United States v. Malcolm: Third Circuit affirms upward variance based on uncharged robberies and jail misconduct, clarifying § 924(c)/Guidelines interplay

Note: This Third Circuit disposition is “not precedential” under I.O.P. 5.7 and does not constitute binding precedent. It nonetheless provides persuasive guidance on the scope of information district courts may consider under 18 U.S.C. § 3553(a) and the Sentencing Guidelines when imposing an upward variance.

Introduction

This commentary analyzes the Third Circuit’s decision in United States v. Michael Malcolm (No. 24-1600, filed Oct. 3, 2025), affirming an upwardly variant sentence for Hobbs Act robbery, attempted robbery, and brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The appeal challenged the substantive reasonableness of the sentence, arguing the district court over-weighted uncharged conduct and effectively double-counted firearm use.

Against a Guidelines range of 141–155 months (which included an 84‑month mandatory consecutive term for the § 924(c) count), the district court imposed 185 months’ imprisonment and five years of supervised release. The key issues on appeal were:

Whether the district court’s reliance on evidence of seven uncharged, alleged robberies and on nine disciplinary violations during pretrial detention could justify an upward variance under § 3553(a); and
Whether the sentence improperly double-counted firearm conduct given the mandatory 84‑month consecutive term under § 924(c) and the enhancements applied to the attempted robbery under the Guidelines.

The panel—Judges Shwartz, Matey, and Scirica—affirmed. Writing for the court, Judge Shwartz concluded that the district court’s sentence was within the broad realm of reasonableness and that its reliance on uncharged and custodial misconduct conformed to statutory and Guidelines principles governing sentencing information.

Summary of the Opinion

The Third Circuit held that Malcolm’s 185‑month sentence was substantively reasonable. The panel found that the district court:

Meaningfully considered the § 3553(a) factors, including the seriousness of the offense, the rapid succession of similar robberies reflecting a pattern, the defendant’s custodial misconduct, and mitigation (difficult childhood, substance abuse, comparatively limited prior criminal history);
Properly relied, by a preponderance of the evidence, on seven uncharged robberies proven via consistent modus operandi (similar gestures, clothing, and a gun resembling the weapon used in the charged crimes), and on documented jail infractions (weapons and property destruction); and
Did not double-count firearm use: the substantive robbery count did not receive a firearm enhancement because § 924(c) already applied to it (U.S.S.G. § 2K2.4(b)), while the attempted robbery—unaccompanied by a § 924(c) count—properly received a firearm-specific increase under § 2B3.1. The Guidelines’ grouping rules ensured incremental, not duplicative, punishment.

Applying the deferential abuse-of-discretion standard, the panel determined that “no reasonable sentencing court” would be compelled to impose a different sentence on this record and therefore affirmed.

Detailed Analysis

Precedents and Authorities Cited and Their Influence

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc): Establishes the core substantive reasonableness test—whether “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” The Malcolm panel anchors its affirmance in Tomko’s highly deferential framework.
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc): Emphasizes that the touchstone of reasonableness is whether the “record as a whole reflects rational and meaningful consideration” of § 3553(a). The panel found the record satisfied Grier because the district court explained the seriousness of the crime spree, its community impact, the defendant’s custodial behavior, and mitigation.
United States v. Azcona-Polanco, 865 F.3d 148, 151 (3d Cir. 2017): Confirms abuse-of-discretion review for substantive reasonableness challenges. The opinion applies this deference throughout.
United States v. Berry, 553 F.3d 273, 280, 284 (3d Cir. 2009): Holds that sentencing facts generally need be proven only by a preponderance of the evidence and that courts may consider conduct underlying arrests if reliable evidence is presented or if the PSR contains detailed facts unchallenged by the defense. Malcolm relies on Berry to validate considering seven uncharged robberies proven by reliable evidence of a consistent modus operandi.
United States v. Payano, 930 F.3d 186, 197–98 (3d Cir. 2019): Endorses the permissibility of upward variances based on uncharged conduct. Malcolm draws on Payano to confirm the district court’s authority to vary upward for robberies not encompassed by the counts of conviction or reflected in the Guidelines calculus.
United States v. Perez-Colon, 62 F.4th 805, 814 n.10 (3d Cir. 2023): Notes that, where both parties assume the correctness of Guidelines commentary, the court can proceed on that assumption without deciding broader questions about commentary deference. Malcolm references commentary to U.S.S.G. § 1B1.4, which contemplates variances to account for uncharged offenses not scored by the Guidelines; the panel proceeds on the parties’ shared assumption of its applicability.

The panel also cites key authorities codifying the breadth of information available at sentencing:

18 U.S.C. § 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense” that a court may consider in imposing sentence.
U.S.S.G. § 1B1.4: Mirrors § 3661, authorizing the court to consider any information concerning the defendant’s background, character, and conduct in determining a sentence within statutory range.
U.S.S.G. § 2K2.4(b): Bars applying weapon-specific offense characteristics to the underlying offense when a § 924(c) conviction already imposes a consecutive penalty for firearm use, to avoid double counting.
U.S.S.G. § 2B3.1: Governs robbery; allows weapon-related enhancements (e.g., a 6‑level increase here) when § 924(c) is not otherwise applicable to that count.
U.S.S.G. ch. 3, pt. D, including § 3D1.1: Grouping rules ensure incremental punishment for multiple counts without duplicating penalties.

Core Legal Reasoning

The court’s reasoning has three principal components:

Scope of Information at Sentencing. The district court relied on evidence of ten additional robberies in the days leading up to the charged offenses and found by a preponderance that Malcolm committed seven based on a consistent modus operandi (similar gestures, clothing, and a gun closely resembling that used in the charged crimes). It also considered nine disciplinary infractions during pretrial detention, including possessing weapons and destroying property. Under § 3661 and § 1B1.4, a sentencing court may consider such uncharged conduct and custodial behavior. Berry and Payano confirm that reliable, uncharged conduct can support sentencing determinations and upward variances. The panel held this use of evidence was permissible and adequately explained.
Meaningful Consideration of § 3553(a) Factors. The court emphasized the “extremely dangerous, serious, [and] violent” nature of the robberies and their impact on victims and the community, the clustering of offenses over a short period, and the defendant’s “abominable” custodial misconduct indicating high recidivism risk and a need for specific deterrence and protection of the public. It also credited mitigation: a challenging childhood, drug struggles, and a criminal history that was “by no means extensive” prior to the spree. Balancing these considerations, the court explained that an upward variance was necessary to promote respect for the law, provide just punishment, deter future crimes, and facilitate rehabilitation, while avoiding unwarranted disparities given the “unique facts.” Under Grier and Tomko, this level of articulation and balancing renders the sentence substantively reasonable.
No Double Counting of Firearm Conduct. The panel rejected Malcolm’s argument that the mandatory 84‑month consecutive term under § 924(c) was effectively layered onto a Guidelines range that already counted firearm use. For the completed robbery (the predicate for the § 924(c) count), the Guidelines appropriately did not add a firearm enhancement because § 2K2.4(b) prohibits stacking weapon-specific adjustments on top of § 924(c). For the attempted robbery, which was not paired with a § 924(c) count, the district court properly applied a 6‑level increase under § 2B3.1 due to Malcolm’s use of a firearm in that offense. The grouping rules then ensured incremental punishment for each count. In short, the sentence did not reflect impermissible double counting; it reflected the Guidelines’ calibrated approach for mixed-count cases involving § 924(c).

Impact and Likely Future Significance

While nonprecedential, Malcolm reinforces several important sentencing themes within the Third Circuit:

Uncharged conduct and custodial misconduct remain powerful variance drivers. Prosecutors can, and likely will, introduce reliable evidence of uncharged offenses and detention infractions to support upward variances. Defense counsel must marshal countervailing evidence, contest reliability, and preserve objections.
Clarified application of § 924(c) with the Guidelines. The opinion underscores that § 2K2.4(b) prevents enhancements for firearm use on the same offense as a § 924(c) count, but weapon enhancements remain proper for other counts not covered by § 924(c). Grouping then prevents double counting while still producing incremental punishment.
Substantive reasonableness remains highly deferential. Under Tomko and Grier, thorough explanations tied to § 3553(a) will typically withstand appellate review, even where a district court imposes a significant upward variance to account for serious uncharged conduct and demonstrated recidivism risk.
Disparity arguments must engage the facts. The panel accepted the district court’s assessment that the variance avoided unwarranted disparity given the “unique” fact pattern—namely, a concentrated spree of armed robberies not otherwise reflected in the Guidelines calculation.

Complex Concepts Simplified

Substantive reasonableness: On appeal, the question is whether the length of the sentence is reasonable in light of the § 3553(a) factors. The test is very deferential: would “no reasonable” court have imposed the same sentence for the reasons given?
Upward variance vs. departure: A variance is a sentence outside the advisory Guidelines range based on the § 3553(a) factors. A departure is a Guidelines-authorized adjustment based on specific policy statements. Malcolm involved an upward variance, not a departure.
Preponderance of the evidence at sentencing: Facts used to determine a sentence generally must be proven only by a “more likely than not” standard, not “beyond a reasonable doubt.” This includes uncharged conduct when supported by reliable evidence.
Uncharged conduct: Conduct for which the defendant was not convicted (and here, state charges were withdrawn) can still be considered at sentencing if proven reliably. Federal law (§ 3661; U.S.S.G. § 1B1.4) permits consideration of such conduct.
Custodial misconduct: Disciplinary violations in pretrial detention can be considered as part of a defendant’s background, character, and conduct, bearing on deterrence, protection of the public, and recidivism risk.
§ 924(c) and double counting: A § 924(c) conviction imposes a mandatory consecutive term for using or carrying a firearm during a crime of violence or drug trafficking crime. The Guidelines prevent adding firearm enhancements to the same underlying offense (U.S.S.G. § 2K2.4(b)) to avoid double counting. But counts not covered by § 924(c) can still receive weapon enhancements.
Grouping rules: The Guidelines’ grouping provisions (ch. 3, pt. D) are designed to avoid counting the same harm twice while ensuring incremental punishment for multiple counts. They explain how offense levels combine when there are multiple convictions.

Conclusion

United States v. Malcolm reaffirms the breadth of information district courts may consider at sentencing, including reliable evidence of uncharged conduct and custodial misconduct, and illustrates how those facts can justify a substantial upward variance under § 3553(a). It also clarifies, in a concrete setting, the Guidelines’ treatment of firearm conduct when some counts are paired with a § 924(c) conviction and others are not: weapon enhancements are barred for the § 924(c) predicate offense but remain appropriate for non‑predicate counts, with grouping ensuring incremental punishment without double counting.

Key takeaways:

Reliable evidence of uncharged robberies and detention violations can significantly increase a sentence through an upward variance.
District courts that thoroughly explain their § 3553(a) analysis—balancing seriousness, patterns of conduct, public safety, and mitigation—are likely to be affirmed under the deferential Tomko standard.
Arguments of “double counting” with § 924(c) must grapple with § 2K2.4(b), § 2B3.1, and the grouping rules, which, when properly applied, avoid duplication while capturing incremental harm.
Although nonprecedential, Malcolm provides persuasive guidance in the Third Circuit on how spree-like uncharged conduct and jail misconduct may be weighed to support upward variances.

In the broader landscape of federal sentencing, Malcolm underscores a familiar but potent message: the advisory range is a starting point, not a finish line, and reliable evidence of a defendant’s broader conduct can meaningfully move the needle when courts assess the statutory aims of punishment, deterrence, public protection, and rehabilitation.