Sentencing “Reference vs. Reliance”: Considering Uncharged/Admitted Prior Abuse Without Upward Effect Does Not Create Procedural Error

1. Introduction

In United States v. Michael Moran (3d Cir. Dec. 24, 2025) (non-precedential), the Third Circuit affirmed a 130-month sentence imposed for distribution and possession of child pornography under 18 U.S.C. § 2252. The appeal raised two core issues: (1) whether the district court committed procedural error by considering Moran’s admissions of decades-old sexual abuse of a minor—conduct described in a state complaint that was later dismissed—and (2) whether the sentence was substantively unreasonable because the court allegedly failed to give adequate mitigating weight to Moran’s age (66) and declining health.

The case sits at the intersection of two recurring federal sentencing controversies: (i) the permissible use of non-adjudicated conduct at sentencing and the due-process “reliability” backstop, and (ii) how appellate courts evaluate age/health mitigation within the deferential abuse-of-discretion framework.

2. Summary of the Opinion

The Third Circuit affirmed. It held that the district court did not procedurally err by considering Moran’s admissions of past abuse because the court did not use that information to increase the sentence—indeed, it removed the U.S.S.G. § 2G2.2(b)(5) pattern enhancement and imposed a below-Guidelines sentence.

The court also rejected the substantive-reasonableness challenge, concluding that the district court adequately addressed Moran’s age and health and permissibly found that his conditions were common for his age and treatable by the Bureau of Prisons.

3. Analysis

A. Precedents Cited

Standard of review and the sentencing framework

United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc): The panel applied Tomko’s abuse-of-discretion framework for both procedural and substantive reasonableness, including the “no reasonable sentencing court” formulation for substantive review.
Gall v. United States, 552 U.S. 38 (2007): Quoted via United States v. Mateo-Medina for the canonical list of procedural errors (miscalculation of Guidelines, treating them as mandatory, failing to consider § 3553(a), clearly erroneous facts, inadequate explanation).
United States v. Handerhan, 739 F.3d 114 (3d Cir. 2014): Cited for the presumption of reasonableness associated with Guidelines sentences; the panel noted the context here involved a below-Guidelines sentence, reinforcing the uphill nature of Moran’s challenge.
United States v. Lloyd, 469 F.3d 319 (3d Cir. 2006): Used to bypass a preservation dispute; the court explained it need not decide plain-error vs. abuse-of-discretion because the sentence would survive either standard.

Due process limits on sentencing information: reliability and “bare arrest records”

United States v. Berry, 553 F.3d 273 (3d Cir. 2009): The centerpiece of Moran’s procedural argument. Berry prohibits increasing a sentence based on a “bare arrest record” and emphasizes due process requires information to have “sufficient indicia of reliability.” The panel relied on Berry’s distinction between impermissible increases and mere references.
United States v. Warren, 186 F.3d 358 (3d Cir. 1999): Quoted through Berry for the “sufficient indicia of reliability” standard governing sentencing facts.
United States v. Ferguson, 876 F.3d 512 (3d Cir. 2017): Provided the “reference vs. reliance” analytic tool, including the requirement that the district court must have “actually relied” on arrests and must “bridge the gap between reference and reliance” before procedural error is found.
United States v. Mateo-Medina, 845 F.3d 546 (3d Cir. 2017): Offered an example where the sentencing judge’s remarks showed improper influence from arrest history, demonstrating how “reliance” can be inferred from the judge’s reasoning.
United States v. Mitchell, 944 F.3d 116 (3d Cir. 2019): Another example of improper reliance, where the court highlighted and recited numerous arrests and used them as the key justification for the sentence.

Statutory and Guidelines provisions governing what may be considered

18 U.S.C. § 3661: Reinforces breadth—“No limitation” on information about background, character, and conduct that may be received and considered for sentencing.
U.S.S.G. § 1B1.4: Mirrors § 3661, allowing consideration of background/character/conduct unless otherwise prohibited by law.
U.S.S.G. § 2G2.2(b)(5): The “pattern” enhancement initially applied by probation, later removed by the district court in its tentative findings; its removal mattered because it undercut Moran’s claim that the challenged information drove an upward outcome.

B. Legal Reasoning

Key procedural question framed as “reliance” rather than “awareness.” The panel accepted that district courts may consider broad background information under § 3661 and U.S.S.G. § 1B1.4, but stressed that due process requires reliable information when it is used in a way that matters (particularly to increase punishment). Applying United States v. Berry and United States v. Ferguson, the court treated Moran’s claim as turning on whether the district court actually relied on the prior-abuse admission to justify the sentence.
No “increase” traceable to the contested information. The district court (a) removed the pattern enhancement and (b) expressly declined to depart or vary upward based on the admission. The Third Circuit found this dispositive because Berry’s due-process concern focuses on sentencing increases supported by inadequate evidence.
No “jaundiced eye” effect shown on the § 3553(a) analysis. Berry recognizes error can also occur if arrest information improperly colors the § 3553(a) analysis. But invoking United States v. Ferguson, the panel required a record-based showing that the court “bridged the gap between reference and reliance.” Unlike United States v. Mateo-Medina and United States v. Mitchell, the district court here did not use the prior conduct as the engine of its § 3553(a) reasoning or as the “sole justification” for the sentence.
Substantive reasonableness: age and health were considered and rejected on permissible grounds. Under United States v. Tomko, the panel asked whether “no reasonable sentencing court” would have imposed the same sentence for the reasons given. The district court explained that age alone did not warrant a variance (given experience sentencing similarly aged defendants) and that the medical issues were treatable within BOP. The panel found no abuse of discretion.

C. Impact

Practical reinforcement of the “reference vs. reliance” boundary. Even though the opinion is non-precedential, it illustrates how appellate panels may approach sentencing-record disputes: a judge can acknowledge troubling, uncharged, or dismissed-allegation conduct without committing procedural error where the record shows no enhancement, no upward variance, and no demonstrable tilt in the § 3553(a) balance.
Limits on Berry-based challenges absent a sentencing consequence. Defendants invoking United States v. Berry face a more difficult path when the disputed information does not increase the Guidelines calculation (or is removed) and does not appear to drive the ultimate sentence.
Age/health mitigation remains highly discretionary. The ruling underscores that a district court may reasonably conclude that age-related ailments—without more—do not justify a further variance when the conditions are manageable within BOP, particularly where the court already granted a substantial downward variance.

4. Complex Concepts Simplified

Procedural vs. substantive reasonableness: Procedural review asks whether the sentencing process was correct (proper Guidelines calculation, proper consideration of § 3553(a), reliable factfinding, adequate explanation). Substantive review asks whether the final sentence is within the range of reasonable outcomes given the court’s stated reasons.
“Bare arrest record”: A record showing only that someone was arrested—without reliable details of what happened. Third Circuit law treats this as an unreliable basis for increasing punishment.
“Reference vs. reliance”: A judge may mention information in the record, but reversible error generally requires that the judge actually used that information to justify the sentence—especially to increase it or to drive the § 3553(a) analysis.
Downward variance: A sentence below the advisory Guidelines range based on the judge’s weighing of the § 3553(a) factors (as opposed to a Guidelines-authorized “departure”).
U.S.S.G. § 2G2.2(b)(5) pattern enhancement: A five-level increase if the defendant engaged in a “pattern of activity” involving sexual abuse or exploitation of a minor; here, the enhancement was initially applied by probation but removed by the district court.

5. Conclusion

United States v. Michael Moran affirms a sentencing principle that often controls outcomes on appeal: the legality of considering adverse background information typically turns on whether the district court relied on it to impose a harsher sentence, not merely whether the court was aware of it or mentioned it. Applying United States v. Berry and United States v. Ferguson, the Third Circuit found no procedural error where the district court removed the contested enhancement, declined any upward adjustment, and imposed a below-Guidelines sentence. The opinion also reflects the deference given to district courts in weighing age and health under § 3553(a), especially where the court explains why those factors do not warrant additional leniency.