Plain-Error Limits on Challenging an Under-Explained Major Upward Variance, and Permissible Reliance on a Resulting Death Under § 3553(a)

I. Introduction

In United States v. Horton (5th Cir. Jan. 28, 2026) (revised opinion on denial of rehearing), the Fifth Circuit affirmed a 240-month sentence imposed after remand in a fentanyl-distribution case. The defendant, Zytrell Montae Horton, pleaded guilty to possessing fentanyl with intent to distribute under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C).

The case’s procedural posture is central. Horton’s original Guidelines range (210–240 months) was driven by U.S.S.G. § 2D1.1(a)(2) (2021), which set a base offense level of 38 if “death or serious bodily injury” resulted. The PSR attributed a soldier’s fatal overdose (L.G.) to Horton’s sale of fentanyl disguised as Percocet. On Horton’s first appeal, the Government conceded plain error under United States v. Greenough because the “death results” element was not part of the offense of conviction; the Fifth Circuit remanded for resentencing.

On remand, the Government conceded § 2D1.1(a)(2) no longer applied, yielding a dramatically lower range (10–16 months), but urged an upward variance to the 240-month statutory maximum. The district court imposed that maximum, gave only a bare § 3553(a) recitation, and did not invite allocution. Horton appealed again, raising: (1) inadequate explanation (procedural unreasonableness), (2) improper reliance on L.G.’s death (substantive unreasonableness), and (3) denial of allocution.

II. Summary of the Opinion

  • Procedural reasonableness: The panel held the district court’s explanation for the major upward variance was clearly insufficient (mere § 3553(a) recital), but Horton’s claim was unpreserved and failed on plain-error prong three because he did not show the inadequate explanation affected the outcome.
  • Substantive reasonableness: The panel held the district court did not abuse its discretion by considering Horton’s role in L.G.’s death under § 3553(a), relying on United States v. Hudgens; the 240-month variance was upheld as justified by record facts (death, repeated disguised fentanyl sales, and a later state murder plea).
  • Allocution: Assuming obvious error affecting substantial rights, the panel declined relief under plain-error prong four because Horton had allocuted at the initial sentencing, identified no objective basis for a lower sentence, and counsel had presented mitigating arguments.

III. Analysis

A. Precedents Cited

1. Guidelines “death results” as part of the offense of conviction

  • United States v. Greenough, 669 F.3d 567 (5th Cir. 2012): The foundation for the first remand and the background rule in this revised decision. Greenough held that U.S.S.G. § 2D1.1(a)(2) applies only when the “death results” clause of § 841(b)(1)(C) is part of the crime of conviction. Horton’s initial sentence improperly applied the enhancement because L.G.’s death was not an element of Horton’s conviction.

2. Sentencing review framework (procedural vs. substantive; preservation; plain error)

  • United States v. Cano, 981 F.3d 422 (5th Cir. 2020) and United States v. Foley, 946 F.3d 681 (5th Cir. 2020): The two-step preserved-error framework: procedural reasonableness first, then substantive reasonableness.
  • Rita v. United States, 551 U.S. 338 (2007): Confirms explanation is part of procedural reasonableness.
  • United States v. Sepulveda, 64 F.4th 700 (5th Cir. 2023); United States v. Broussard, 669 F.3d 537 (5th Cir. 2012); and Puckett v. United States, 556 U.S. 129 (2009): The four-part plain-error standard governing unpreserved claims.

3. What preserves a procedural “insufficient explanation” objection

  • United States v. Neal, 578 F.3d 270 (5th Cir. 2009); United States v. Pineiro, 470 F.3d 200 (5th Cir. 2006) (per curiam); United States v. Rodriguez, 15 F.3d 408 (5th Cir. 1994) (quoting United States v. Bullard, 13 F.3d 154 (5th Cir. 1994) (per curiam)): These cases supply the “specific enough” preservation rule: an objection must alert the district court to the asserted error in time to correct it.
  • United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009): Used twice—first, to reject preservation where the defendant does not request further explanation at sentencing; second, to frame plain-error prong three (the inadequate explanation must have affected the sentencing outcome).
  • United States v. Bostic, 970 F.3d 607 (5th Cir. 2020): Important comparator. Horton relied on it, but the panel distinguished it because counsel in Bostic explicitly objected that the sentence was procedurally and substantively unreasonable and challenged the court’s § 3553(a) application—i.e., preserved the “explanation” issue.

4. How much explanation is required—especially for a major variance

  • United States v. Mares, 402 F.3d 511 (5th Cir. 2005): For non-Guidelines sentences, the court must “carefully articulate” reasons with “facts specific to the case.”
  • Gall v. United States, 552 U.S. 38 (2007): The core explanation principle—reasons must allow meaningful appellate review and promote perceived fairness, and a “major departure” requires a “more significant justification.”
  • United States v. Diaz Sanchez, 714 F.3d 289 (5th Cir. 2013): Appellate review considers the district court’s statements when evaluating explanation.
  • United States v. Said, No. 21-10588, 2023 WL 167213 (5th Cir. Jan. 12, 2023) (per curiam): Cited for the practical point that a record may show adequate support for the sentence such that a better explanation would not likely change the outcome—relevant to plain-error prong three.

5. Preserving substantive reasonableness and the variance-justification standard

  • Holguin-Hernandez v. United States, 589 U.S. 169 (2020): Preserves substantive reasonableness by advocating for a lower sentence.
  • United States v. Diehl, 775 F.3d 714 (5th Cir. 2015): Provides the substantive unreasonableness tests (irrelevant factor, failure to weigh proper factor, clear error of judgment) and reiterates deference even for significant variances if justified.

6. Considering a victim’s death under § 3553(a) even without the statutory/Guidelines enhancement

  • United States v. Hudgens, 4 F.4th 352 (5th Cir. 2021): The central substantive precedent. It holds that, even when the “death results” enhancement does not apply, “nothing prevents” a sentencing court from considering that death resulted from the offense as part of § 3553(a)(1) and (2), and it upheld an upward variance to 240 months where a death was part of the “totality of the circumstances.”
  • United States v. Redmond, 965 F.3d 416 (5th Cir. 2020): Cited to illustrate the Fifth Circuit’s willingness to uphold substantial upward variances where justified.

7. Allocution errors under plain error

  • United States v. Figueroa-Coello, 920 F.3d 260 (5th Cir. 2019) (per curiam): Governs the prong-four inquiry in allocution cases, including the significance of a prior opportunity to allocute and the need for an “objective basis” suggesting allocution could have changed the outcome.
  • United States v. Palacios, 844 F.3d 527 (5th Cir. 2016); United States v. Moree, 928 F.2d 654 (5th Cir. 1991); United States v. Chavez-Perez, 844 F.3d 540 (5th Cir. 2016); and United States v. Magwood, 445 F.3d 826 (5th Cir. 2006): These decisions frame allocution as important but not automatically reversible on plain error, especially where counsel argued mitigation and the defendant cannot point to concrete, outcome-relevant mitigating information he would have offered.

B. Legal Reasoning

1. Procedural unreasonableness: inadequate explanation, but no plain-error relief without outcome prejudice

The panel first resolved preservation. Horton objected during resentencing that L.G.’s death should not be considered because it was not “indicted and proven.” The panel treated that as an objection to a sentencing factor, not an objection to the adequacy of the court’s explanation for a variance. Because Horton did not object after the court announced sentence and gave its reasons (and did not request further explanation), the panel applied plain-error review.

On the merits, the panel found clear procedural error: the district court imposed a massive upward variance (from 10–16 months to 240 months) yet offered only a generic § 3553(a) recitation. Under Gall v. United States, United States v. Mares, and United States v. Bostic, such a “major departure” requires fact-specific reasoning sufficient for meaningful appellate review.

Still, the panel denied relief because Horton did not satisfy plain-error prong three: he did not show that a better explanation would have affected the sentence imposed. The opinion stresses that (i) Horton did not respond to the Government’s “no effect on outcome” argument, and (ii) the record contained substantial aggravating facts supporting the variance, making it unlikely that a more detailed explanation would have produced a lower sentence. This is the decision’s most operational procedural holding: even an obvious explanation deficiency for an extreme variance will not warrant reversal on plain-error review absent a showing of outcome prejudice.

2. Substantive unreasonableness: death may be considered under § 3553(a) even when the “death results” enhancement is unavailable

Horton’s substantive argument attempted to repackage the remand victory (no § 2D1.1(a)(2) enhancement under United States v. Greenough) into a broader claim: that L.G.’s death could not be considered at all unless charged and proven as part of the enhanced-penalty offense. The panel rejected that position as inconsistent with Fifth Circuit precedent, especially United States v. Hudgens.

The panel distinguished between: (a) using “death results” to trigger a mandatory enhanced statutory penalty (under § 841(b)(1)(C)) or a specific Guidelines enhancement (under § 2D1.1(a)(2)), versus (b) considering death as an aggravating circumstance under § 3553(a) when selecting a sentence within the authorized statutory range. In the panel’s view, the district court did not “reintroduce” the § 841(b)(1)(C) enhancement (which would have made 240 months a minimum); instead, it used death among other facts to justify an upward variance to the maximum, which Hudgens permits.

The panel also underscored record support beyond the mere fact of death: repeat dealing of disguised fentanyl, undercover buys close in time to L.G.’s death, and Horton’s subsequent guilty plea to a state murder charge. Given the deferential standard announced in Gall v. United States and elaborated in United States v. Diehl, the panel held the variance—while large—was not an abuse of discretion.

3. Allocution: assumed prong-three prejudice, but no prong-four showing

The district court did not invite Horton to speak at resentencing as required by Fed. R. Crim. P. 32(i)(4)(A)(ii). The panel assumed (without deciding) that this was obvious error affecting substantial rights. Nonetheless, it denied relief under plain-error prong four, invoking United States v. Figueroa-Coello:

  • Horton had allocuted at the original sentencing before the same judge.
  • He did not identify specific, mitigating information he would have provided that might have changed the sentence.
  • Counsel presented mitigating arguments that overlapped with what allocution would likely cover.

The upshot is a pragmatic prong-four rule: on plain error, a resentencing allocution omission will not be corrected absent a concrete showing that the omission undermined the proceeding’s fairness in a way that plausibly mattered.

C. Impact

  1. Procedural challenges will increasingly turn on preservation and prong-three prejudice. The opinion reinforces that defendants must object in a way that targets the procedural defect (e.g., inadequate explanation) at the right time, or they risk plain-error review where even a conceded “clear error” can be affirmed for lack of demonstrated outcome effect.
  2. Greenough does not immunize defendants from death-based aggravation. After Greenough knocks out the “death results” enhancement, sentencing courts in the Fifth Circuit retain broad authority—per Hudgens and now Horton—to treat a resulting death as a major § 3553(a) aggravator. Practically, this means litigating death-causation facts may shift from “element/enhancement eligibility” to “variance justification.”
  3. Allocution claims remain important but are difficult on plain error. Horton signals that appellate relief is unlikely where there was prior allocution before the same judge and the defendant cannot articulate what new, specific mitigation he would have offered.
  4. Extreme variances remain possible when fentanyl distribution is linked to death and repeated trafficking. The affirmed jump from a 10–16 month range to 240 months illustrates that in fentanyl cases, the Guidelines may be only a starting point if the record supports a strong § 3553(a) narrative.

IV. Complex Concepts Simplified

Guidelines enhancement vs. § 3553(a) consideration
An “enhancement” (like the former § 2D1.1(a)(2) death language) changes the Guidelines calculation only when its legal triggers are met. Separately, § 3553(a) allows the judge to consider a wide range of real-world facts (including harm like death) when choosing the final sentence within the statutory limits—even if those facts do not satisfy an enhancement’s technical requirements.
Variance
A “variance” is a sentence outside the calculated Guidelines range based on § 3553(a) factors. A “major” variance (like 10–16 months up to 240 months) requires a more detailed, case-specific explanation to allow meaningful appellate review.
Preservation
To preserve an issue, counsel must object specifically enough, and at a time when the judge can correct the alleged error. Objecting to a fact being considered (e.g., “don’t consider the death”) is not the same as objecting that the judge failed to explain the chosen sentence adequately.
Plain error (four prongs)
If an error wasn’t preserved, the defendant must show: (1) error, (2) that is clear, (3) that likely affected the outcome, and (4) that seriously undermines the fairness/integrity/public reputation of proceedings. Horton fails on prong three for the explanation claim and on prong four for the allocution claim.
Allocution
Allocution is the defendant’s right to address the judge personally before sentencing. On plain error, courts often require a concrete showing that speaking could have plausibly mattered—especially if the defendant already spoke at an earlier sentencing.

V. Conclusion

United States v. Horton clarifies and reinforces three practical Fifth Circuit rules in resentencing litigation: (1) a dramatic upward variance with a bare § 3553(a) recitation is procedurally erroneous, but on plain-error review the defendant must still show the missing explanation likely changed the outcome; (2) even when United States v. Greenough bars the Guidelines “death results” enhancement, a sentencing court may still consider a resulting death under § 3553(a), consistent with United States v. Hudgens; and (3) failure to invite allocution at resentencing will not necessarily be corrected on plain error, particularly where there was prior allocution, counsel argued mitigation, and the defendant cannot identify what he would have said that might have mattered.