Temporal Proximity Alone Does Not Make a Separate State Offense “Relevant Conduct” Triggering Mandatory Concurrency Under U.S.S.G. § 5G1.3(c) on Plain-Error Review

1) Introduction

In United States v. Garley (10th Cir. Aug. 14, 2026), the Tenth Circuit affirmed a 240-month federal sentence for possession with intent to distribute fentanyl under 21 U.S.C. §§ 841(a)(1), (b)(1)(A). The district court imposed a significant upward variance from an advisory range of 120–135 months and ordered the federal sentence to run consecutively to an anticipated state sentence for a separate homicide.

The appeal presented two core issues:

  1. Procedural reasonableness: whether the district court plainly erred by not applying U.S.S.G. § 5G1.3(c), which recommends concurrency when an anticipated state term stems from “relevant conduct” to the federal offense.
  2. Substantive reasonableness: whether the district court inadequately justified a major upward variance, including reliance on fentanyl’s dangers and the defendant’s violent state conviction as part of his “history and characteristics.”

The parties were the United States (appellee) and Nathen Richard Garley (appellant).

2) Summary of the Opinion

The Tenth Circuit affirmed on both grounds:

  • No plain procedural error: The court held Mr. Garley failed to show the district court erred—much less plainly erred—by not applying § 5G1.3(c). On the record, the state murder conviction was treated as criminal history under U.S.S.G. § 4A1.2(a)(4), not as “relevant conduct” under U.S.S.G. § 1B1.3. Temporal proximity and the sentencing court’s references to the state shooting did not establish relevant conduct.
  • Substantive reasonableness upheld: The district court’s rationale—fentanyl’s extraordinary lethality, a policy-based critique of the Guidelines’ treatment of fentanyl versus methamphetamine, the unusually serious “crime spree,” deterrence, and public protection—fell within “the realm of rationally available choices.”

Judge Hartz concurred, cautioning that Holguin-Hernandez v. United States does not necessarily settle whether particular arguments supporting substantive unreasonableness must be preserved below.

3) Analysis

A) Precedents Cited

1) Standards of review: reasonableness and plain error

  • United States v. Smart: framed appellate “reasonableness” review as encompassing both procedural and substantive components.
  • United States v. Iley and United States v. Martinez-Barragan: stated the baseline rule—Guidelines legal issues are reviewed de novo, but unpreserved procedural objections are reviewed only for plain error.
  • United States v. Benally (quoting Greer v. United States): supplied the four-part plain-error test, including the requirement of a “reasonable probability” of a different outcome.
  • United States v. Romero, United States v. McGehee, and United States v. Paycer: emphasized the demanding nature of plain-error review and that failure on any prong is fatal.
  • United States v. Dominguez Benitez: placed the burden for plain-error relief on the defendant.

2) The § 5G1.3 concurrency framework and “relevant conduct”

  • United States v. Finnesy: the opinion’s central analogue. In Finnesy, the Tenth Circuit declined to find plain error where the PSR treated state offenses as criminal history and the defendant did not object—making it not “clear or obvious” that the state offenses were relevant conduct triggering concurrency under § 5G1.3. Garley adopts Finnesy’s logic for § 5G1.3(c) (anticipated state sentence), not just § 5G1.3(b) (undischarged term).
  • United States v. Caldwell: provided a key interpretive point—relevant conduct must not only overlap in time but must also “relate to the offense of conviction,” and “bare” temporal overlap is insufficient. Caldwell’s articulation largely foreclosed Garley’s attempt to leverage one-week proximity into “relevant conduct.”
  • United States v. Torres: stressed that determining whether prior conduct is relevant conduct is an “essential predicate” to criminal history assessment; and (as echoed in Finnesy) conduct treated as criminal history is, by definition, not treated as relevant conduct.
  • Witte v. United States and United States v. Allen: supplied conceptual separation—criminal history reflects past convictions/offender characteristics; relevant conduct informs offense conduct.
  • United States v. D.A.: emphasized that delineating relevant conduct is “configured by key factual findings,” underscoring why the absence of findings (and objections prompting them) mattered under plain-error review.
  • United States v. Wernick (2d Cir.): invoked via Caldwell for the proposition that temporal overlap alone does not make conduct “relevant.”

3) “Same course of conduct” factors

  • United States v. Damato and United States v. Garcia: explained the “same course of conduct” inquiry as fact-intensive and guided by similarity, regularity, and time interval, using a “sliding scale.” Garley uses these principles to show why a murder and a fentanyl trafficking offense—despite proximity—do not obviously satisfy similarity or regularity.

4) Consecutive authority

  • Setser v. United States: confirmed a federal court’s inherent authority to decide whether a federal sentence runs consecutive or concurrent to an anticipated state sentence.

5) Upward variances, explanation, and appellate deference

  • Gall v. United States: supplied the requirement to explain deviations and the general “totality of the circumstances” framing.
  • United States v. Sayad, United States v. Williams, United States v. Ware, and United States v. Blair: reinforced abuse-of-discretion review and the rule that appellate courts do not reweigh § 3553(a) factors.
  • United States v. Kristl: clarified that the presumption of reasonableness applies only to within-Guidelines sentences.
  • United States v. Barnes, United States v. Cookson, United States v. Rocha, and United States v. Guevara-Lopez: addressed the need for more significant justification for major variances, and acknowledged the “blurring” between procedural and substantive review when explanation is challenged.
  • Kimbrough v. United States and United States v. Lopez-Macias: supported the district court’s authority to vary based on policy disagreements with Guidelines, as part of a holistic § 3553(a) analysis.
  • United States v. DeRusse and United States v. Lawless: rejected attempts to relitigate the district court’s weighting of the factors.

6) Fentanyl-policy variance support (persuasive authorities)

  • United States v. Cortez (8th Cir.) and United States v. Roy (4th Cir.): cited to show other circuits affirm upward variances based on fentanyl’s lethality and perceived Guidelines leniency.
  • United States v. McCrary (10th Cir.) (citing United States v. Robinson (6th Cir.)) and United States v. Armond (8th Cir.): additional support that fentanyl/opioid danger can justify upward variances.
  • United States v. Jimenez-Marquez (D.N.M. 2024): referenced as the district judge’s prior articulation that treating fentanyl as less serious than methamphetamine is “illogical,” showing a consistent, explained policy view.

7) Preservation / waiver doctrines

  • United States v. Cooper: used to support the notion that inadequately briefed arguments (e.g., “plainness”) can be waived.
  • United States v. Flechs (quoting United States v. Brooks), United States v. Story, and United States v. Johnson: supplied the law of “plainness”—error must be clear under well-settled law or indisputable statutory application.
  • United States v. Jones: used to criticize conclusory “plainness” assertions that do not show the issue is “clearly settled.”
  • United States v. Bradley: explained that failure to preserve plus failure to argue plain error on appeal results in waiver (the opinion uses this to cabin any procedural “inadequate explanation” claim).
  • United States v. Jackson, Holguin-Hernandez v. United States, and United States v. Chavez-Morales: distinguished preservation rules for substantive challenges (often preserved by advocating a lower sentence) from procedural explanation challenges (often requiring a contemporaneous objection).

B) Legal Reasoning

1) Why § 5G1.3(c) did not produce reversible procedural error

The linchpin of § 5G1.3(c) is whether an anticipated state term “is anticipated to result from another offense that is relevant conduct to the instant offense of conviction” under § 1B1.3(a)(1), (a)(2), or (a)(3). The Tenth Circuit held Mr. Garley could not satisfy even the first plain-error prong because the record did not show the district court treated (or was required to treat) the state murder conduct as “relevant conduct.”

The court emphasized several record-based points:

  • The PSR explicitly treated the state case as criminal history under U.S.S.G. § 4A1.2(a)(4) (convicted, not yet sentenced). This classification is incompatible with simultaneously treating the same conduct as relevant conduct for offense-level purposes.
  • Mr. Garley did not object to the PSR’s treatment, leaving the district court with no prompted need to make factual findings that would support a relevant-conduct determination.
  • References to the shooting at sentencing (victim-allocution inquiry; describing “facts in this case”; calling the events a “crime spree”) did not amount to a legal determination of relevant conduct.

On “plainness,” the court also concluded that the language of § 1B1.3(a)(1) and (a)(2) is general and does not “obviously” compel treating the murder as relevant conduct to fentanyl possession with intent to distribute. Under United States v. Caldwell, temporal proximity alone is insufficient; under United States v. Damato, “same course of conduct” typically requires similarity and/or regularity, which are absent when comparing a gang-related shooting to drug trafficking.

Finally, the court mirrored United States v. Finnesy: where the PSR treats other offenses as criminal history and the defendant does not object, it will rarely (if ever) be “clear or obvious” that § 5G1.3 concurrency was required.

2) Why the upward variance was substantively reasonable

The court treated the appeal as a substantive reasonableness challenge (and deemed any procedural “inadequate explanation” claim waived under United States v. Bradley because Mr. Garley did not pursue plain-error review for that theory).

Applying abuse-of-discretion review under United States v. Sayad and Gall v. United States, the panel held the district court gave an explanation adequate to justify a major variance:

  • Nature and circumstances / seriousness: the case involved over ten kilograms of fentanyl—an extraordinarily large quantity.
  • Policy disagreement with the Guidelines: the district court viewed fentanyl as underweighted relative to methamphetamine, consistent with the policy-variance authority recognized in Kimbrough v. United States, and supported by out-of-circuit fentanyl variance cases.
  • History/characteristics and public protection: the district court considered the defendant’s recent murder conviction (though not as “punishment” for that state offense) as part of his history and as evidence of dangerousness and the need to protect the public.
  • Deterrence: the court expressly relied on the need for “adequate deterrence to criminal conduct.”
  • Disparities / uniqueness: the court explained that similarly situated defendants are not comparable because the Guidelines did not account for the combination of a child homicide followed within days by trafficking a massive quantity of fentanyl.

The panel rejected Mr. Garley’s criticisms as largely a request to reweigh factors—barred by United States v. Blair and United States v. Lawless.

C) Impact

United States v. Garley is likely to matter most in three recurring sentencing contexts:

  1. § 5G1.3(c) claims raised for the first time on appeal: The decision reinforces that, on plain-error review, defendants face steep hurdles to recast other criminal conduct as “relevant conduct” when the PSR treated it as criminal history and no objection was made. The opinion operationalizes a practical rule: absent preserved objections and factual findings supporting § 1B1.3, concurrency arguments are unlikely to be “plain.”
  2. Temporal proximity vs. “relevant conduct”: Garley underscores that courts will not treat proximity as enough; similarity and regularity (or an actual relation to the offense) are crucial. This will limit attempts to link violent conduct to drug trafficking merely because both occurred in a short time window.
  3. Fentanyl policy variances: The opinion continues a trend (supported by cited authorities) of affirming upward variances grounded in fentanyl’s lethality and perceived Guidelines underweighting, especially where the sentencing court explains its policy rationale and ties it to § 3553(a) factors.

The concurrence adds a potential appellate nuance: even if a defendant preserves a general substantive-reasonableness claim by requesting a lower sentence, it remains unsettled whether particular theories (e.g., challenging the district court’s policy disagreement with a Guideline) must be specifically raised below.

4) Complex Concepts Simplified

  • Relevant conduct (U.S.S.G. § 1B1.3): Conduct that is treated as part of the federal offense for Guidelines calculation—typically because it is part of the same course of conduct, same scheme, or directly related to the offense (not merely close in time).
  • Criminal history (U.S.S.G. § 4A1.1; § 4A1.2): Points added based on prior convictions/sentences (or, under § 4A1.2(a)(4), a conviction not yet sentenced), reflecting the defendant’s background rather than the offense conduct.
  • § 5G1.3(c) concurrency recommendation: If the anticipated state sentence is for conduct that would be treated as relevant conduct to the federal offense, the Guidelines call for the federal sentence to run concurrently with that anticipated state term.
  • Plain error: A stringent appellate standard for unpreserved issues. The defendant must show (1) an error, (2) that is clear/obvious, (3) that likely affected the outcome, and (4) that seriously undermines the fairness/integrity of proceedings.
  • Upward variance: A sentence above the advisory Guidelines range based on § 3553(a) factors. A “major” variance requires a correspondingly strong justification, but appellate courts defer heavily if the explanation is coherent and grounded in permissible considerations.
  • Policy disagreement with Guidelines (Kimbrough variance): A sentencing court may conclude that a Guideline does not reflect appropriate sentencing policy and may vary accordingly, so long as it explains and ties the decision to statutory sentencing factors.

5) Conclusion

United States v. Garley reinforces that, on plain-error review, a defendant cannot obtain mandatory concurrency under U.S.S.G. § 5G1.3(c) without a clear record showing the other offense is “relevant conduct” under § 1B1.3; temporal proximity and generalized references at sentencing are not enough, particularly where the PSR treated the conduct as criminal history and no objection was raised. The decision also affirms wide district-court discretion to impose major upward variances in fentanyl cases when supported by a policy rationale, the defendant’s history and dangerousness, and the goals of deterrence and public protection.