United States v. Daugherty: Adequate Upward-Variance Explanations May Rely on Unscored Criminal History; Jurisdictional Tribal References Are Not Plain Error; Unraised Disparity-Statistics Arguments Are Waived Without Plain-Error Briefing

I. Introduction

United States v. Daugherty (10th Cir. Feb. 9, 2026) addresses the procedural and substantive reasonableness of an above-Guidelines sentence for involuntary manslaughter in Indian Country. Jason Nathaniel Daugherty pleaded guilty after a fatal head-on collision in which officers found open beer containers and a blood draw showed a 0.081% BAC; he also drove while revoked/unlicensed. The district court varied upward two offense levels, sentencing Daugherty to 54 months (above the original 37–46 month range).

On appeal, Daugherty argued (1) the district court inadequately explained why his case fell outside the “heartland” of the Guidelines, (2) the court failed to address his request for leniency, (3) the court improperly referenced his tribal membership and misstated his age, and (4) the sentence was substantively unreasonable, including due to unwarranted disparities supported by sentencing statistics raised for the first time on appeal.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held the district court’s explanation for the upward variance was adequate because the court relied not only on factors arguably accounted for by the Guidelines (DUI fatality; criminal history; commission while on supervision), but also on unscored criminal history and a history of substance abuse, and it tethered these facts to multiple 18 U.S.C. § 3553(a) purposes (deterrence, public protection, just punishment, respect for law).

The panel rejected procedural challenges based on (a) the “heartland” argument, (b) the claim that the court failed to address mitigation, and (c) plain-error arguments about the court’s reference to Daugherty as a Cherokee Nation citizen and its mistaken statement that he was 29 (he was 39). The tribal reference was not plain error because it was not linked to the variance rationale and was jurisdictionally relevant under 18 U.S.C. § 1153. The age misstatement was plain factual error but did not affect substantial rights.

On substantive reasonableness, the court found the variance justified by the § 3553(a) record. The panel also held that Daugherty’s new disparity-statistics argument was reviewed, if at all, only for plain error; because he did not argue plain error on appeal, the issue was waived.

III. Analysis

A. Precedents Cited

  • United States v. Rocha, 145 F.4th 1247 (10th Cir. 2025):
    • Provided the framework for “reasonableness review” as a two-step procedural/substantive inquiry and confirmed the deferential abuse-of-discretion standard (de novo for Guidelines legal conclusions; clear error for factual findings).
    • Daugherty uses Rocha to ground its insistence that appellate review focuses on identifiable procedural errors and deference to the district court’s weighing of § 3553(a) factors.
  • United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025):
    • Reinforced the procedural/substantive distinction and the “overlap” where the challenge attacks the district court’s explanation of § 3553(a).
    • Supplied two key propositions applied in Daugherty: no presumption of unreasonableness for outside-Guidelines sentences, and “due deference” to the district court’s overall § 3553(a) judgment.
  • United States v. Alapizco-Valenzuela, 546 F.3d 1208 (10th Cir. 2008):
    • Central to the procedural holding: a sentencing court may consider facts already reflected in the Guidelines range, but must articulate why “this particular defendant’s situation” differs from the “ordinary situation” covered by the Guidelines.
    • Daugherty applies this “specific reasons” requirement but emphasizes that the explanation “need not be overly detailed,” and finds adequacy where the district court cited both Guidelines-covered and non-covered facts and connected them to § 3553(a).
  • United States v. Wireman, 849 F.3d 956 (10th Cir. 2017):
    • Used in two ways: (1) upward-variance cases generally require the court to “specifically address and reject” arguments for leniency; and (2) it supplies the Tenth Circuit’s four-part plain-error formulation.
    • Daugherty reads Wireman as satisfied where the district court’s variance explanation necessarily rejects the “mine-run/heartland” argument, without requiring repetition after a post-sentence objection.
  • United States v. Eddington, 65 F.4th 1231 (10th Cir. 2023):
    • Controls preservation: unpreserved procedural objections trigger plain-error review.
    • Daugherty relies on Eddington to apply plain-error review to complaints about the tribal reference and the age misstatement because neither was raised in the district court.
  • United States v. Pinson, 542 F.3d 822 (10th Cir. 2008):
    • Establishes that considering race to support an upward variance is impermissible (echoing the Guidelines’ policy statement that race is “not relevant”).
    • Daugherty uses Pinson as the baseline prohibition but distinguishes it: the district court’s tribal reference was not tied to the variance rationale and was pertinent to Indian Country jurisdiction.
  • United States v. Sayad, 589 F.3d 1110 (10th Cir. 2009):
    • Supports the conclusion that a single descriptive reference, without demonstrated reliance for punishment, is not reversible error.
    • Daugherty analogizes the tribal reference to “descriptive shorthand,” further undercutting a “plain” error claim.
  • United States v. Lawless, 979 F.3d 849 (10th Cir. 2020):
    • Clarifies substantive review: focus on the district court’s consideration of § 3553(a) and the sufficiency of justifications supporting the sentence.
    • Daugherty uses Lawless to frame the inquiry and then treats the district court’s multi-factor explanation as sufficient.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024):
    • Highlights the “murky” line between procedural and substantive reasonableness when the challenge concerns explanation of § 3553(a) factors.
    • Daugherty invokes Crosby to dispose of overlapping explanation-based arguments under the same adequacy reasoning.
  • Holguin-Hernandez v. United States, 589 U.S. 169 (2020):
    • Holds that requesting a lower sentence can preserve a general substantive-reasonableness claim, but the concurrence warns that not all specific length-related arguments are preserved absent case-specific notice to the court.
    • Daugherty uses the concurrence’s logic to treat a new on-appeal statistical disparity theory as unpreserved because it was never presented to the sentencing judge.
  • United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019):
    • Provides the waiver doctrine applied here: if an issue would be reviewed only for plain error but the appellant fails to argue plain error on appeal, appellate review is waived.
    • Daugherty applies Leffler to the new § 3553(a)(6) statistical-disparity argument.
  • United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008):
    • Cited to validate the sentence where the district court “careful[ly]” and “reasonabl[y]” considers § 3553(a).
    • Daugherty uses Huckins as a concluding benchmark: the district court’s explanation placed the sentence “within the bounds of reasonable choice.”

B. Legal Reasoning

1. Upward variance: explaining “why this case is different”

Daugherty’s core procedural claim was that the district court failed to distinguish his case from the “ordinary” involuntary manslaughter case already captured by the Guidelines—especially because the applicable guideline commentary treats DUI-caused homicides as “ordinarily” included within the reckless-transportation involuntary manslaughter base offense level.

The panel’s response is instructive for variance litigation:

  • It accepts that some cited facts overlap with the Guidelines calculation (DUI fatality; criminal history score; being on supervision). Under United States v. Alapizco-Valenzuela, overlap is permissible if the judge explains why the defendant is not “ordinary.”
  • It then identifies “extra-guidelines” facts supporting the “different from ordinary” conclusion: unscored criminal history (deferred sentence, arrests, juvenile adjudications) and a history of substance abuse.
  • It stresses that the court explicitly tied these facts to multiple § 3553(a) objectives (deterrence, public protection, punishment, respect for law), reducing the risk that the variance was arbitrary or inadequately reasoned.

2. Addressing mitigation and “heartland” arguments

The panel applies United States v. Wireman to hold that, in an upward-variance case, a judge must generally “specifically address” arguments for leniency. But Daugherty treats the requirement as functional rather than formulaic: the district court’s reasoned explanation for the upward variance inherently rejected the “mine-run/heartland” framing, and the court was not required to restate the same reasoning after Daugherty renewed the objection at the hearing.

3. Race/tribal membership and plain error

Daugherty clarifies how appellate courts may assess references to race or ethnicity in sentencing colloquies:

  • The panel reiterates the rule that race is not relevant to sentencing (Guidelines policy statement) and that using race to justify an upward variance would be impermissible (United States v. Pinson).
  • But it distinguishes a passing reference from an operative sentencing factor. The district court did not link tribal membership to any § 3553(a) rationale; instead, it offered multiple race-neutral reasons for the variance.
  • Critically, tribal status was jurisdictionally relevant under 18 U.S.C. § 1153 (Major Crimes Act), which applies to “[a]ny Indian” committing specified offenses in Indian Country. That jurisdictional backdrop makes it harder to characterize the reference as “plain” error.
  • Invoking United States v. Sayad, the panel treats the reference as descriptive shorthand rather than discriminatory reliance.

4. Age misstatement: error without prejudice

The panel finds the district court plainly erred factually by misstating Daugherty’s age (29 vs. 39). But plain-error relief requires showing an effect on “substantial rights”—typically, a reasonable probability of a lower sentence absent the error. The panel finds the required prejudice missing because:

  • A correction could have cut against Daugherty (the court might view a 39-year-old as less sympathetic than a 29-year-old).
  • The “extensive” unscored criminal history is not dependent on his age at sentencing; the record of conduct exists regardless of timing.

5. Disparity statistics raised on appeal: preservation, plain error, and waiver

Daugherty’s notable appellate-procedure holding concerns a defendant’s reliance on national sentencing statistics (within/below-Guidelines frequencies, average/median sentences) to argue that an above-Guidelines sentence creates “unwarranted sentencing disparities” under § 3553(a)(6).

  • The panel holds the statistics argument was not presented to the district court, so review would be only for plain error.
  • It then applies United States v. Leffler: because Daugherty did not argue plain error on appeal (instead asserting abuse of discretion), the claim is waived.
  • The decision thus incentivizes litigants to (a) develop disparity-statistics arguments at sentencing if they want ordinary appellate review and (b) if not, explicitly brief plain-error elements on appeal.

C. Impact

  • Variance explanations and “heartland” disputes: The opinion reinforces that district courts can justify upward variances by pointing to unscored criminal history and broader substance-abuse patterns, even when the core offense facts are typical of the guideline’s “ordinary” case— so long as the court links those facts to § 3553(a) purposes.
  • Sentencing colloquy references to tribal status: Daugherty suggests that where tribal status is jurisdictionally relevant (e.g., § 1153), a brief reference will rarely amount to plain error absent record evidence tying identity to harsher punishment.
  • Plain-error rigor for new disparity-statistics theories: The waiver holding may shape defense practice: defendants seeking to rely on Commission statistics to argue § 3553(a)(6) should introduce those materials at sentencing; otherwise, on appeal they must brief plain error or risk waiver.
  • Error correction vs. prejudice: The age-misstatement discussion is a reminder that factual mistakes do not automatically yield resentencing; appellants must show a realistic sentencing difference.

IV. Complex Concepts Simplified

  • Advisory Guidelines range: A recommended sentencing range calculated under the U.S. Sentencing Guidelines; after Booker, it is not mandatory but remains the starting point.
  • Upward variance: A sentence above the advisory Guidelines range based on the judge’s assessment of the § 3553(a) factors (as opposed to a “departure,” which is a Guidelines-authorized adjustment within the Guidelines framework).
  • “Heartland” / “mine-run” case: A typical case contemplated by the Guidelines. The argument is that the Guidelines already account for the ordinary facts, so a variance needs some additional justification.
  • Procedural vs. substantive reasonableness:
    • Procedural: Did the court calculate correctly and explain adequately (including considering § 3553(a))?
    • Substantive: Is the length of the sentence reasonable in light of all circumstances and § 3553(a)?
  • Plain-error review: A demanding appellate standard for unpreserved issues requiring (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness/integrity/public reputation of proceedings.
  • Waiver vs. forfeiture (as applied here): Even if an argument is merely unpreserved (forfeited) and thus eligible for plain-error review, an appellant who does not brief plain error on appeal may lose review entirely (waiver under circuit doctrine).
  • Indian Country jurisdiction / Major Crimes Act (18 U.S.C. § 1153): A statute granting federal jurisdiction over listed serious offenses committed by an “Indian” in “Indian country,” making tribal status a jurisdictional element rather than a sentencing aggravator.

V. Conclusion

United States v. Daugherty affirms a modest upward variance for involuntary manslaughter by emphasizing three practical rules: (1) an upward-variance explanation is adequate when it identifies non-ordinary features such as unscored criminal history and ongoing substance abuse and ties them to multiple § 3553(a) goals; (2) a sentencing judge’s brief mention of tribal membership is not plain error when it is not used to justify punishment and is jurisdictionally relevant under § 1153; and (3) a defendant who raises a new statistical disparity theory on appeal must either have presented it below or must brief plain error—otherwise appellate review is waived.