Reaffirming Broad Discretion to Vary Upward: Tenth Circuit Approves Reliance on Guideline-Accounted Facts and Serious Child Endangerment Under § 3553(a)

Reaffirming Broad Discretion to Vary Upward: Tenth Circuit Approves Reliance on Guideline-Accounted Facts and Serious Child Endangerment Under § 3553(a)

Introduction

In United States v. Ransom, No. 24-6110 (10th Cir. Mar. 27, 2025), the Tenth Circuit affirmed an above-Guidelines sentence imposed after a guilty plea to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Although designated as an unpublished order and judgment and therefore not binding precedent (except under law-of-the-case, res judicata, and collateral estoppel), the decision provides persuasive guidance on two recurring sentencing questions:

  • May a district court vary upward based on aggravating facts that the Sentencing Guidelines already account for in the advisory range?
  • How should courts weigh substantial mitigation (trauma, addiction, mental health) when the offense conduct reflects acute danger to the public, including children?

The panel held that the district court did not abuse its discretion in varying upward to 90 months—above a 63–78 month advisory range—based on the “senseless” nature of a drive-by shooting into an occupied apartment and the presence of children both in the apartment and in the defendant’s vehicle. The court reiterated that sentencing judges may consider facts reflected in the guideline calculation when applying the 18 U.S.C. § 3553(a) factors, and that a well-explained balancing of mitigation against public safety, deterrence, and just punishment will receive substantial appellate deference.

Background

The case arose from a dog-sale dispute that escalated into violence. Police investigated a drive-by shooting targeting the apartment of the seller (Unique Maxwell), where both Ms. Maxwell and her daughter were present. Surveillance tied the shooting to a white sedan registered to the boyfriend of defendant-appellant Amber Nicole Ransom. During a stop of that vehicle, police recovered a stolen, loaded Glock; a later search of the couple’s residence revealed another firearm and related items. In an interview, the boyfriend admitted he drove past the apartment while Ms. Ransom fired from the backseat—next to his two-year-old grandson. Ms. Ransom denied shooting.

Ms. Ransom pleaded guilty to one count of felon-in-possession. The Presentence Investigation Report (PSR) calculated a total offense level of 25 and criminal history category II, for an advisory range of 63–78 months. The calculation appears to have included enhancements for a stolen firearm, multiple firearms, and use “in connection with another felony offense” (reflecting the shooting), along with acceptance of responsibility. The defense sought a downward variance based on lifelong substance use and trauma; the government urged the top of the range and suggested an upward variance would be supportable given the danger to occupants.

After addressing the § 3553(a) factors and emphasizing the endangerment of children and bystanders and the defendant’s “reckless disregard for life,” the district court varied upward to 90 months followed by three years of supervised release. On appeal, Ms. Ransom challenged only the substantive reasonableness of the sentence.

Summary of the Opinion

The Tenth Circuit affirmed. Applying abuse-of-discretion review to the substantive reasonableness challenge, the panel concluded that:

  • The district court permissibly relied on aggravating facts (including those already captured by the Guidelines calculation) to justify an upward variance. The court cited United States v. Barnes, 890 F.3d 910 (10th Cir. 2018), reaffirming that facts used in computing the advisory range may also inform the § 3553(a) analysis.
  • The district court adequately weighed mitigation—trauma, addiction, mental-health concerns—but reasonably concluded that public protection, deterrence, and just punishment warranted a “more robust sentence,” especially given the risk to children and the nature of the offense. The panel referenced United States v. Carrillo and United States v. Cade as examples where similar arguments did not undermine above-Guidelines sentences.
  • The sentence fell within the “range of rationally available choices” supported by the record and law, and was not “arbitrary, capricious, whimsical, or manifestly unreasonable.”

Analysis

Precedents Cited and Their Influence

  • Gall v. United States, 552 U.S. 38 (2007): The backbone of modern federal sentencing review, Gall requires appellate courts to review sentences for abuse of discretion, to recognize the Guidelines as the “starting point and initial benchmark,” and to give due deference to the district court’s individualized application of § 3553(a). The Ransom panel leaned on Gall’s deference principle and its admonition not to reweigh factors on appeal.
  • Kimbrough v. United States, 552 U.S. 85 (2007): Cited for the proposition that the Guidelines are advisory and serve as a starting point. While Kimbrough primarily addresses policy disagreements with Guidelines, its broader import is that district courts may depart or vary when § 3553(a) warrants—reinforcing the district court’s discretion here.
  • United States v. Haley, 529 F.3d 1308 (10th Cir. 2008): Provides the Tenth Circuit’s articulation of abuse-of-discretion review and the definition of a substantively unreasonable sentence (“arbitrary, capricious, whimsical, or manifestly unreasonable”). Ransom applies this standard to uphold the sentence.
  • United States v. Walker, 844 F.3d 1253 (10th Cir. 2017): Clarifies that a substantive reasonableness challenge asks whether the sentence length is too long or too short, considering the totality of the circumstances. The panel frames Ransom’s appeal within this lens.
  • United States v. Blair, 933 F.3d 1271 (10th Cir. 2019): Emphasizes that appellate courts ask whether the sentence falls within the “range of rationally available choices” supported by facts and law and do not reweigh the § 3553(a) factors. This language is central to the panel’s affirmance.
  • United States v. Barnes, 890 F.3d 910 (10th Cir. 2018): Critical here; Barnes confirms that a court may rely on facts already considered in the Guidelines calculation when assessing § 3553(a) factors and deciding whether a variance is warranted. The panel expressly invokes Barnes to reject the argument that the upward variance impermissibly “double counted” aggravators.
  • United States v. Pinson, 542 F.3d 822 (10th Cir. 2008): Reflects that the appellate court is not a “rubber stamp,” but deference remains due to the sentencing judge’s superior vantage point—supporting the panel’s approach to review.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024): Demonstrates the outer boundary of discretion, where the court found substantive unreasonableness because the sentencing court focused almost exclusively on one § 3553(a) factor and neglected others. The Ransom panel contrasts that error with the sentencing court’s balanced, multi-factor explanation here.
  • United States v. Carrillo, No. 23-2105, 2024 WL 887072 (10th Cir. Mar. 1, 2024) (unpublished), and United States v. Cade, 766 F. App’x 686 (10th Cir. 2019) (unpublished): Persuasive support that substantial mitigation (trauma, addiction, mental health) does not preclude an upward variance where the district court’s weighing of § 3553(a) factors is reasoned and thorough.

Legal Reasoning

The panel’s reasoning unfolds in two layers—first, the standard of review, and second, the specific substantive considerations under § 3553(a).

  • Standard of Review and Deference:
    • The court reiterates that substantive reasonableness review is highly deferential. It does not permit the appellate court to reweigh the § 3553(a) factors; rather, it asks whether the sentence lies within the set of rationally supportable outcomes.
    • Importantly, Ms. Ransom did not challenge procedural reasonableness (e.g., calculation of the Guidelines range or adequacy of explanation). That strategic choice removes a common avenue for relief and amplifies deference to the district court’s weighing of the facts.
  • Guideline-Accounted Facts and Variance:
    • Ransom argued that the Guidelines already captured the offense seriousness and danger (e.g., through the §2K2.1(b)(6)(B) “in connection with another felony” enhancement, plus enhancements for a stolen firearm and multiple firearms). The panel rejected any categorical rule against relying on those same facts in § 3553(a) analysis, citing Barnes.
    • This is a critical clarification: at the variance stage, it is not “double counting” to consider the same facts again, because the § 3553(a) inquiry asks a broader, holistic question—what sentence is sufficient but not greater than necessary in light of all statutory purposes. A fact can be relevant both to Guidelines calculations and to independent statutory aims (deterrence, protection, just punishment).
  • Balancing Mitigation Against Public Safety and Deterrence:
    • The district court credited Ms. Ransom’s adverse background, addiction, and mental health concerns, acknowledging they were “contributing factors” and “have not been sufficiently addressed.”
    • Nevertheless, the court found the conduct—firing seven shots into an occupied apartment during a drive-by, with a two-year-old seated beside the shooter—uniquely alarming, reflecting a “reckless disregard for life.” The court stressed both the actual occupants and potential bystanders who could have been injured or killed.
    • Relying on § 3553(a)(1) (nature and circumstances; history and characteristics), § 3553(a)(2)(A)–(C) (just punishment, deterrence, protection of the public), and the inadequacy of prior deterrence as reflected in Ms. Ransom’s criminal history, the court concluded an above-Guidelines sentence was necessary.
    • The panel held that this individualized, multi-factor explanation is precisely what Gall requires and is thus entitled to deference. It contrasts favorably with Crosby, where overemphasis on a single factor doomed the sentence.
  • Magnitude of the Variance and Explanation:
    • Although the opinion does not explicitly parse the magnitude principle from Gall (greater variances typically require more substantial justifications), the upward variance here—from 78 to 90 months—is modest in relative terms and supported by concrete aggravators (child endangerment, occupied-dwelling shooting, pattern suggesting inadequate deterrence).
    • The district court’s explanation—emphasizing deterrence, protection, and just punishment, and expressly finding that the Guidelines did not fully reflect the offense’s seriousness—satisfies the requirement to provide a reasoned basis for deviating from the range.

Impact and Forward-Looking Implications

  • Firearms Sentencing Involving Violent “Relevant Conduct”:
    • Even when §2K2.1 enhancements recognize related violent conduct (e.g., a shooting that qualifies as “another felony offense”), district courts retain discretion to conclude that the advisory range understates the danger. When children are endangered—either as bystanders or in the defendant’s vehicle—an upward variance is especially likely to withstand appellate scrutiny.
  • Mitigation Based on Trauma, Addiction, and Mental Health:
    • Ransom reinforces that such mitigation is important and must be addressed, but it is not dispositive. Where the record shows extraordinary endangerment or a pattern of conduct suggesting deterrence has not taken hold, courts may give greater weight to public protection and deterrence without running afoul of substantive reasonableness.
  • Use of Guideline-Accounted Facts in Variance Analysis:
    • Practitioners should not assume that the existence of an enhancement forecloses reliance on the same facts at the variance stage. Barnes remains a powerful tool for the government; defense counsel must be prepared to argue concretely why, in the particular case, the advisory range already captures the risk and why further reliance would amount to undue weight, even if it is not per se impermissible.
  • Appellate Strategy:
    • Where procedural issues exist (e.g., factual disputes about relevant conduct, undisputed PSR facts, or the adequacy of the court’s explanation), preserving and presenting them is vital. Limiting an appeal to substantive reasonableness, as here, typically places the appellant behind a high deference wall.
  • Sentencing Recordcraft:
    • Ransom exemplifies the kind of detailed, factor-by-factor explanation that Gall expects and Crosby demands. When a district court explicitly weighs both aggravation and mitigation and explains why a variance better achieves § 3553(a)’s purposes, affirmance is likely.

Complex Concepts Simplified

  • Advisory Guidelines vs. Variance:
    • The U.S. Sentencing Guidelines are advisory, not mandatory. The court must calculate the range correctly, then decide whether to impose a sentence inside, below, or above that range based on statutory factors in § 3553(a). A sentence outside the range is called a “variance.”
  • Substantive vs. Procedural Reasonableness:
    • Procedural reasonableness concerns the process: correct Guidelines calculation, ruling on objections, and adequate explanation. Substantive reasonableness concerns the bottom-line length: is it too high or too low given the totality of circumstances and § 3553(a)? Ransom involved only a substantive challenge.
  • Abuse of Discretion and “Range of Rationally Available Choices”:
    • Appellate courts do not reweigh the factors. They ask whether the sentence is one of several reasonable outcomes the facts and law can support. If so, even if another judge might have chosen differently, the sentence stands.
  • “Facts Already Accounted For” and Double Counting:
    • “Double counting” is largely a Guidelines concept about stacking enhancements for the same harm. At the variance stage, courts may still consider the same facts to address broader statutory purposes like deterrence and public protection. Barnes confirms there is no categorical bar.
  • Relevant Conduct:
    • In § 922(g) cases, conduct like a shooting may be “relevant conduct” that influences the offense level (e.g., use in connection with another felony) even if not charged separately. Such conduct can also inform § 3553(a) variances.
  • Typographical Note:
    • The opinion references “18 U.S.C. § 3353(a)” once; the correct statute is § 3553(a). This is an obvious typographical error and does not affect the analysis.

Practical Takeaways

  • For District Judges:
    • Articulate, factor-by-factor reasoning that juxtaposes mitigation with concrete aggravation (especially child endangerment) will be sustained on appeal.
    • It is permissible to conclude that enhancements do not fully capture the seriousness of the offense and to rely on those same facts in the § 3553(a) calculus.
  • For Defense Counsel:
    • If the PSR attributes violent conduct to your client, scrutinize and, if appropriate, contest those facts procedurally; failure to do so narrows appellate options.
    • When facing child-endangerment facts, present concrete risk-mitigation measures: targeted treatment, intensive supervision, and conditions that address public safety, to argue that within-range terms suffice.
    • Explain specifically how the Guideline enhancements already capture the offense gravity; generic “already accounted for” arguments are unlikely to carry the day post-Barnes.
  • For Prosecutors:
    • Emphasize particularized dangers (number of shots, occupied structure, proximity to children/bystanders) and any pattern of deterrence failure to justify an upward variance even where §2K2.1 enhancements apply.
  • For Probation Officers:
    • Document with precision the circumstances of relevant conduct and its risks. The more concrete the record on endangerment and deterrence history, the more resilient the sentencing decision.

Conclusion

United States v. Ransom reinforces a familiar but potent set of sentencing principles in the Tenth Circuit. First, district courts have broad discretion to vary upward, and appellate courts will defer so long as the record reflects a reasoned, individualized application of § 3553(a). Second, facts that inform the advisory guidelines—such as violent relevant conduct—may also be considered under § 3553(a) to support a variance; there is no categorical bar against relying on the same facts twice for different purposes. Third, while mitigation rooted in trauma, addiction, and mental health is significant and must be considered, it does not immunize a defendant from an above-Guidelines sentence where public safety, deterrence, and just punishment are powerfully implicated—especially in cases involving extreme endangerment of children and occupants of a dwelling.

Although unpublished, Ransom will be a persuasive citation in the Tenth Circuit for the proposition that an upward variance can be substantively reasonable even when the Guideline range has already captured much of the offense conduct—provided the district court explains why the range still understates the seriousness and why an enhanced sentence better achieves the statutory purposes of sentencing.

Case Details

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

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