did not merely suggest a departure; it recommended the maximum term under the plea agreement: 50 years. The district court ultimately imposed a sentence below that recommendation (40 instead of 50 years).
  • Nature and brutality of the conduct: The panel repeatedly referenced the extraordinary brutality — the “unusually heinous, prolonged, cruel, brutal, and degrading” manner of killing, as found by the district court. This made a substantial upward departure intuitively justifiable in the panel’s view.
  • New Guideline range: With the six-level departure, the advisory range was 360 months to life. The imposed 480‑month sentence was:
    • Within that elevated Guideline range; and
    • Significantly below the life-sentence ceiling that would have applied but for the contractual 50-year cap.

Against this backdrop, the Tenth Circuit concluded that:

“This is not a case where a sentencing judge’s further consideration of subtle issues regarding how to precisely calculate the proper level of departure would be likely to affect the ultimate sentencing decision.”

In other words, the panel saw the six-level increase and the 40‑year sentence as firmly anchored in the horrific facts and the plea structure. Requiring the district court to explain in more detail why it chose “six” rather than “four” or “five” levels would not, in the court’s view, have changed the bottom-line sentencing judgment.

Because the defendant failed to show a reasonable probability of a lower sentence, the panel held that his substantial rights were not affected.

3. Step three: Discretionary correction (fourth prong)

Having found no prejudice, the panel did not reach the fourth prong of the plain-error test (whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings). Without the third prong, appellate courts lack authority to grant relief under the plain-error doctrine.

D. Application to the Particular Facts of Mendibles

The panel’s approach is highly fact-specific. Several features of the record are critical to understanding why the court was comfortable finding no prejudice:

  • Extreme violence consistent with § 5K2.8’s examples: The combination of:
    • A severe beating involving a chair and a second object;
    • Multiple stab wounds in different body regions;
    • Observable prolonged suffering prior to death;
    • The defendant’s deliberate choice not to seek help but instead to kill her; and
    • Leaving the victim to die alone;
    fits naturally within § 5K2.8’s explicit references to “gratuitous infliction of injury” and “prolonged pain.”
  • Near-first-degree character: The fact that Mendibles returned to the home after being ejected and then committed the killing supports the panel’s statement that the crime “closely resembled first-degree murder.” This suggests that, had he gone to trial and been convicted of first-degree murder, an even harsher sentence would have been plausible.
  • The 40‑year sentence relative to possible outcomes: From a comparative standpoint:
    • Guideline range before departure: 188–235 months (approximately 15.7–19.6 years).
    • Guideline range after six-level departure: 360 months to life (30 years to life).
    • Statutory/plea cap: 50 years (600 months).
    • Actual sentence: 40 years (480 months), which is:
      • Above the bottom of the post-departure Guideline range (360 months);
      • Below life; and
      • Below the PSR’s and government’s recommended 50 years.
    The court thus saw the 40‑year sentence as squarely within a zone the district court was likely to choose, even if it had more thoroughly articulated the degree of departure.
  • Sentencing statistics vs. individualized facts: Defense counsel’s reliance on national averages for second-degree murder (198 months average; 200 months median) did not carry significant weight on appeal. The panel’s reasoning emphasized individualized sentencing based on the “unusually heinous” nature of this specific offense, not on statistical norms.

E. Impact and Relationship to Existing Sentencing Doctrine

1. Reinforcing the burden on defendants under plain-error review

Mendibles illustrates, and subtly reinforces, a doctrinal point that is critical for practitioners: unpreserved procedural sentencing errors are very difficult to remedy on appeal.

Even where:

  • The government concedes error;
  • The error affects a considerable upward departure (here, from a range topping out at 235 months to a sentence of 480 months); and
  • The error concerns a core requirement — explaining the degree of departure;

the Tenth Circuit will affirm absent a persuasive showing that the sentencing outcome likely would have been different.

For defense counsel, the message is clear: contemporaneous objection to the adequacy of the sentencing explanation is essential. Without it, appellate courts will assume that, in an “extreme” case like this, any additional reasoning by the district judge would have solidified, not softened, the sentence.

2. The scope of § 5K2.8 and “extreme conduct” in homicide cases

While the opinion does not purport to redefine § 5K2.8, it exemplifies the kind of homicide conduct that readily justifies a substantial departure for “extreme conduct”:

  • A pattern of violent acts (beating + multiple stab wounds) rather than a single sudden blow;
  • Evidence of the victim’s prolonged suffering;
  • Defendant’s awareness of that suffering and deliberate decision not to mitigate it;
  • Indicators of humiliation or degradation (e.g., the victim beaten while not on her feet, as inferred from the lack of blood on the boots); and
  • A crime that, factually, verges on first-degree murder even if legally charged and pled as second-degree.

District courts can look to Mendibles as a persuasive example of when § 5K2.8 may support a very substantial upward departure in homicide cases, especially when the facts show layered violence and prolonged suffering.

3. Explanation requirements: error acknowledged, but consequences limited

The decision also fits within broader Supreme Court and appellate jurisprudence (e.g., Rita v. United States, Gall v. United States) that emphasize the importance of reasoned sentencing explanations. However, Mendibles shows how, in practice, those requirements can become more aspirational than enforceable when objections are not preserved.

The court candidly acknowledges the error. Yet its refusal to remand — largely because the record so strongly supports a heavy sentence — signals that in cases involving extreme conduct, the failure to explain the exact degree of departure will rarely justify reversal on plain-error review.

4. Practical implications for different actors

For defense counsel:

  • It is critical to object at sentencing if the court:
    • Fails to articulate why a departure provision (like § 5K2.8) applies; or
    • Fails to explain the chosen magnitude of the departure.
  • Counsel should consider asking the court expressly: “Your Honor, for the record, could you explain why a six-level departure is appropriate, and not a smaller increase?”
  • In the absence of such an objection, clients will face the uphill “reasonable probability” standard on appeal.

For prosecutors:

  • Mendibles underscores that even when the government concedes a procedural error, it can still prevail on prejudice under plain-error review by pointing to robust record support for the sentence.
  • In advocating for large departures, prosecutors should build a detailed factual record (through PSR and testimony, as with Agent Deeds here) to insulate heavy sentences against later challenge.

For district judges:

  • The decision is a reminder that they should explain not only why they are departing, but also why they select a particular number of offense levels or the specific number of months imposed.
  • Nonetheless, Mendibles may be read (rightly or wrongly) as a practical assurance that, in extraordinarily brutal cases, failure to spell out the precise degree of departure is unlikely to result in reversal if there is no timely objection and the record is strong.

V. Simplifying the Complex Concepts

1. What is “plain error” in simple terms?

Think of “plain error” as a strict rule for fixing mistakes that no one pointed out at the time:

  • Step 1: There must be a genuine legal mistake.
  • Step 2: The mistake must be obvious based on existing law.
  • Step 3: The mistake must matter — it must probably have changed the outcome (e.g., the length of the sentence).
  • Step 4: Even then, the appeals court fixes it only if leaving it alone would make the system look unfair or untrustworthy.

In Mendibles, the court said: “Yes, there was a mistake (the judge didn’t explain the size of the departure), and it was obvious. But we don’t think it changed the outcome, because the facts of the case justify a very long sentence anyway.”

2. What is a “Guidelines departure” like § 5K2.8?

The Sentencing Guidelines normally give a range of months (for example, 188–235 months) based on:

  • The seriousness of the crime (offense level); and
  • The defendant’s criminal history.

A departure is a built-in safety valve that lets judges go above or below that range if special factors are present. Section 5K2.8 is one such factor: it applies when conduct is especially brutal or degrading, beyond what is “typical” for the crime.

Here, the judge used § 5K2.8 to move the range up, from 188–235 months to 360‑months-to‑life, because the murder involved extraordinary brutality and suffering.

3. What does “reasonable probability” of a different result mean?

“Reasonable probability” is a middle-ground standard:

  • It is more than a bare possibility or speculation.
  • It is less than proof that a different result was more likely than not.
  • It means that, based on common sense and the record, there is a meaningful chance the result would have changed.

In Mendibles, the panel concluded that, given the horrific facts, the PSR’s recommendation, and the plea’s 50‑year cap, there was not such a meaningful chance that a more elaborate explanation would have led to a lower sentence.

4. Why does the court care about an explanation for the “degree” of departure?

When a judge departs upward, there are two separate questions:

  1. “Should I go above the range at all?”
  2. “If yes, how far above is fair — a little bit or a lot?”

The law expects judges to answer both questions out loud, on the record, so:

  • The parties understand the decision;
  • Other judges can compare similar cases for consistency; and
  • Appeals courts can review whether the judge stayed within reasonable bounds.

In Mendibles, the judge explained question (1) but not question (2). That was the procedural error. But on plain-error review, the Tenth Circuit concluded that error did not matter enough to justify resentencing.

VI. Conclusion: Significance of United States v. Mendibles

United States v. Mendibles is not a published, binding precedent, but it nonetheless provides a clear and instructive application of established sentencing principles in a particularly stark factual setting. The decision:

  • Confirms that district courts must explain not only why they depart upward under provisions like U.S.S.G. § 5K2.8, but also how they arrived at the specific degree of the departure.
  • Demonstrates that, where no contemporaneous objection is made, such explanation errors are reviewed only for plain error, and defendants carry the heavy burden of proving a reasonable probability of a different sentencing outcome.
  • Shows that in cases of extreme brutality — especially where the offense approximates first-degree murder, the plea agreement contemplates a very high cap, and the PSR recommends the maximum — appellate courts are unlikely to find prejudice from an under-explained upward departure.
  • Provides a practical reminder to defense counsel to preserve procedural objections at sentencing and to sentencing judges to articulate the reasoning for the chosen extent of departures.

In the broader landscape, Mendibles exemplifies the tension between the formal requirements of sentencing explanation and the functional reality of plain-error review in severe cases. While the panel acknowledges the procedural misstep, it affirms the sentence based on the overwhelming weight of the record and the deferential nature of unpreserved-error review. As such, the case will likely be cited as persuasive authority within the Tenth Circuit for the proposition that an inadequately explained § 5K2.8 departure, though erroneous, will not justify reversal absent a concrete showing of likely sentencing impact.

1 United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc).

Case Details

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

Comments