Upward Variances May Rest on Pretrial-Compliance Failures Revealed After a Bostic Objection: Sixth Circuit Affirms 21% Variance in United States v. Ellington

Introduction

This commentary analyzes the Sixth Circuit’s unpublished decision in United States v. Larry Ellington (No. 25-3033, Oct. 1, 2025), which affirms a 40-month sentence—an upward variance from the Sentencing Guidelines range of 27–33 months—for a felon-in-possession conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(8). The case addresses the substantive reasonableness of an above-Guidelines sentence imposed after the district court reconvened sentencing to hear live testimony in response to the defendant’s objections to the presentence report (PSR).

The key issue on appeal was whether the district court provided a sufficiently compelling justification for the 7-month upward variance in light of 18 U.S.C. § 3553(a). Ellington argued the court impermissibly relied on the same information at both hearings and placed excessive weight on his perceived disrespect of probation officers. The Sixth Circuit disagreed. It held that new, adverse facts elicited at the continued hearing—specifically, noncompliance with pretrial conditions like daily drug-testing call-ins and missed or stalled tests—meaningfully altered the record and justified the variance. The panel also rejected concerns that allowing such increases after a defendant’s objections would chill the assertion of rights, grounding its analysis in 18 U.S.C. § 3661’s broad permission for courts to consider any relevant information at sentencing.

Although “Not Recommended for Publication,” the opinion offers practical guidance on how district courts in the Sixth Circuit can rely on newly adduced evidence at continued sentencing hearings to support an upward variance, and how appellate courts will review such variances for substantive reasonableness.

Summary of the Opinion

The Sixth Circuit affirmed Ellington’s 40-month sentence as substantively reasonable. The district court initially sentenced him to 33 months (top of the Guidelines), then vacated that sentence to take testimony from Nevada pretrial services officers after Ellington objected to the PSR’s characterization of his interactions with them. At the continued hearing, the officers not only corroborated resistance to home inspections but introduced new information: Ellington repeatedly failed to comply with daily call-in requirements for drug testing and missed or “stalled” drug tests. Relying on this expanded record, the court imposed a 40-month sentence.

On appeal, Ellington challenged only substantive reasonableness. Applying a highly deferential standard, with “close review” for a purported “mine-run” offense, the panel held that the district court:

Identified and weighed appropriate § 3553(a) factors, including Ellington’s history and characteristics; his noncompliance on pretrial supervision; recency of recidivism; deterrence; and public safety;
Considered mitigating facts and national sentencing data for similar cases but found them outweighed by aggravating circumstances; and
Provided a sufficiently compelling justification to support a 7-month (approximately 21.21%) upward variance.

The court emphasized that there is no presumption against outside-Guidelines sentences and that judges may attach great weight to particular § 3553(a) factors when warranted by the individualized circumstances.

Analysis

Precedents Cited and Their Influence

United States v. Gates, 48 F.4th 463 (6th Cir. 2022), and United States v. Curry, 536 F.3d 571 (6th Cir. 2008): These cases frame substantive reasonableness as a proportionality inquiry under § 3553(a) and outline what makes a sentence substantively unreasonable. They anchor the panel’s deferential approach and emphasize that sentencing is not a mathematical exercise but one of reasoned discretion.
United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018), and United States v. Thomas, 933 F.3d 605 (6th Cir. 2019): These decisions reinforce the “highly deferential” review for substantive reasonableness, characterizing objections as disputes over the weight assigned to § 3553(a) factors. The court quotes Rayyan’s core principle that appellate review is limited and reversal lies only for abuse of discretion.
United States v. Lanning, 633 F.3d 469 (6th Cir. 2011) and United States v. Tate, 516 F.3d 459 (6th Cir. 2008): There is no presumption against sentences outside the Guidelines range. This matters because Ellington sought to cast the outside-Guidelines sentence as presumptively suspect; the panel rejects that notion.
United States v. Demma, 948 F.3d 722 (6th Cir. 2020); United States v. Brooks, 628 F.3d 791 (6th Cir. 2011); Gall v. United States, 552 U.S. 38 (2007); Rita v. United States, 551 U.S. 338 (2007): Together, these authorities define the requirements for sentencing explanations. The panel concludes that the district court’s explanation allowed meaningful appellate review and sufficiently linked its reasons to the degree of variance, consistent with Gall and Rita.
United States v. Perez-Rodriguez, 960 F.3d 748 (6th Cir. 2020): If an upward variance is imposed in a mine-run case, courts give the sentence “closer review” to ensure the justification is sufficiently compelling for the degree of deviation. The panel applied this closer scrutiny yet found the 21.21% variance adequately justified.
United States v. Bridgewater, 479 F.3d 439 (6th Cir. 2007); United States v. Zobel, 696 F.3d 558 (6th Cir. 2012); United States v. Thomas, 437 F. App’x 456 (6th Cir. 2011): A district court may assign “great weight” to one or two § 3553(a) factors when warranted; not all factors are equally important in every case. This supports the district court’s emphasis on Ellington’s pretrial noncompliance and recidivism risk.
United States v. Matheny, 450 F.3d 633 (6th Cir. 2006), and United States v. Melchor, 515 F. App’x 444 (6th Cir. 2013): Upholding upward variances based on recidivism potential and lack of respect for the law. The panel analogizes Ellington’s pattern of conduct—reoffending within two years of supervised release and resisting supervision—to these precedents.
United States v. Walls, 546 F.3d 728 (6th Cir. 2008), and United States v. Caver, 470 F.3d 220 (6th Cir. 2006): Provide the taxonomy of substantive unreasonableness—arbitrary selection, reliance on impermissible factors, failure to consider pertinent § 3553(a) factors, or giving unreasonable weight to a factor. The panel finds none of these errors.
18 U.S.C. § 3661: No limitation on the information a court may receive and consider at sentencing. This provision undercuts Ellington’s “chilling effect” argument by authorizing the court to rely on new, adverse testimony adduced after his objection—even if it results in a higher sentence—so long as the sentence is otherwise lawful.

The Court’s Legal Reasoning

The appellate court’s reasoning unfolds in two steps:

New information justified re-evaluating the sentence. Ellington claimed the district court used the same material from the first hearing to impose a higher sentence at the second. The panel rejects that premise. It points to testimony by probation supervisor Shiloh Badaway, which newly established that Ellington:
- Persistently failed to meet the daily call-in requirement for drug testing until late in supervision,
- Missed scheduled tests (“no shows”), and
- “Stalled” during tests (failed to provide a sample).
These facts were neither aired at the first hearing nor contained in the PSR. The district judge explicitly cited this new information as a significant basis for the variance, making a clear record that the upward move was not a mere change of heart on identical facts.
The degree of variance was supported by § 3553(a). The district court:
- Considered Ellington’s history and characteristics, including pretrial noncompliance and attempts to dictate supervision terms,
- Stressed the need for deterrence and protection of the public, particularly because the instant offense followed within two years of a supervised-release term,
- Weighed the nature and circumstances of the offense—including being found with a loaded pistol in a “no firearms” establishment in a high-crime area,
- Addressed sentencing disparities by reviewing national averages (24 months) and median (27 months) for similarly situated defendants but explained why those benchmarks were “woefully inadequate” for Ellington, and
- Accounted for mitigating considerations, such as an adverse childhood and employment history, but found them outweighed by recidivism risk and noncompliance.
In line with Gall, the court matched the extent of the variance (21.21%) with reasons of corresponding strength. The panel emphasized that attaching considerable weight to pretrial noncompliance and recidivism risk is permissible and supported by circuit precedent.

The opinion also addresses Ellington’s policy-based “chilling effect” concern that increased sentences after a defendant’s objection will discourage preservation of appellate rights. The panel finds the concern “misguided” where the increase is anchored in new information elicited at the continued hearing, reaffirming the principle that § 3661 authorizes courts to consider a broad range of facts when imposing an appropriate sentence.

Impact and Practical Significance

Although unpublished and therefore nonbinding, Ellington provides persuasive guidance on several recurring sentencing issues:

Pretrial-compliance failures are material to sentencing. Violations or resistance during pretrial supervision—including missed call-ins and drug-test issues—can significantly increase a sentence if the court finds they reflect poor amenability to supervision, elevated recidivism risk, or danger to the community.
Continued hearings can reshape the sentencing calculus. When a defendant contests PSR characterizations, courts may develop the record through live testimony. That process can surface unfavorable facts that justify a higher sentence. Defense counsel should weigh this risk when deciding how to litigate PSR factual disputes and consider preparing countervailing mitigation.
No presumption against variances; close review still deferential. Even with “closer review” for a mine-run offense under Perez-Rodriguez, the standard remains highly deferential. Detailed, fact-specific explanations that link § 3553(a) factors to the variance degree will likely be upheld.
§ 3661 remains a powerful tool. By invoking § 3661, Ellington clarifies that new adverse information emerging post-objection may permissibly influence the sentence, diminishing the force of “chilling effect” arguments absent evidence of vindictiveness or reliance on impermissible factors.
Record-building best practices. The district court explicitly noted probation’s recommendation, provided notice it would consider an upward variance, articulated factor-by-factor reasoning, and anchored the increase in newly adduced testimony. This blueprint facilitates meaningful appellate review and increases affirmance odds.

Potential open questions or guardrails:

While the panel did not address judicial vindictiveness doctrine (e.g., where a higher sentence follows a successful procedural objection but without new facts), Ellington suggests that increases grounded in genuinely new, reliable information—rather than retaliatory motives—are durable on appeal.
The opinion did not need to reach procedural reasonableness (Ellington did not raise it), but its careful emphasis on explanation and notice underscores how procedural robustness can inoculate a sentence from reversal.

Complex Concepts Simplified

Substantive vs. procedural reasonableness: Procedural reasonableness asks whether the judge followed the right steps (correct Guidelines calculation, consideration of § 3553(a) factors, accurate facts, adequate explanation). Substantive reasonableness asks whether, given those proper steps, the sentence chosen is too long or too short in light of the factors. Ellington challenged only substance, not procedure.
Upward variance vs. departure: A variance is a sentence outside the Guidelines range based on § 3553(a) factors. A “departure” refers to movement within the Guidelines framework under specified policy statements. Ellington involves a variance.
“Mine-run” case and “closer review”: In the Sixth Circuit, when a district court imposes an upward variance in an ordinary case (not unusually aggravated), appellate courts look “closer” to ensure the reasons convincingly support the degree of variance. That is still deferential review.
Bostic objection: In the Sixth Circuit, judges ask at sentencing whether the parties have objections not previously raised (the “Bostic question”). Raising an objection preserves issues for appeal. Ellington clarifies that if a court reconvenes sentencing in response and learns new adverse information, it may rely on that information to increase the sentence.
18 U.S.C. § 3661: At sentencing, courts face no categorical limit on the information they may consider about the defendant’s background, character, and conduct. This broad admissibility supports reliance on pretrial supervision compliance, even if unrelated to the offense-of-conviction elements.
“Meaningful appellate review”: A sentencing explanation must be detailed enough for an appellate court to understand what the judge considered and why the sentence imposed fits the case. It need not be lengthy if the issues are straightforward and the reasoning is clear.

Conclusion

United States v. Ellington reaffirms that a district court may impose an upward variance where newly adduced evidence at a continued sentencing hearing demonstrates heightened recidivism risk, poor amenability to supervision, and disrespect for legal obligations. The Sixth Circuit’s decision underscores four durable propositions:

There is no presumption against sentences above the Guidelines range.
New facts developed after a defendant’s objection can legitimately support a higher sentence under § 3661.
Courts may assign great weight to pretrial-supervision compliance when evaluating § 3553(a) factors such as deterrence, public safety, and the defendant’s history and characteristics.
Even “close review” of upward variances remains highly deferential if the rationale matches the degree of deviation and the explanation permits meaningful appellate review.

For practitioners, Ellington is a practical reminder that how a defendant performs on pretrial release—and how robustly the record captures that performance—can decisively shape the ultimate sentence. For district courts, it models a careful, transparent approach to reconvening sentencing, receiving testimony, articulating § 3553(a) findings, and calibrating variances to the strength of the record. Though unpublished, the opinion is a persuasive roadmap for justifying modest upward variances based on credible, newly presented information.