United States v. Jordan: Sustaining Major Upward Variances in § 922(g) Sentences Without Sentencing-Statistics Benchmarking When the § 3553(a) Explanation Is Cogent

Court: U.S. Court of Appeals for the Tenth Circuit
Date: March 24, 2026
Disposition: Sentence affirmed (nonprecedential “Order and Judgment,” citable for persuasive value).

I. Introduction

United States v. Jordan arises from a felon-in-possession prosecution under 18 U.S.C. § 922(g)(1). The defendant, Mark Ryan Jordan, pled guilty and received a 120-month prison sentence—an upward variance far above the advisory Guidelines range of 27 to 33 months. He appealed solely on substantive reasonableness, arguing the sentence was too long given the circumstances and (on appeal) pointing to national sentencing statistics.

The central issues were:

• Substantive reasonableness: whether a 120-month sentence was reasonable under 18 U.S.C. § 3553(a) despite a much lower Guidelines range.
• Role of sentencing statistics: whether national JSIN data should affect appellate review when the district court did not rely on it.
• Repackaged procedural claim: whether the court improperly “double-counted” offense facts already reflected in Guidelines enhancements—and what happens when that claim is not preserved and not argued under plain-error standards.

II. Summary of the Opinion

III. Analysis

A. Precedents Cited

1. Appellate framework for substantive reasonableness

• United States v. Kaspereit, 994 F.3d 1202 (10th Cir. 2021)
  The panel quoted Kaspereit for the governing test: whether sentence length is reasonable “given all the circumstances” in light of § 3553(a), and that reversal occurs only for abuse of discretion in weighing permissible factors. It also supplied the key affirmance standard: uphold sentences that fall “within the realm of the rationally available choices.”
  
  Influence here: The court framed its role as deferential, focusing on whether the district court’s explanation and weighing were rational, not whether the appellate panel would have chosen a different term.
• United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008)
  Cited for the district court’s “unquestionable institutional advantage” in deciding whether a variance is justified.
  
  Influence here: Supported deference to the sentencing judge’s first-hand assessment of the record and offender risk.
• Gall v. United States, 552 U.S. 38 (2007)
  Quoted for “due deference” and the principle that an appellate court cannot reverse merely because it would have imposed a different sentence.
  
  Influence here: Anchored the conclusion that a large variance is not, by itself, reversible error; the question is whether the district court’s justification is adequate and reasonable.
• United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025)
  Used in two ways: (1) to note that a “cogent and reasonable explanation” makes a sentence more likely substantively reasonable, and (2) to distinguish a prior reversal where a significant upward variance was paired with an inadequate explanation (and reliance on incorrect information).
  
  Influence here: Jordan invoked Guevara-Lopez to argue the variance was too large; the panel responded that Guevara-Lopez turned on inadequate explanation and factual error—neither present in Jordan.

2. Sentencing statistics (JSIN) and disparity analysis

• United States v. Guevara-Lopez, 147 F.4th 1174
  The opinion highlighted Guevara-Lopez’s limiting principle: district courts are not required to consult Sentencing Commission data, and national statistics become salient on appeal when they expose potential disparities the court failed to address due to an otherwise insufficient explanation.
  
  Influence here: The panel treated JSIN as a “gap-filler” concern—relevant when explanation is lacking—not a mandatory benchmark.
• United States v. Doty, 150 F.4th 1351 (10th Cir. 2025)
  Quoted for the proposition that, even if national averages were available, a district court’s individualized reasoning can provide a “sensible basis to reject the national average as a benchmark.”
  
  Influence here: Reinforced the primacy of individualized § 3553(a) analysis over statistical comparisons, especially where the facts are unusually aggravated.

3. “Double counting” arguments and procedural preservation

• United States v. Alapizco-Valenzuela, 546 F.3d 1208 (10th Cir. 2008)
  Cited to classify Jordan’s claim—“the Guidelines already took seriousness into account via U.S.S.G. § 2K2.1(b)”—as a procedural reasonableness challenge (i.e., complaint about the method of using facts already embedded in enhancements to justify variance).
  
  Influence here: Enabled the panel to apply procedural-preservation rules and limit review to plain error (which Jordan did not argue), resulting in waiver.
• United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)
  Quoted for the broad discretion principle: district courts may consider facts under § 3553(a) even if those facts are already accounted for in the advisory Guidelines range.
  
  Influence here: Provided an alternative merits basis: even if the procedural argument were not waived, the district court could still rely on the same conduct to justify the upward variance.

B. Legal Reasoning

1. The court’s substantive-reasonableness lens: deference + explanation

The panel applied the abuse-of-discretion standard for substantive reasonableness and emphasized that the district court’s explanation matters: a “cogent and reasonable” account of § 3553(a) factors supports affirmance even where the variance is substantial.

2. Why the upward variance was upheld on this record

The district court’s § 3553(a) analysis, as described by the panel, concentrated on:

• Nature and circumstances / seriousness / respect for law (18 U.S.C. §§ 3553(a)(1), (a)(2)(A)):
  threats of a shootout with police, threats to kill the estranged wife, firing a stolen shotgun through her bedroom window, and pointing the shotgun at civilians (including a mother and daughter) in separate incidents; the discharge of the firearm was treated as a significant aggravator.
• History and characteristics (§ 3553(a)(1)):
  a pattern of domestic violence with three convictions involving assaults in the presence of children, and escalation from physical abuse to firearm-related violence.
• Protect the public (§ 3553(a)(2)(C)):
  the estranged wife’s ongoing fear and the demonstrated willingness to threaten and use firearm violence supported incapacitation.
• Deterrence (§ 3553(a)(2)(B)):
  despite no prior prison time for domestic abuse convictions, the court found a significant sentence necessary for deterrence.

The panel also noted the district court’s proportionality framing: it compared the 120-month sentence to the 180-month statutory maximum, characterizing the maximum as reserved for the most aggravated felon-in-possession cases, and describing 120 months as severe but not maximal. That “anchoring” served as a rational explanation for the extent of the variance.

3. Treatment of JSIN statistics on appeal

Jordan attempted to introduce JSIN statistics on appeal (average 25 months; median 27 months for the same offense level and criminal history category) via judicial notice. The panel rejected the move as immaterial given the district court’s adequate explanation and reiterated a key doctrinal point from United States v. Guevara-Lopez, 147 F.4th 1174: courts are not obligated to consult or conform to national statistics, and the statistics mainly highlight disparity concerns when the district court’s reasoning is otherwise insufficient. The panel added that, even if statistics had been available, the individualized explanation here provided a “sensible basis” to depart from national averages under United States v. Doty, 150 F.4th 1351.

4. The “Guidelines already accounted for it” claim: reframed as procedural and waived

The panel treated Jordan’s argument about U.S.S.G. § 2K2.1(b) as a procedural reasonableness claim under United States v. Alapizco-Valenzuela, 546 F.3d 1208. Because Jordan did not preserve it below and did not argue plain error on appeal, the panel found the point waived. It further indicated that, even on the merits, United States v. Barnes, 890 F.3d 910 allows reliance on facts already reflected in the Guidelines when applying § 3553(a).

C. Impact

• Reinforces an “explanation-centric” approach to large variances: The decision underscores that the most vulnerable feature of a large upward variance on appeal is not its size but an inadequate or inconsistent § 3553(a) explanation. Where the explanation is detailed and grounded in record facts indicating escalating violence and public danger, a substantial variance can be affirmed.
• Limits JSIN as a mandatory benchmark: By distinguishing United States v. Guevara-Lopez, 147 F.4th 1174, the panel signals that national sentencing statistics are not a required reference point and will not drive reversal where the district court’s individualized reasoning is sufficient.
• Procedural/substantive line-policing matters: The opinion illustrates that “double counting” objections may be characterized as procedural. If defendants fail to preserve them and then fail to argue plain error, they risk waiver even when the appeal is nominally framed as substantive reasonableness.
• Practical consequence in § 922(g) cases: Fact patterns involving firearm discharge, threats of lethal violence, and demonstrated domestic-violence escalation can support sentences dramatically above U.S.S.G. § 2K2.1 ranges, especially when the record shows risk to specific victims and the public.

IV. Complex Concepts Simplified

• Substantive reasonableness: A check on how long the sentence is. The question is whether the length is reasonable in light of the § 3553(a) factors and the whole record, not whether it matches the Guidelines.
• Abuse of discretion: A deferential standard. The appellate court will affirm if the sentence is among the “rationally available choices,” even if other sentences could also have been reasonable.
• Upward variance: A sentence above the advisory Guidelines range, justified by § 3553(a) factors.
• U.S.S.G. § 2K2.1: The Guidelines provision generally used for firearms offenses, including felon-in-possession cases, which can increase offense levels based on aggravating conduct.
• JSIN statistics: Sentencing Commission data summarizing national sentencing patterns. This decision treats such data as optional; it does not override individualized sentencing explanations.
• Procedural reasonableness and “plain error”: Procedural challenges concern the process of sentencing (e.g., relying on improper factors or incorrect calculations). If a defendant fails to object below, appellate review is typically limited to “plain error,” and if the defendant does not argue plain error, the issue may be treated as waived.
• “Double counting” (in this context): The complaint that the same facts were used both to increase the Guidelines range and to justify a variance. Under United States v. Barnes, 890 F.3d 910, courts may still consider those facts under § 3553(a).

V. Conclusion

United States v. Jordan persuasively confirms three propositions in Tenth Circuit sentencing review: (1) large upward variances in § 922(g) cases can be substantively reasonable when tied to a detailed, record-based § 3553(a) explanation focused on danger, escalation, and deterrence; (2) district courts need not consult JSIN or conform to national averages, and statistics primarily matter when the sentencing explanation is otherwise deficient; and (3) arguments that a variance “double counts” Guidelines facts may be procedural and can be waived if not preserved and not argued under plain-error standards. In practical terms, the decision strengthens the defensibility of significant upward variances in aggravated firearms cases where the sentencing judge clearly explains why the Guidelines range understates the seriousness and risk presented.