United States v. Gregory: Harmless-Error Treatment of § 3553(a)(6) Omissions and Deference to Major Upward Variances for “Mirror-Image” Recidivism

Introduction

United States v. Antuane Gregory, No. 24-2451 (3d Cir. July 23, 2025), concerns a defendant who escaped from a halfway house while on supervised release and, during his period of flight, engaged in the very offense that had landed him in federal prison in the first place—felon-in-possession of a firearm. The District Court for the District of New Jersey imposed the statutory maximum five-year sentence for the escape, departing upward from an advisory Guideline range of 27–33 months. On appeal, Gregory alleged (1) procedural error for failure to begin with the Guidelines, (2) procedural error for not addressing inter-defendant sentencing disparities under 18 U.S.C. § 3553(a)(6), and (3) substantive unreasonableness.

The Third Circuit rejected all claims and affirmed. Its opinion, although designated “Not Precedential,” crystallises two notable propositions:

A district court’s failure to discuss § 3553(a)(6) disparities, even when varying sharply upward, constitutes clear procedural error, but the error will be treated as harmless (plain-error prong three) when the record shows no reasonable probability that a disparities discussion would have altered the sentence.
Where an escapee commits the same serious crime during flight as the one that prompted initial incarceration, a wholesale reliance on deterrence concerns can justify a major upward variance—up to the statutory maximum—without offending substantive-reasonableness review.

Summary of the Judgment

Writing for a unanimous panel, Judge Ambro held:

The record reflected that the district judge did start with the advisory Guidelines range before departing upward, defeating Gregory’s first claim.
Although the sentencing court clearly erred by not discussing § 3553(a)(6) disparities, the error did not affect Gregory’s substantial rights because the sentencing rationale (specific deterrence due to “mirror-image” recidivism and hostile conduct during presentence investigation) indicated the same sentence would have been imposed.
The 60-month sentence was substantively reasonable: the gravity of repeating the identical firearm offense while on escape, coupled with a violent arrest, placed the case outside the “heartland” of the 27-to-33-month range.

Analysis

1. Precedents Cited and Their Influence

United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc)
• Set the abuse-of-discretion standard for substantive reasonableness.
• Gregory relied on Tomko to argue no “reasonable” court would double the Guideline ceiling; the panel instead used Tomko to frame the deferential review.
United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc)
• Provides the plain-error rubric for unpreserved procedural objections.
• The court used Flores-Mejia to review Gregory’s § 3553(a)(6) claim.
United States v. Merced, 603 F.3d 203 (3d Cir. 2010)
• Warns that large variances require explicit disparity analysis.
• Underpinned the finding of “clear error,” but Gregory could not satisfy the prejudice prong.
United States v. Fisher, 502 F.3d 293 (3d Cir. 2007)
• Sanctions upward variances when Guidelines are “too low” to serve § 3553(a) goals.
• Echoed by the district judge’s statement that “the sentencing guidelines don’t properly consider the egregious facts.”
Additional citations: King (abuse-of-discretion lens), Olhovsky (danger of ignoring factors), plus out-of-circuit comparators Lerma and Perez, confirming national acceptance of statutory-max sentences in analogous scenarios.

2. The Court’s Legal Reasoning

The panel’s reasoning unfolded in two concentric layers:

Procedural review. The district court:
- Announced and adopted the 27–33 month range (“the advisory range”).
- Articulated a reason for upward variance—specific deterrence failed because a 54-month sentence had not dissuaded Gregory from new firearm possession.
- Omitted § 3553(a)(6) discussion, which is error post-Merced. Yet, under plain-error step three, the panel found no reasonable probability of a different outcome: the record “plainly” showed recidivistic gravity dominated the sentencing calculus.
Substantive review. Applying Tomko, the panel asked whether “no reasonable sentencing court” could select 60 months. It highlighted:
- The qualitative weight of “mirror-image” recidivism (same gun crime).
- A violent post-escape arrest and an “irate” presentence demeanor, underscoring incorrigibility.
- Comparable cases nationwide imposing equal or greater variances.
These points, the panel concluded, render the sentence within the universe of reasonable judicial outcomes.

3. Impact on Future Litigation

Harmless-error gloss on § 3553(a)(6). Defendants who raise Merced-type disparity objections for the first time on appeal now face an uphill task: they must concretely show that a disparities discussion would have mattered. Merely citing national statistics (95% within-range sentences, etc.) will not suffice if the record shows a judge fixated on offender -specific deterrence.
Endorsement of deterrence-centric major variances. When the new misconduct replicates the prior conviction, district courts may rely almost exclusively on deterrence to justify upper extremes, provided they acknowledge the Guideline start point.
Practitioner takeaway. Defense counsel must object contemporaneously and marshal concrete comparator sentences at the district-court level; on appeal, the prejudice prong will be difficult to prove absent such a record.

Complex Concepts Simplified

Guideline Range vs. Variance. The U.S. Sentencing Guidelines suggest a numerical range. A “variance” is any sentence outside that range. Judges may vary upward if they articulate § 3553(a) reasons; the extent of variance must match the strength of the justification.
Plain-Error Review. Applied when a defendant did not raise the issue below. Four steps: (1) error, (2) error is clear/obvious, (3) error affects substantial rights (reasonable probability of a different outcome), (4) discretionary relief if error seriously affects the judicial reputation.
§ 3553(a)(6) Sentencing Disparities. Congress directs courts to avoid unwarranted differences among similarly situated defendants. Failure to address this factor is procedural error, especially during large variances.
Substantive Reasonableness. Independent of procedure, the appellate court asks whether the length of the sentence, for the reasons given, is “unreasonable.” Deference is high; reversal occurs only if no reasonable sentencing judge would agree.

Conclusion

United States v. Gregory crystallises a pragmatic approach to sentencing-appeal errors: even clear procedural missteps involving § 3553(a)(6) will not secure relief absent a showing of prejudice. Simultaneously, it signals robust appellate tolerance for major upward variances when an escapee’s new conduct mirrors the underlying felony, underscoring the judiciary’s view that such recidivism exhibits exceptional defiance of lawful authority. Going forward, counsel must build a disparity record early and demonstrate concrete outcome-determinative effects; otherwise, the Gregory framework will likely foreclose relief.