Reasonable Incremental Punishment for Independent Federal Offenses Under U.S.S.G. § 5G1.3(d): United States v. Richardson

Introduction

United States v. Richardson (10th Cir. 2025) addresses the sentencing of a federal defendant who, already serving a lengthy term in Missouri for drug and firearm convictions, was subsequently convicted in Oklahoma for separate illegal-possession-of-a-firearm charges. Brandon Richardson pleaded guilty in both jurisdictions. The key dispute on appeal was whether the Oklahoma district court abused its discretion under U.S.S.G. § 5G1.3(d) by ordering a ten-month portion of his 27-month Oklahoma sentence to run consecutively to the undischarged 182-month Missouri term. Richardson contended that (1) the Missouri court had already punished him for his Oklahoma conduct—rendering the consecutive portion duplicative—and (2) the partial consecutivity created an unwarranted sentencing disparity compared with defendants consolidated under Rule 20. The Tenth Circuit affirmed, clarifying the limited scope of “relevant conduct” under § 1B1.3 and reaffirming district courts’ broad discretion under § 5G1.3(d) to impose reasonable incremental punishment for independent offenses.

Summary of the Judgment

After pleading guilty in Missouri to federal drug charges (10-year mandatory minimum) and a § 924(c) weapon count (5-year mandatory minimum consecutive), Richardson received a downward-variant 182-month sentence. A Presentence Report (PSR) briefly noted a February 2020 firearm possession without specifying location; the PSR otherwise did not treat the Oklahoma offense as relevant conduct or a separate conviction.

While Richardson served that sentence, he was returned to Oklahoma, pleaded guilty to being a felon in possession of a firearm at a casino, and faced sentencing under U.S.S.G. § 5G1.3(d)—the catchall provision for defendants with undischarged terms that are not “relevant conduct” under § 5G1.3(b). The government requested 10–15 consecutive months; Richardson asked for fully concurrent time. The court imposed 27 months total, with ten consecutive months, explaining that the Oklahoma offense was “independent” of the Missouri convictions and deserved its own consequence. On appeal, Richardson’s arguments—(i) speculative duplication of punishment and (ii) disparity compared to Rule 20transferred cases—did not persuade the panel, which affirmed.

Analysis

1. Precedents Cited

Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014): Abuse-of-discretion standard for procedural challenges to § 5G1.3(d) sentences.
Hurlich, 293 F.3d 1222 (10th Cir. 2002): Mandatory consideration of the five factors in Application Note 4(A) to § 5G1.3(d).
Torres, 182 F.3d 1156 (10th Cir. 1999): Distinction between “criminal history” and “relevant conduct” for guidelines calculations; relevant conduct must affect the offense level.
Caldwell, 128 F.4th 1170 (10th Cir. 2025): Reinforcing that § 1B1.3 relevant conduct is confined to acts that drive offense levels under Chapters Two and Three of the Guidelines.
Vincent, 127 F.4th 1263 (10th Cir. 2025) and McCane, 573 F.3d 1037 (10th Cir. 2009): Post-Rahimi reaffirmations of § 922(g)(1)’s constitutionality.

2. Legal Reasoning

The court first confirmed that § 5G1.3(b) did not apply because the undischarged Missouri term did not arise from “relevant conduct” to the Oklahoma offense. Instead, § 5G1.3(d) governed, giving the district court discretion to run the sentence concurrently, consecutively, or partially consecutively “to achieve a reasonable punishment for the instant offense.”

Richardson’s central contention—that the Missouri court had already punished him for his Oklahoma firearm possession—rested on two misapprehensions. First, he conflated any mention of the February 2020 firearm possession in the PSR’s “Offense Conduct” section with § 1B1.3 “relevant conduct.” The panel clarified that § 1B1.3(a) restricts relevant conduct to acts and omissions that actually affect offense levels under Chapters Two and Three of the Guidelines, and Application Note 1(I) to § 1B1.1 merely defines the word “offense” to include relevant conduct once that conduct is properly identified under § 1B1.3. Second, Richardson offered no evidence—nor did the Missouri court find—that any portion of the 182-month sentence was attributable to the Oklahoma event. The two extra months above the 180-month mandatory minimum were expressly tied to Richardson’s criminal history, which did not include the Oklahoma charge.

The panel also rejected attempts to classify the Oklahoma possession as subsumed within § 1B1.3(a)(1) (acts to avoid detection) or (a)(2) (common course of conduct) for Missouri offenses. There was no factual predicate for a finding that Richardson possessed the casino firearm to evade detection of Missouri charges, and he waived any common-course theory. In short, the Oklahoma offense was independent, and § 5G1.3(d) entitled the district court to impose ten months consecutively.

Richardson’s second argument—that partial consecutivity created an unwarranted sentencing disparity under § 3553(a)(6)—also failed. He compared himself to defendants transferred under Rule 20 and consolidated into one proceeding. The panel found that such hypothetical comparators were not “similarly situated” because Richardson never sought a Rule 20 transfer, nor did the prosecutors agree to one. Absent concrete examples of comparable offenders in the same procedural posture, his disparity claim lacked merit.

3. Impact

Reaffirms district courts’ broad discretion under U.S.S.G. § 5G1.3(d) to tailor partial consecutivity based on independent offenses without rigid formulas.
Clarifies that “relevant conduct” under § 1B1.3(a) is confined to wrongdoing that drives offense‐level calculations in Chapters Two and Three, not any mention in the PSR or any conduct “relevant” under § 3553(a).
Limits speculative double‐counting arguments: a defendant must show that an earlier sentence specifically attributed time to the subsequent conduct.
Offers guidance on when partial consecutive sentences do not trigger unwarranted‐disparity concerns in multi‐jurisdictional prosecutions.

Complex Concepts Simplified

Relevant Conduct (§ 1B1.3): Only includes acts or omissions that actually increase a defendant’s guideline offense level. It does not include every factual detail in a PSR or all conduct a defendant engaged in while evading law enforcement.
Section 5G1.3(b) vs. 5G1.3(d): Subsection (b) mandates concurrency if the defendant’s prior undischarged term stems from conduct that is “relevant conduct” to the new offense. Subsection (d) is the “catchall” when (b) does not apply, allowing the court to run sentences concurrently, consecutively, or partially consecutively.
Reasonable Incremental Punishment: Under (d), a court must consider factors like the nature of the undischarged sentence, time remaining, and § 3553(a) factors to ensure the new sentence reasonably punishes the additional offense without unwarranted duplication.
Unwarranted Disparity (§ 3553(a)(6)): Protects against unfair differences in sentences for “similar records” and “similar conduct.” A defendant must point to concrete comparators in analogous procedural contexts—not hypothetical or distant examples.

Conclusion

United States v. Richardson clarifies critical sentencing principles in multi‐jurisdiction cases. First, it reaffirms that § 1B1.3 relevant conduct is strictly limited to acts driving Guidelines offense levels. Second, it confirms the broad discretion afforded by § 5G1.3(d) for district courts to impose partial consecutivity when offenses are independent. Finally, it underscores that unwarranted‐disparity claims require concrete, similarly situated comparators. Together, these holdings will guide trial courts and practitioners in structuring fair, nonduplicative sentences for defendants facing successive federal prosecutions.