Upward Variances Affirmed When District Courts Tie the Degree of Deviation to § 3553(a) and Reliably Supported Uncharged Conduct (Seventh Circuit)

1. Introduction

United States v. Travis L. Withers (7th Cir. July 17, 2026) concerns appellate review of an above-Guidelines sentence for a felon-in-possession conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(8). Travis Withers pleaded guilty and received 96 months—an upward variance of 33 months above the top of the advisory range (51–63 months), driven largely by his extensive violent criminal history and the district court’s consideration of two uncharged shooting incidents described at sentencing.

On appeal, Withers argued (1) procedural error—insufficient explanation for the above-Guidelines sentence and reliance on improper considerations (including criminal history already accounted for and alleged factual mischaracterizations), and (2) substantive unreasonableness—an unwarranted disparity compared to “average” firearm offenders’ sentences. The Seventh Circuit affirmed in a nonprecedential order, emphasizing the adequacy of the district court’s § 3553(a) explanation and the permissibility of considering reliably supported uncharged conduct.

2. Summary of the Opinion

The Seventh Circuit held that the district court:

  • provided an adequate § 3553(a) explanation supporting the extent of the upward variance, focusing on Withers’s history, dangerousness, and deterrence;
  • did not commit procedural error by giving substantial weight to criminal history even though the Guidelines incorporate it, because courts may weigh the § 3553(a) factors differently than the Sentencing Commission;
  • did not rely on clearly erroneous facts; its characterization of Withers’s firearm-related background was grounded in record evidence including a prior felon-in-possession conviction and testimony about two 2020 firearm incidents;
  • properly considered uncharged conduct at sentencing under 18 U.S.C. § 3661, where the record showed the judge found the conduct attributable to Withers; and
  • imposed a sentence that was substantively reasonable, because any disparity was not “unwarranted” given Withers’s record and ongoing dangerous behavior.

3. Analysis

A. Precedents Cited

United States v. Ballard, 12 F.4th 734 (7th Cir. 2021) (quoting United States v. Miller, 601 F.3d 734 (7th Cir. 2010))

The panel anchored its procedural-reasonableness review in the familiar variance framework: a district court may sentence outside the advisory range if it considers the extent of the deviation and provides a sufficiently compelling justification for the degree of variance. By invoking United States v. Ballard and the quoted standard from United States v. Miller, the court treated Withers’s complaint—“33 months above the top end”—as a question of whether the district court’s reasons matched the magnitude of the deviation.

United States v. Faulkner, 885 F.3d 488 (7th Cir. 2018)

United States v. Faulkner supplied the operational rule: when a sentencing judge explains the variance by discussing the relevant § 3553(a) factors, the explanation generally suffices. The panel relied on this to conclude that the district court’s repeated focus on Withers’s recklessness, violence, deterrence needs, and public safety concerns met procedural requirements.

United States v. Hendrix, 74 F.4th 859 (7th Cir. 2023)

Withers argued procedural error because the judge “overemphasized” criminal history already reflected in Criminal History Category VI. The panel responded with United States v. Hendrix: disagreement with how a court weighs the § 3553(a) factors is not procedural error. This precedent separates “the court failed to follow sentencing procedure” from “the court exercised its discretion in a way the defendant dislikes.”

United States v. Hayden, 775 F.3d 847 (7th Cir. 2014)

United States v. Hayden reinforces that even if the Guidelines account for a factor (such as criminal history), the judge may still weigh the underlying facts differently in the § 3553(a) analysis. Here, it supported the panel’s conclusion that the district court could treat Withers’s repeated violent conduct and apparent failure to be deterred as grounds for a higher sentence notwithstanding the advisory range.

United States v. Miller, 900 F.3d 509 (7th Cir. 2018)

Withers claimed the judge relied on erroneous facts by characterizing him as “regularly” carrying firearms and having a “long history” of settling disputes with firearms. The panel distinguished this case from United States v. Miller, 900 F.3d 509 (7th Cir. 2018), where procedural error existed because the sentencing court relied on a materially mistaken understanding of the defendant’s prior convictions. In Withers, the challenged phrasing was deemed immaterial because the record contained objective support (a 2021 felon-in-possession conviction plus evidence of the two 2020 shooting episodes), and the substance of the court’s concerns—dangerous firearm use—was not contradicted.

United States v. Mays, 593 F.3d 603 (7th Cir. 2010)

United States v. Mays stands for the principle that sentencing courts may consider a defendant’s uncharged criminal conduct. The panel used it to reject any categorical attack on the district court’s reliance on the two 2020 incidents, emphasizing the breadth of permissible sentencing information.

18 U.S.C. § 3661

The court paired United States v. Mays with the statutory rule in 18 U.S.C. § 3661, which provides that no limitation shall be placed on information about a defendant’s background, character, and conduct that a court may consider for sentencing. This statute functioned as the doctrinal basis for admitting and using the ATF agent’s testimony and related video evidence as part of the overall § 3553(a) assessment.

United States v. Holton, 873 F.3d 589 (7th Cir. 2017)

Withers’s case also turned on the required level of explicitness when a court relies on uncharged conduct. Under United States v. Holton, the government must prove uncharged conduct by a preponderance, but the sentencing judge need not make a formal finding if the record clearly shows the judge determined the defendant was responsible. The panel found that the district court’s comments—after watching video footage and describing the incidents as “incredibly reckless” and dangerous—made that determination sufficiently clear.

B. Legal Reasoning

The opinion proceeds in the standard two-step framework: (1) procedural reasonableness (adequate explanation, correct facts, proper considerations) and then (2) substantive reasonableness (abuse of discretion in balancing the § 3553(a) factors).

1) Procedural reasonableness: explanation for the variance

The district court explicitly grounded the upward variance in § 3553(a), emphasizing: Withers’s history of violence and recklessness (multiple batteries, assaults, threats), the court’s assessment that prior sentences had failed to deter him, and public-safety concerns reinforced by the two shooting incidents. The Seventh Circuit treated that explanation as satisfying the requirement that the justification be “sufficiently compelling” for the extent of the deviation.

2) Criminal history “double counting” as a nonstarter

Withers’s argument that criminal history was already built into the Guidelines range was reframed by the panel as a dispute over weight, not procedure. Under Seventh Circuit law, the Guidelines are advisory and do not prevent a court from concluding that Category VI still understates a defendant’s risk, recidivism, or deterrence needs. The judge’s reliance on the pattern of violence and failed deterrence thus remained procedurally permissible.

3) Alleged factual mischaracterizations

The panel held that the district court’s description of Withers’s firearm-related background was not clearly erroneous because the record included: (a) a prior 2021 conviction for possession of a firearm by a felon, and (b) record-supported accounts of two 2020 incidents involving gunfire, including surveillance footage. Even if the phrasing “regularly” or “long history” could be debated, the panel found no material reliance on a demonstrably false premise of the type condemned in United States v. Miller, 900 F.3d 509 (7th Cir. 2018).

4) Use of uncharged conduct

The district court’s consideration of the 2020 incidents was upheld because: (i) uncharged conduct is generally admissible at sentencing under § 3661 and Seventh Circuit precedent; and (ii) the record reflected the court’s determination, by at least a preponderance, that Withers committed the conduct—particularly given the court’s reliance on video footage and the lack of any dispute by Withers as to accuracy. The panel therefore treated the sentencing record as meeting United States v. Holton’s “clear from the record” standard.

5) Substantive reasonableness and disparities

Withers argued the sentence was excessive compared to average firearm sentences, invoking § 3553(a)(6)’s directive to avoid unwarranted disparities. The panel emphasized that the statute forbids only unwarranted disparities and accepted the district court’s explanation that Withers’s specific record and dangerousness justified different treatment. That reasoning foreclosed a finding of abuse of discretion.

C. Impact

Although labeled NONPRECEDENTIAL, the decision reflects and reinforces several practical points that will shape sentencing litigation in the Seventh Circuit:

  • Variance defense and appellate insulation: an upward variance is likely to be affirmed when the judge explicitly links the degree of variance to concrete § 3553(a) findings (dangerousness, deterrence failure, public protection), rather than relying on conclusory statements.
  • Criminal history as more than a number: defendants in high criminal-history categories (including Category VI) will face an uphill climb arguing that reliance on criminal history is “already accounted for,” because courts may treat the underlying pattern and persistence of violence as aggravating beyond the Guidelines calculus.
  • Uncharged conduct remains powerful: the opinion underscores that uncharged shootings or similar conduct—especially when supported by video—can materially drive sentencing outcomes without requiring formal charges or a detailed on-the-record “preponderance” finding, so long as the judge’s acceptance is clear.
  • Disparity arguments require comparability: generalized comparisons to “average” firearm offenders are unlikely to prevail where the judge articulates individualized reasons why the defendant is not “similar” in record or risk.

4. Complex Concepts Simplified

  • Advisory Guidelines range: the Sentencing Guidelines provide a recommended range (here, 51–63 months). After Booker, judges are not required to sentence within that range, but must consider it.
  • Upward variance (above-Guidelines sentence): a sentence higher than the advisory range based on the judge’s application of the § 3553(a) factors (e.g., deterrence, public protection).
  • Procedural reasonableness: asks whether the judge used the correct process—considered the relevant factors, relied on accurate information, and explained the sentence adequately.
  • Substantive reasonableness: asks whether the sentence is within the range of reasonable outcomes given the facts and § 3553(a), reviewed deferentially for abuse of discretion.
  • Uncharged conduct: behavior the defendant allegedly committed but was not convicted of in that case. At sentencing, judges may consider such conduct if it is reliably supported and attributed to the defendant by at least a preponderance of the evidence.
  • “Unwarranted” sentencing disparities (§ 3553(a)(6)): differences in sentences are not automatically illegal; they are problematic only when defendants with similar records and similar conduct are treated differently without a justified reason.
  • Preponderance of the evidence: a lower standard than “beyond a reasonable doubt,” meaning it is more likely than not that the conduct occurred.

5. Conclusion

The Seventh Circuit affirmed Withers’s 96-month sentence because the district court gave a record-supported, § 3553(a)-based explanation for the upward variance, permissibly weighed criminal history and deterrence concerns, and could consider uncharged but reliably supported shooting conduct under § 3661. The decision illustrates the appellate deference afforded to sentencing judges who clearly articulate individualized reasons—especially public-safety and deterrence rationales—for sentences above the advisory Guidelines range, and it underscores that disparity arguments must grapple with whether differences are “unwarranted” in light of the defendant’s particular record and conduct.