Upward Variance Above § 924(c) Mandatory Minimum Upheld Where Record-Based § 3553(a) Explanation Justifies the Extent of the Variance (Anders Dismissal)

1. Introduction

United States v. Marris (10th Cir. June 24, 2026) arises from a near point-blank shooting in Indian Country that left the victim, L.F., paraplegic. Nezjoneil Nikkolo Marris (a Chickasaw Nation member) was initially charged in a nine-count federal indictment, but he entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(A) and pleaded guilty to a single count: discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

The advisory guideline sentence for the § 924(c) count was 10 years—the statutory mandatory minimum reflected in U.S.S.G. § 2K2.4(b) (2024). The government sought an upward variance to 20 years, and the district court imposed 17 years. Marris appealed the substantive reasonableness of that sentence, but appointed counsel filed an Anders brief asserting the appeal was frivolous.

The core issues were: (1) whether any nonfrivolous argument existed that a 17-year sentence—seven years above the mandatory minimum and guideline recommendation—was unreasonable under 18 U.S.C. § 3553(a); and (2) whether the district court’s explanation was sufficient to support the extent of the upward variance.

2. Summary of the Opinion

The Tenth Circuit conducted an independent review of the record under Anders v. California and concluded there was no nonfrivolous basis to challenge the sentence’s procedural or substantive reasonableness. It held the district court:

  • recognized the Guidelines were advisory;
  • properly calculated the guideline sentence (10 years);
  • relied on undisputed PSR facts and the victim’s testimony;
  • adequately explained why § 3553(a) factors justified a significant upward variance; and
  • acted within its discretion in selecting 17 years.

Accordingly, the court granted counsel’s motion to withdraw and dismissed the appeal. Although the plea agreement included an appeal waiver, the panel declined to enforce it because the government did not move to do so.

3. Analysis

3.1. Precedents Cited

The opinion is best read as an application and synthesis of established sentencing-review and Anders principles, rather than as a novel doctrinal expansion. Key authorities and their role:

  • Anders v. California, 386 U.S. 738 (1967): Provides the framework for counsel’s withdrawal when an appeal is “wholly frivolous,” requiring counsel to identify anything that might arguably support an appeal and requiring the appellate court to independently review the record. The panel explicitly followed Anders’s directive to conduct a “full examination of the record.”
  • United States v. Calderon, 428 F.3d 928 (10th Cir. 2005): Cited for two points: (1) the court’s duty to independently review the record in Anders cases; and (2) the rule that the court will not consider enforcing an appeal waiver when the government does not move to enforce it. This mattered because Marris’s plea agreement contained an appeal waiver that could have disposed of the appeal, but the government did not invoke it.
  • United States v. Dominguez, 998 F.3d 1094 (10th Cir. 2021): Cited for the proposition that the maximum sentence for all § 924(c) offenses is life imprisonment, underscoring that 17 years remained far below the statutory ceiling and was legally available.
  • United States v. Jackson, 82 F.4th 943 (10th Cir. 2023): Supplies the standard that sentencing reasonableness review is for abuse of discretion and has both procedural and substantive components.
  • Gall v. United States, 552 U.S. 38 (2007): Provides the canonical list of procedural sentencing errors and confirms abuse-of-discretion review. The panel used Gall’s taxonomy to confirm no procedural defect appeared.
  • United States v. Verdin-Garcia, 516 F.3d 884 (10th Cir. 2008): Used for two points: (1) defining substantive reasonableness as sentence length viewed under § 3553(a); and (2) rejecting “hand-waving or conclusory statements” as insufficient to establish an unwarranted disparity argument.
  • United States v. Rocha, 145 F.4th 1247 (10th Cir. 2025): Clarifies preservation/standards of review: unraised procedural objections are forfeited (plain error at best), while advocating for a shorter sentence preserves substantive-reasonableness challenges. This frames what kinds of arguments could have been raised, even though the Anders posture ultimately foreclosed them as nonfrivolous.
  • United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025): Explains the overlap between procedural and substantive review when the challenge targets the district court’s explanation of § 3553(a) factors; also supplies “arbitrary, capricious, whimsical, or manifestly unreasonable” language for abuse of discretion.
  • United States v. Barnes, 890 F.3d 910 (10th Cir. 2018): Cited to emphasize that the district court’s explanation informs whether its weighing of § 3553(a) factors constituted an abuse of discretion.
  • United States v. DeRusse, 859 F.3d 1232 (10th Cir. 2017): Provides the formulation that a sentence is upheld unless it “exceed[s] the bounds of permissible choice given the facts and applicable law.”
  • United States v. Cordova, 461 F.3d 1184 (10th Cir. 2006): Central to the panel’s treatment of the explanation requirement for variances: a sentencing judge need not individually discuss each § 3553(a) factor or “recite any magic words,” even for an upward variance.
  • United States v. Perez, 802 F. App'x 408 (10th Cir. 2020) (unpublished): Reinforces Cordova by rejecting an argument that an upward variance is unreasonable merely because the court emphasized one factor (e.g., protection of the public) rather than giving a factor-by-factor discussion.
  • United States v. Dias, 174 F.4th 1266 (10th Cir. 2026): Supplies the key sentencing-disparity principle used to dispose of a potential § 3553(a)(6) argument: even absent explicit discussion of disparities, a court generally satisfies its duty when it correctly calculates the guideline range and explains why the extent of the upward variance is justified.

3.2. Legal Reasoning

The panel’s reasoning proceeded in two layers: (1) the Anders screening inquiry (is any arguable, nonfrivolous sentencing issue present?); and (2) the underlying reasonableness framework used to test any potential sentencing claim.

A. Anders posture: independent confirmation of “no nonfrivolous issue”

Because counsel filed an Anders brief and the defendant did not respond, the court conducted its own “full examination of the record.” It concluded the record foreclosed any plausible procedural or substantive attack on the sentence. This posture matters: the question is not whether an argument could be imagined in the abstract, but whether an argument has sufficient legal and factual support to be nonfrivolous on this record.

B. Procedural reasonableness: no guideline or factfinding defect

Applying Gall v. United States, the court found no indication the district court: miscalculated the guideline sentence, treated the Guidelines as mandatory, failed to consider § 3553(a), relied on clearly erroneous facts, or failed to explain the variance. The guideline sentence was straightforward under U.S.S.G. § 2K2.4(b) (the mandatory minimum for § 924(c)(1)(A)(iii)). The district court relied on undisputed PSR facts and victim testimony, minimizing vulnerability to “clearly erroneous facts” challenges.

C. Substantive reasonableness: the variance was justified by offense gravity, victim impact, and criminal history

Substantively, the district court’s rationale tracked core § 3553(a) objectives:

  • Nature and circumstances of the offense: a premeditated, close-range shooting (“this is for Notty G.”) resulting in catastrophic injuries.
  • History and characteristics of the defendant: a “lengthy history of violent crimes,” including robbery, firearm offenses, drug distribution, and multiple domestic violence incidents.
  • Need for the sentence: just punishment, respect for the law, deterrence, and protection of the public.

The Tenth Circuit emphasized that the district court gave an adequate explanation for why the mandatory-minimum/guideline baseline was insufficient in light of the extreme victim harm and the defendant’s recidivist violent history. Under United States v. Cordova, the judge was not required to discuss each § 3553(a) factor individually, and under United States v. Dias, the disparity factor in § 3553(a)(6) need not be explicitly discussed so long as the court provides a justification for the extent of a significant upward variance.

D. Disparity argument rejected as conclusory

Marris argued his criminal history did not make him different from similarly situated § 924(c) defendants, but the panel—citing United States v. Verdin-Garcia— treated this as the kind of conclusory disparity claim that cannot carry an appeal without concrete comparison points. The court also relied on United States v. Dias to explain that correct guideline calculation plus a reasoned explanation typically satisfies the disparity concern.

3.3. Impact

This decision is designated as an Order and Judgment and expressly states it is not binding precedent (except under law-of-the-case, res judicata, and collateral estoppel), though it may be cited for persuasive value. Even so, it provides practical guidance in three recurring contexts:

  1. Upward variances from § 924(c) mandatory minimums: The case illustrates that a mandatory minimum does not function as a presumptive maximum; district courts may impose substantially higher sentences (up to life under United States v. Dominguez) where § 3553(a) factors support it.
  2. Explanation sufficiency for significant variances: Consistent with United States v. Cordova and United States v. Dias, the decision reinforces that appellate review focuses on whether the judge supplied a record-based rationale that justifies the extent of the variance, not whether the judge performed a checklist recitation of every § 3553(a) factor.
  3. Anders screening in sentencing appeals: The opinion exemplifies how, when the district court’s guideline work is correct and its § 3553(a) reasoning is well-grounded, an appeal claiming “too long” may be deemed frivolous—particularly where the defendant offered only generalized disparity assertions without evidentiary support.

4. Complex Concepts Simplified

  • Anders brief: A filing by appointed counsel stating that, after careful review, the lawyer believes the appeal has no arguable merit. The court then independently reviews the record to confirm whether the appeal is indeed frivolous.
  • Mandatory minimum vs. advisory Guidelines: A mandatory minimum is the lowest sentence permitted by statute. The Sentencing Guidelines are advisory recommendations; for § 924(c), the guideline often mirrors the mandatory minimum, but the judge may sentence above it when justified.
  • Upward variance: A sentence above the advisory guideline recommendation based on the judge’s assessment of the statutory factors in 18 U.S.C. § 3553(a).
  • Procedural vs. substantive reasonableness: Procedural reasonableness asks whether the judge followed the correct sentencing process (correct guideline calculation, proper consideration, adequate explanation). Substantive reasonableness asks whether the length of the sentence is reasonable given the case’s facts and § 3553(a).
  • § 3553(a)(6) “sentencing disparities”: Courts should avoid unjustified differences among sentences for similarly situated defendants. But a defendant must do more than assert disparity in the abstract; courts typically look for concrete comparisons, and a reasoned variance explanation can satisfy this consideration.
  • Appeal waiver enforcement: Even if a defendant waived the right to appeal in a plea agreement, appellate courts commonly require the government to invoke/enforce the waiver. If the government does not, the court may decline to apply it (as here, citing United States v. Calderon).

5. Conclusion

United States v. Marris affirms—through an Anders dismissal—that a substantial upward variance above the § 924(c) mandatory minimum can be substantively reasonable when the district court anchors its decision in record-supported § 3553(a) considerations such as extreme victim harm, offense seriousness, and a defendant’s violent criminal history. The opinion also underscores a recurring appellate principle: district courts need not mechanically discuss every § 3553(a) factor (including disparities) so long as they provide an explanation that justifies the extent of the variance, consistent with United States v. Cordova and United States v. Dias.