United States v. Nixon: § 4A1.3 Upward Departures Limited to Enumerated “Reliable Information” and Similar Uncharged Conduct; Courts Must Use Incremental Analysis and Cannot Disregard Unrebutted Expert Evidence Without Reason

1. Introduction

In United States v. Tyzheem Nixon (4th Cir. Mar. 10, 2025), the Fourth Circuit vacated and remanded a 114-month sentence imposed for a single count of felon-in-possession under 18 U.S.C. §§ 922(g)(1) and 924. The district court more than doubled the Guidelines range primarily because, while jailed awaiting sentencing, Nixon committed multiple violent acts (including stabbings) and possessed makeshift weapons. The sentencing judge also rejected—without counterevidence—an unrebutted forensic psychiatric report attributing the violence to untreated Bipolar I disorder and opining that proper treatment would substantially mitigate future danger.

The appeal presented three core issues:

  • Whether U.S.S.G. § 4A1.3 permits an upward departure based on dissimilar, uncharged conduct (here, in-custody assaults) not resulting in conviction.
  • Whether the district court complied with the Fourth Circuit’s requirement to move incrementally through criminal history categories and offense levels when departing upward.
  • Whether it was clear error to dismiss an unrebutted medical expert’s causation opinion without reasons or countervailing evidence.

Judge Gregory authored the majority opinion (joined by Judge Wynn). Judge Harris dissented, arguing the departure was permissible, the incremental approach was satisfied, the expert report was effectively contested by record evidence of “planning,” and any departure error was harmless due to an alternative variance rationale.

2. Summary of the Opinion

The Fourth Circuit held Nixon’s sentence was procedurally unreasonable for three independent reasons:

  1. The district court improperly relied on dissimilar, uncharged conduct to support an upward departure under U.S.S.G. § 4A1.3, because § 4A1.3(a)(2)(E) permits consideration of “prior similar adult criminal conduct not resulting in a criminal conviction,” and the violence in jail was not “similar” to the firearm-possession offense or its relevant conduct.
  2. The district court failed to adequately apply the incremental approach required by Fourth Circuit precedent when moving from criminal history category III to VI and then increasing the offense level, without meaningful explanation of why intervening categories/levels were insufficient.
  3. The district court committed clear error by rejecting, without basis or counterevidence, unrebutted expert testimony tying Nixon’s violent conduct to untreated mental illness and indicating treatability—thereby undermining the factual predicate for an extreme recidivism assessment.

The court further held these errors were not harmless, given the enormous gap between the correctly calculated 41–51 month range and the imposed 114-month term (and because the alternative variance rationale depended on the same flawed rejection of expert evidence). The sentence was therefore vacated and remanded with instructions, including that the district court must resentence on the existing record (citing United States v. Pettus and United States v. Rowe).

3. Analysis

3.1 Precedents Cited

A. Sentencing review framework (procedural vs. substantive; harmless error)

  • Gall v. United States, 552 U.S. 38 (2007), and United States v. Torres-Reyes, 952 F.3d 147 (4th Cir. 2020): establish abuse-of-discretion review for all sentences and the overarching “reasonableness” framework.
  • United States v. Elboghdady, 117 F.4th 224 (4th Cir. 2024); United States v. Hargrove, 701 F.3d 156 (4th Cir. 2012); United States v. Provance, 944 F.3d 213 (4th Cir. 2019); United States v. Smith, 75 F.4th 459 (4th Cir. 2023): reinforce that procedural reasonableness must be analyzed first and that an incorrect Guidelines calculation is procedural error.
  • United States v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014), as corrected; United States v. Lynn, 592 F.3d 572 (4th Cir. 2010): articulate the harmless-error standard and the government’s burden to show harmlessness.
  • In re Grand Jury 2021 Subpoenas, 87 F.4th 229 (4th Cir. 2023): cited for the split standard of review (clear error for facts; de novo for law).

B. Upward departures under § 4A1.3 and the “similar conduct” limitation

  • United States v. Grubbs, 585 F.3d 793 (4th Cir. 2009), and United States v. Dixon, 318 F.3d 585 (4th Cir. 2003): central Fourth Circuit authorities interpreting § 4A1.3(a)(2)(E) to permit consideration of similar uncharged adult criminal conduct, and defining “similar” as the same type of conduct as the offense of conviction or the “relevant conduct surrounding the offense.”
  • United States v. Robertson, 568 F.3d 1203 (10th Cir. 2009); United States v. Goshea, 94 F.3d 1361 (9th Cir. 1996); United States v. Mayo, 14 F.3d 128 (2d Cir. 1994); United States v. Bullock, 35 F.4th 666 (8th Cir. 2022): sister-circuit decisions used to illustrate that even broader similarity analyses in other circuits involved substantially greater overlap than “firearm possession” versus “jailhouse stabbings with shanks.”
  • United States v. Escano, 205 F.3d 1335 (Table) (4th Cir. 2000) (unpublished): invoked by the government to argue similarity can be broad; distinguished by the majority because both conduct sets there involved marijuana possession/distribution patterns.
  • New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022): cited to caution against reasoning that effectively treats firearm possession by a felon as inherently synonymous with violence, given the constitutional framing of arms possession as tied to self-defense (even though felon-in-possession statutes remain enforceable).

C. Whether § 4A1.3(a)(2)’s list is exhaustive; interpretive methodology after Campbell

  • United States v. McKenley, 895 F.2d 184 (4th Cir. 1990): pre-2003 precedent describing § 4A1.3’s examples as noninclusive under the then-text (“may include, but is not limited to”).
  • United States v. Robinson, 456 F. App'x 283 (4th Cir. 2011) (per curiam): an unpublished decision that treated the list as non-exhaustive by relying on a general “includes is not exhaustive” note in § 1B1.1 commentary.
  • United States v. Campbell, 22 F.4th 438 (4th Cir. 2022): pivotal for the majority’s interpretive move—Guideline commentary is consulted only when the Guideline text is genuinely ambiguous. The majority uses Campbell to undercut reliance on § 1B1.1 commentary to expand § 4A1.3(a)(2).
  • Zadvydas v. Davis, 533 U.S. 678 (2001): cited for the proposition that “may” can be permissive or mandatory depending on context.
  • United States v. Roane, 51 F.4th 541 (4th Cir. 2022), citing Reyes-Gaona v. N.C. Growers Ass'n, 250 F.3d 861 (4th Cir. 2001): invoked for expressio unius—when a rule specifies particular categories, omissions are presumed intentional.

D. Incremental departure methodology

  • United States v. Rusher, 966 F.2d 868 (4th Cir. 1992): foundational case requiring courts to move to the next higher category and proceed only if it remains inadequate, emphasizing the Commission’s “careful construction” of criminal history categories.
  • United States v. Coe, 891 F.2d 405 (2d Cir. 1989): quoted via Rusher for the view that the next higher category “will usually be sufficient.”
  • United States v. Dalton, 477 F.3d 195 (4th Cir. 2007): explains the incremental approach does not require mechanical discussion of every category, but vacates a departure nearing double where the explanation was too general relative to the magnitude of the departure.
  • United States v. Lambert, 984 F.2d 658 (5th Cir. 1993): quoted for rejecting “ritualistic” step-by-step discussion requirements.
  • United States v. Chatterji, 46 F.3d 1336 (4th Cir. 1995): used to emphasize conclusory statements cannot justify large departures.
  • United States v. Nance, 957 F.3d 204 (4th Cir. 2020): cited to show what sufficient intermediate-category consideration looks like; distinguished because the sentencing court there articulated why intermediate ranges did not “capture it.”

E. Clear error and treatment of unrebutted expert evidence

  • United States v. Bolton, 858 F.3d 905 (4th Cir. 2017): cited for clear-error review of factual findings and acceptance-of-responsibility discretion.
  • Butts v. United States, 930 F.3d 234 (4th Cir. 2019), citing United States v. Wooden, 693 F.3d 440 (4th Cir. 2012): emphasizes clear-error review is deferential but meaningful.
  • Heyer v. U.S. Bureau of Prisons, 984 F.3d 347 (4th Cir. 2021): the opinion’s principal analogy—reversing where a court conclusorily dismissed expert evidence without counterevidence and contrary record support existed.

F. Remand scope / no second bite

  • United States v. Pettus, 90 F.4th 282 (4th Cir. 2024), citing United States v. Rowe, 919 F.3d 752 (3d Cir. 2019): on remand, resentencing proceeds on the record as it exists; the government does not get another chance to develop new support for its sentencing theory.

G. Additional contextual citation

  • Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989 (2006): cited for the proposition that criminal proceedings pose the greatest threat to liberty, supporting the majority’s constitutional caution against punishing uncharged conduct through sentencing.

3.2 Legal Reasoning

A. The “similarity” constraint is not optional under § 4A1.3(a)(2)(E)

The majority frames the case as a structural limit on using sentencing as a substitute for prosecution: the Guidelines allow certain uncharged conduct to inform criminal history departures, but only within carefully chosen constraints. The key constraint applied here is textual: § 4A1.3(a)(2)(E) allows “prior similar adult criminal conduct not resulting in a criminal conviction.” The district court’s departure, however, relied “almost entirely” on Nixon’s post-plea/post-arraignment jail violence (stabbings, assaults, threats) and weapon possession—conduct the majority deemed dissimilar to the firearm-possession offense and its relevant circumstances.

Critically, the majority rejects the dissent’s view that § 4A1.3(a)(2)’s list is open-ended. It reasons that:

  • The pre-2003 “not limited to” language was removed (via Amendment 651), weakening earlier “non-exhaustive” understandings.
  • Post-2003 reliance on § 1B1.1 commentary to treat “includes” as non-exhaustive is unsound—especially after United States v. Campbell, which restricts resort to commentary absent textual ambiguity.
  • The canon of expressio unius applies: because the Commission expressly allows consideration of some dissimilar conduct only in specified circumstances (e.g., dissimilar conduct with a conviction and a sentence of more than one year under § 4A1.3(a)(2)(B)), it impliedly excludes other dissimilar, unconvicted conduct as a departure basis.

On similarity itself, the majority insists on a “direct corollary” (citing United States v. Dixon and United States v. Grubbs), rejecting the notion that “felon-in-possession” is meaningfully similar to “inmate stabbings” or even to “possession of sharpened metal rods.” It treats the “weapon” abstraction as too broad, warning that it would permit sentencing enhancements untethered from the charged offense and thereby dilute procedural protections.

B. Incremental approach: “lip service” is not compliance when the departure is extreme

Even if the district court could have considered the post-offense conduct, the majority separately vacates because the court jumped from category III to category VI and elevated the offense level to 24 without demonstrating why intermediate categories and levels were inadequate. The majority acknowledges United States v. Dalton does not require ritualistic discussion of each category, but emphasizes that the larger the divergence, the greater the need for a reasoned, reviewable explanation (reinforced by United States v. Provance and United States v. Chatterji).

The district court’s statement—“I find III to be woefully inadequate, so I move to the right towards criminal history category VI”—was treated as too conclusory, resembling the deficiency in Dalton, where a near-doubling required more than a general statement that lower levels were inadequate.

C. Clear-error reversal for rejecting unrebutted psychiatric causation testimony without reasons

The majority’s third and most fact-intensive holding concerns the district court’s treatment of Dr. Reem Utterback’s unrebutted forensic psychiatric report. The report diagnosed Nixon with Bipolar I disorder (severe, with psychotic features), PTSD (severe), and substance use disorder, and explained how untreated bipolar mania can produce impulsive aggression over “days to weeks,” with impaired judgment and confrontational behavior “outside of the person’s control,” and that appropriate mood-stabilizing treatment would materially reduce risk.

The district court rejected the report as “not credible,” refused to hear from the expert, and relied on perceived “cunning and planning” (e.g., concealing a shank) to discount a mental-health causal link. The majority holds this was clear error under the Heyer v. U.S. Bureau of Prisons framework because:

  • There was no countervailing expert evidence from the government.
  • The court offered no substantive methodological critique—only a bare credibility dismissal.
  • The court misconstrued the report by treating evidence of “planning” as inconsistent with mania, despite the report’s description of extended episodes lasting days or weeks.
  • Record evidence corroborated treatability: Nixon had a period of proper medication with “zero disciplinary violations.”

In the majority’s view, because the departure depended on recidivism risk and future dangerousness, an unjustified rejection of the only expert evidence on treatability infected the factual predicate for both the departure and the court’s sentencing rationale.

D. Harmless error rejected despite an alternative-variance statement

The dissent highlighted that the district court announced it would impose the same sentence as an alternative variance under § 3553(a). The majority nonetheless finds non-harmlessness, relying on United States v. Elboghdady and the “principle that district courts may not improperly calculate a Guidelines range.” Given a correct range of 41–51 months versus 114 months imposed, the disparity made harmlessness untenable; moreover, any variance rationale remained entwined with the same erroneous disregard of expert evidence.

3.3 Impact

United States v. Nixon is best understood as a doctrinal tightening of upward-departure practice under § 4A1.3 in three ways:

  1. Constraining § 4A1.3 “reliable information” to enumerated types (and insisting on “similarity” for unconvicted conduct): The opinion signals that district courts in the Fourth Circuit may not treat § 4A1.3(a)(2)’s list as open-ended, and may not rely on dissimilar, uncharged, unconvicted conduct as a basis for criminal-history departures. Practically, that pushes prosecutors toward charging violent jail incidents separately (or obtaining qualifying convictions) rather than using sentencing for the underlying offense as a substitute punishment vehicle.
  2. Ratcheting up explanation requirements for large departures: Courts must create a reviewable record showing incremental consideration (especially when the sentence more than doubles the Guidelines range). A conclusory statement that the original category is “woefully inadequate” will be vulnerable on appeal when not linked to why intermediate categories/levels fail.
  3. Raising the evidentiary bar for rejecting defense expert mitigation: The decision strengthens the principle that sentencing judges cannot dismiss unrebutted expert testimony with a bare credibility assertion when the record provides corroboration and the government offers no competing expertise. This is likely to matter in cases involving mental illness, intellectual disability, addiction, neurodevelopmental conditions, and trauma-related mitigation—especially where those conditions are offered to explain institutional misconduct that is then used to justify incapacitation-focused sentencing.

The opinion also has broader institutional implications: by framing dissimilar uncharged conduct enhancements as a means to “circumvent” jury-trial protections, Nixon may be cited in future litigation challenging sentencing practices that functionally punish defendants for serious, uncharged conduct without indictment, trial, or proof beyond a reasonable doubt—at least where the Guidelines text itself imposes limiting conditions (like “similarity”).

4. Complex Concepts Simplified

  • Procedural vs. substantive reasonableness: Procedural reasonableness asks whether the court followed correct sentencing steps (proper Guidelines calculation, correct departure method, adequate explanation, reliance on accurate facts). Substantive reasonableness asks whether the final sentence length is “too much” or “too little” given § 3553(a). Nixon is decided on procedural grounds.
  • Upward departure vs. variance: A departure adjusts the Guidelines calculation using a Guidelines provision (here § 4A1.3). A variance is a non-Guidelines adjustment based directly on § 3553(a). A court may do both, but procedural errors in the Guidelines calculation often matter even if the court also references § 3553(a).
  • Criminal history category and offense level: The Guidelines use two axes—offense level (severity of the offense) and criminal history category (past record/recidivism risk). Moving to the right increases criminal history category; moving “down the table” at category VI increases offense level to raise the range when category VI alone is insufficient.
  • “Similar” conduct under § 4A1.3(a)(2)(E): Under Fourth Circuit law, unconvicted conduct can justify a criminal-history departure only if it is “similar” to the offense of conviction or its relevant conduct—meaning there must be a close corollary, not merely a high-level resemblance (e.g., both involve “weapons”).
  • Clear error (factual review): Appellate courts rarely overturn fact findings, but will do so when a court ignores substantial evidence, relies on no substantial evidence, or reaches a conclusion against the clear weight of the record. Nixon applies that principle to the rejection of unrebutted expert medical evidence.
  • Harmless error: Even if a mistake occurred, an appellate court may affirm if the error did not affect the outcome. Nixon holds the errors were not harmless given the large range disparity and the flawed factual basis shared by both departure and variance rationales.
  • Expressio unius: A canon of interpretation meaning: when a legal text lists specific items, courts presume unlisted items are excluded. Nixon uses it to limit what counts as “reliable information” for § 4A1.3 departures.

5. Conclusion

United States v. Nixon establishes (or forcefully clarifies) a Fourth Circuit rule that § 4A1.3 upward departures based on conduct not resulting in conviction must track the Guideline’s enumerated bases and, for unconvicted conduct, must be “similar” to the offense of conviction or its relevant conduct. It also reaffirms that large departures require demonstrable incremental reasoning and that sentencing courts cannot disregard unrebutted, corroborated expert mitigation testimony without a stated, evidentiary basis.

The decision’s broader significance lies in its insistence that sentencing procedure is not a dispensable formality—especially where the government could have charged new violent conduct but instead sought to punish it through an unrelated sentence. Nixon thus strengthens procedural safeguards at the point where sentencing discretion, uncharged conduct, and constitutional values collide.