Upward Variances Cannot Be Based on Hypothetical Guideline Recalculations; Mental-Health Conditions Require Record Support and Findings

1. Introduction

United States v. Hendrickson concerns the limits of a district court’s discretion to impose (i) a major upward variance from the advisory Sentencing Guidelines and (ii) a special condition of supervised release requiring outpatient mental-health treatment.

The defendant, Marco Angele Hendrickson, was convicted by a jury of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(a)(8). The unusual factual posture mattered at sentencing: surveillance footage showed Hendrickson being approached and shot multiple times by an unknown assailant; Hendrickson returned fire while falling and later discarded the gun in a trash can. The PSR itself flagged the possibility that these “unique facts” could warrant a downward variance (while disclaiming that the language was necessarily a recommendation).

After resolving a Guidelines objection that reduced the advisory range to 18–24 months, the district court granted the government’s request for an upward variance and imposed 100 months, largely on the view that Hendrickson’s criminal history score was “way underrepresented” and the Guidelines were “ridiculously low.” The court also imposed a mental-health treatment condition as a “standard condition,” despite Hendrickson’s objection and a record that did not show diagnosis or treatment.

The Fifth Circuit vacated and remanded, holding (1) the upward variance was substantively unreasonable because it rested on an improper approach and failed to grapple with key mitigating circumstances, and (2) the mental-health condition lacked the record basis and factual findings required by statute and precedent. Judge Haynes dissented on the variance issue, stating she would affirm under deferential abuse-of-discretion review.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited (and how they shaped the result)

A. Substantive reasonableness framework

• Gall v. United States, 552 U.S. 38, 51 (2007)
  The opinion anchors the standard of review—abuse of discretion for preserved substantive reasonableness challenges. Gall supplies the appellate lens: deference to sentencing courts, but meaningful review of whether the explanation and the variance justification align with statutory factors.
• United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) and United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011)
  Diehl provides the Fifth Circuit’s articulation of when a non-Guidelines sentence becomes substantively unreasonable: failing to weigh a significant factor, weighing an improper factor, or a clear error in balancing. It also supplies the “farther the variance, the more compelling the justification” principle. Hernandez supports the “highly deferential” posture, which the court nevertheless found satisfied because the district court’s methodology was outside permissible bounds.
• Kimbrough v. United States, 552 U.S. 85, 101 (2007) and United States v. Booker, 543 U.S. 220, 245 (2005)
  These cases supply the post-Booker architecture: Guidelines are advisory; sentencing must remain tethered to § 3553(a) and the “sufficient, but not greater than necessary” parsimony principle. The panel uses them to emphasize that discretion is not license to invent alternative guideline regimes.
• United States v. Davis, 30 F.3d 613, 615 (5th Cir. 1994)
  Cited for the principle that upward departures/variances must be supported by “acceptable reasons” and be reasonable. The panel uses Davis to underscore that “underrepresented criminal history” can justify an upward move only if grounded in proper reasoning and the statutory framework—not in retroactive, hypothetical re-scoring.
• United States v. Gerezano-Rosales, 692 F.3d 393, 400-01 (5th Cir. 2012)
  The panel cites Gerezano-Rosales to reinforce that substituting improper considerations for proper § 3553(a) analysis constitutes abuse of discretion. In Hendrickson, the “as if it were 2009” and “as if the predicate were a crime of violence then” approach was treated as the same kind of impermissible sentencing logic.

B. Special conditions of supervised release

• United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016)
  Establishes abuse-of-discretion review for preserved challenges to special conditions and frames the inquiry through § 3583(d) compliance.
• United States v. Alvarez, 880 F.3d 236, 239-41 (5th Cir. 2018)
  Alvarez provides the controlling checklist: conditions must be “reasonably related” to specified § 3553(a) factors; involve no greater deprivation of liberty than necessary; be consistent with Sentencing Commission policy; and be supported by factual findings. The panel applies this directly, faulting the district court for calling the mental-health condition “standard” instead of justifying it on record evidence.
• United States v. Woods, 547 F.3d 515, 517 (5th Cir. 2008)
  Cited for the proposition that deviating from § 3583(d) requirements is an abuse of discretion. This anchors the conclusion that “just in case” treatment is not a permissible basis.
• United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014)
  Supports the requirement that district courts set forth factual findings to justify special conditions. The panel highlights the district court’s failure to “even attempt” such findings here.
• United States v. Bree, 927 F.3d 856, 860-61 (5th Cir. 2019)
  Provides the specific constraint for mental-health treatment: it should not be imposed absent record evidence of questionable mental health history or a particular diagnosis requiring treatment. The panel analogizes the error to imposing drug treatment on a defendant with no substance abuse history.

3.2 Legal Reasoning

A. The upward variance: why the panel found an abuse of discretion

The panel’s reasoning proceeds in two steps: (1) identifying an impermissible methodology urged by the government and adopted in substance by the district court, and (2) identifying an insufficient and one-sided sentencing explanation that failed to account for substantial mitigation reflected in the PSR and record.

(i) Impermissible “alternative Guidelines” sentencing

The government urged the district court to vary upward based on an asserted mismatch between Hendrickson’s current criminal history category and what his criminal history had been in 2009 (when he was sentenced for Hobbs Act robbery), and based on what the base offense level would have been if that earlier robbery had been treated as a “crime of violence” at the time. The panel rejected this as lacking authority and as inconsistent with § 3553(a).

The court framed the defect as effectively “first chang[ing] the factors before considering them”—a substitution of hypothetical scoring for the factors Congress directed sentencing courts to consider.

In substance, the panel treats this as an attempt to “re-punish” past conduct by reconstructing old sentencing inputs and importing them into the present—rather than evaluating the defendant’s history and characteristics as they exist under the applicable Guidelines and the statutory factors.

(ii) Failure to engage with salient mitigation and the actual offense circumstances

Even accepting that “underrepresented criminal history” can be a legitimate concern, the panel held the district court’s explanation showed it focused “extensively” on prior adult convictions, labeled the Guidelines “ridiculously low,” and imposed a 100-month sentence without acknowledging the PSR’s emphasized mitigation:

• Hendrickson was “seemingly randomly targeted” and shot five times.
• Video did not show him engaged in other criminal activity.
• He returned fire “in self-defense” in the ordinary sense (even if not satisfying a justification-defense instruction standard).
• He had no other contraband; the location was a busy commercial thoroughfare.

The panel also rejected the government’s attempt to use the district court’s jury-instruction discussion (denying a self-defense/justification instruction) as proof the judge “considered and rejected” the mitigation for sentencing. The panel drew a sharp line between:

• Trial entitlement to a justification instruction (a legal sufficiency question tied to the elements/defense framework), and
• Sentencing consideration of offense circumstances (a broader, fact-sensitive inquiry under § 3553(a)).

Put differently, the panel reasoned that one can lose a justification-defense instruction and still present powerful mitigation about the real-world context of the possession offense.

B. The mental-health condition: why it failed under § 3583(d)

The panel held the mental-health condition failed at multiple statutory and precedential checkpoints:

• No record basis showing need: The PSR stated Hendrickson reported no diagnoses or treatment; his sister said she did not believe he had been diagnosed with other mental health problems (though she opined he had depressive symptoms and might benefit from treatment). The panel held this did not equate to “reason to believe” treatment was needed.
• “Just in case” is not a lawful rationale: The probation officer’s addendum stated the condition was to ensure access to resources “should he need them.” The district court confirmed it could be modified later if probation deemed it unnecessary. The panel found this reverses the required logic: a condition must be justified now on evidence, not imposed speculatively and corrected later.
• Failure to make findings: The district court called it a “standard condition” and did not articulate factual findings connecting it to § 3553(a) factors, contrary to Alvarez and United States v. Salazar.
• Liberty and cost burdens: The condition required participation until “successfully discharged” and required cost contribution, including potentially medications. Without evidentiary grounding, the panel viewed these as unjustified liberty and financial impositions.

3.3 Impact

A. Sentencing variances in felon-in-possession cases with atypical offense circumstances

The opinion signals that, even in a case involving a defendant with extensive criminal history, a district court must meaningfully account for the instant offense circumstances—especially where the conduct involves possession and the record shows the defendant was attacked and reacted under mortal threat. Future sentencing disputes in similar “possession amid victimization” contexts will likely cite Hendrickson for the proposition that mitigation is not erased by criminal history and must be addressed on the record.

B. Limits on “underrepresented criminal history” rationales

The most practically important limitation is methodological: courts may not justify large upward variances by effectively re-running the Guidelines under historical or counterfactual assumptions (e.g., importing old criminal history points, manipulating “lookback” effects, or treating an offense as if it carried a different base offense level at the time). The opinion thus pushes parties to ground “underrepresentation” arguments in the existing Guidelines framework (including recognized departure mechanisms) and the actual § 3553(a) factors, not reconstructed scoring systems.

C. Supervised release conditions: “standard condition” is not a substitute for statutory compliance

The mental-health portion reinforces (and extends) Fifth Circuit trends requiring specific evidentiary support and findings. Probation’s desire to keep “options” available is not enough. This will matter in routine sentencing practice where conditions are sometimes imposed by default; Hendrickson underscores that default labeling invites reversal when a defendant preserves an objection.

4. Complex Concepts Simplified

Substantive reasonableness (what it means)

A sentence can be procedurally correct (proper calculations, opportunity to argue, etc.) yet still be substantively unreasonable if it is too long (or too short) given the legally relevant considerations. Under United States v. Diehl, a sentence is substantively unreasonable if the court ignores an important factor, relies heavily on an improper factor, or makes a clear error in balancing the factors.

Variance vs. departure

A departure is an adjustment authorized by the Guidelines’ internal rules. A variance is a sentence outside the advisory range based on § 3553(a). This case uses “upward variance” but draws on departure reasonableness principles (via United States v. Davis)—the key point being that whichever label applies, the reasons must be acceptable and tied to lawful factors.

“Lookback” periods and criminal history

The Guidelines count prior convictions within specified time windows. The government argued Hendrickson’s prior points were “washed out” because he served a long sentence near the lookback cutoff. The panel’s response was not that lookback rules are perfect, but that a court cannot fix perceived imperfections by inventing a new scoring system (e.g., “use his 2009 criminal history”).

Special conditions of supervised release under § 3583(d)

Discretionary conditions must be (1) reasonably related to certain § 3553(a) factors, (2) impose no greater liberty deprivation than necessary, and (3) be consistent with Sentencing Commission policy. For mental-health treatment, policy contemplates imposition when the court has reason to believe the defendant needs psychological/psychiatric treatment. Here, the court imposed treatment without evidence of need and without findings.

5. Conclusion

United States v. Hendrickson reinforces two core sentencing constraints in the Fifth Circuit:

• Major upward variances must be justified by lawful, case-specific reasons grounded in the actual § 3553(a) factors—not by counterfactual re-engineering of criminal history or offense levels to mimic past or hypothetical Guidelines outcomes.
• Mental-health treatment conditions require record support and factual findings; courts may not impose them as “standard” or “just in case” conditions, particularly when they carry ongoing participation requirements and cost obligations.

The remand underscores that discretion is broad but structured: sentencing courts must explain why the chosen sentence and conditions fit the defendant and the offense as they actually are, using the statutory framework Congress supplied and the evidentiary record developed in the case.