affirming district court’s assignment of statutory maximum despite defendant’s cancer diagnosis
How later courts described this case
- affirming district court’s assignment of statutory maximum despite defendant’s cancer diagnosis
- deferring to the district after it “explicitly” considered the § 3553(a) factors
- affirming district court’s upward variance despite defendant’s “ill health”
- finding that declining downward variance was substantively reasonable for a defendant in “fragile medical condition”
Written by the judges who cited it.
The opinion
Case: 24-30214 Document: 56-1 Page: 1 Date Filed: 05/30/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 30, 2025
No. 24-30214
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Elijah D. Brown,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:22-CR-226-1
______________________________
Before Graves, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
Elijah Brown pleaded guilty to two counts of machinegun possession.
He now challenges the substantive reasonableness of his sentence, an upward
variance from the Sentencing Guidelines recommendation. We AFFIRM.
I
On September 23, 2022, Shreveport police officers responded to an
“armed persons call” at the Peach Street Apartments. Upon their arrival,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 24-30214 Document: 56-1 Page: 2 Date Filed: 05/30/2025
No. 24-30214
officers observed a man carrying a rifle and getting into the backseat of a white
Jeep parked outside the apartment complex. An officer asked the man and
the driver, Tedric Ratcliff, to step out of the vehicle, patted them down, and
detained them. The vehicle was searched, and officers recovered multiple
firearms. Further investigation revealed that the vehicle was stolen, as were
two of the firearms recovered from the vehicle. Officers also found 9.7 grams
of marijuana in the car.
As relevant here, officers recovered a tan 9 mm Glock pistol with a
“Glock switch,”1 and a Palmetto Arms 7.62 AR rifle with a drop-in auto sear.
Officers also found a small backpack containing Brown’s ID and medication
prescribed to him. They located Brown sitting on the steps of a nearby
apartment about 30 yards away from the vehicle and took him into custody.
Brown was charged with two counts of illegal possession of a machinegun
under 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d). Ratcliff, his stepfather,
was charged with the same offenses.
After a failed motion to suppress the evidence against him, Brown
pleaded guilty to both counts. The presentence report (“PSR”) calculated a
base offense level of 18 because the Glock pistol equipped with the Glock
switch was a machinegun. Brown had no prior convictions, placing him in
Criminal History Category I. And he demonstrated acceptance of
responsibility for the offense, earning a three-level deduction, making his
final offense level 15. This yielded an advisory guidelines range of 18–24
months of imprisonment.
The PSR also described Brown’s medical history in some detail.
Brown was diagnosed with congestive heart failure at age 19. He now has a
_____________________
1
“Glock switch” is slang for a disconnector that holds down the trigger bar on a
Glock pistol, allowing it to fire more quickly.
2
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No. 24-30214
left ventricular assist device (LVAD) implanted in his chest, operated using
a controller and battery pack worn outside his body. He also uses an intra-
aortic balloon pump (IABP) attached to his heart. Brown is in custody in
Davant, Louisiana, so he can receive regular treatment at the nearby Ochsner
LSU Medical Center. He takes five medications to manage his physical
conditions and another for anxiety.
Neither Brown nor the Government submitted objections to the
PSR’s recommended prison sentence. Brown likewise did not object to the
PSR or the Guidelines range at his sentencing. At the sentencing hearing,
however, Brown’s counsel urged the court to take his medical conditions into
account.
The district court imposed a sentence of 42 months in prison. The
sentence was “designed to send a message to other people in Shreveport who
convert ordinary firearms into automatic weapons.” Brown’s counsel
objected and timely noticed an appeal. Brown argues here that the district
court’s upward variance was substantively unreasonable because it “did not
account for Brown’s life threatening medical condition” and “gave
significant weight to the court’s extrinsic views.”
II
At the outset, the parties dispute the applicable standard of review.
While we review a preserved substantive-reasonableness claim for abuse of
discretion, United States v. Woods, 102 F.4th 760, 765 (5th Cir. 2024), an
unpreserved claim is reviewed for plain error, United States v. Williams, 620
F.3d 483, 493 (5th Cir. 2010). Here, however, we “pretermit[] the question
of how to preserve a particular substantive-reasonableness argument”
because Brown “could not prevail even under the less deferential standard.”
United States v. Zarco-Beiza, 24 F.4th 477, 481 (5th Cir. 2022) (internal
quotation marks and citation omitted). See also United States v. Holguin-
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No. 24-30214
Hernandez, 955 F.3d 519, 520 n.1 (5th Cir. 2020) (declining to reach specific
preservation arguments on remand from Supreme Court where defendant
failed under both).
III
Substantive reasonableness review is “highly deferential.” Woods, 102
F.4th at 765 (quoting United States v. Fraga, 704 F.3d 432, 439 (5th Cir.
2013). Even if we “might reasonably have concluded that a different sentence
was appropriate,” that alone “is insufficient to justify reversal of the district
court.” Gall v. United States, 552 U.S. 38, 51 (2007). Our deference reflects
that “[t]he sentencing judge has access to, and greater familiarity with, the
individual case and the individual defendant” than we do. Rita v. United
States, 551 U.S. 338, 357 (2007).
When reviewing a sentence for substantive reasonableness, we
consider “the totality of the circumstances.” Gall, 552 U.S. at 51. “A
sentence is substantively unreasonable if it does not account for a factor that
should have received significant weight, gives significant weight to an
irrelevant or improper factor, or represents a clear error of judgment in
balancing the sentencing factors.” United States v. Warren, 720 F.3d 321, 332
(5th Cir. 2013) (cleaned up) (referring to the factors from 18 U.S.C.
§ 3553(a)).
A
Brown first contends the district court “did not account for [his] life
threatening medical condition.” We disagree. The district court first
mentioned its awareness of Brown’s “mental health issues,” and the
“medication” found with the converted Glock pistol in his backpack. It then
noted its consideration of his “physical and mental health condition.” The
district court further recommended that Brown be housed somewhere he
could receive physical and mental health care “to maintain [his] status as best
4
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No. 24-30214
as possible.” The court expressed confidence that the Bureau of Prisons
“does have the capability of assisting” Brown in managing his conditions.
The district court merely decided not to give his medical conditions
controlling weight. Accord United States v. Rodriguez, 523 F.3d 519, 526 (5th
Cir. 2008) (finding that declining downward variance was substantively
reasonable for a defendant in “fragile medical condition”); United States v.
Gutierrez, 635 F.3d 148, 155 (5th Cir. 2011) (affirming district court’s upward
variance despite defendant’s “ill health”); United States v. Neba, 901 F.3d
260, 264 (5th Cir. 2018) (affirming district court’s assignment of statutory
maximum despite defendant’s cancer diagnosis).
B
Brown next contends the district court “gave significant weight to
extrinsic evidence from outside the record” by considering “its own personal
beliefs” about gun violence. The district court noted that Brown’s offense
made him “part of the problem with the gun violence in Shreveport.” Brown
alleges this was improper because the district court based his sentence on “its
own personal beliefs concerning Glock switches” and observations about gun
violence and automatic firearms that find “no support in the record.”
First, deterrence is one of the permissible sentencing factors in 18
U.S.C. § 3553(a)(2)(B). See also U.S.S.G. Ch. 4, Pt. A, intro. comment.
(“General deterrence of criminal conduct dictates that a clear message be
sent to society . . . .).2 The district court also explained that the upward
variance was primarily designed to “reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for this offense.”
_____________________
2
The requirement that district courts make “individualized, case-specific”
sentencing decisions, United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008),
cannot preclude their consideration of deterrence, a Guidelines-sanctioned factor that, by
its nature, requires some “[l]umping.” See post, at 18 (Graves, J., dissenting).
5
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No. 24-30214
These factors are all included in § 3553(a)(2)(A). Cf., e.g., United States v.
Smith, 977 F.3d 431, 437 (5th Cir. 2020) (upholding district court’s “heavy
sentence” designed to “send a message”).
Second, the district court did not reversibly err by relying on
unreliable facts. “There is a long and durable tradition that sentencing judges
enjoy discretion in the sort of information they may consider” in sentencing.
Concepcion v. United States, 597 U.S. 481, 491 (2022) (cleaned up). In fact,
the “scope” of that “inquiry” is “largely unlimited either as to the kind of
information he may consider, or the source from which it may come.” United
States v. Tucker, 404 U.S. 443, 446 (1972). See also Williams v. New York, 337
U.S. 241, 250–51 (1949) (declining to “treat[] the due-process clause as a
uniform command that courts . . . abandon their age-old practice of seeking
information from out-of-court sources to guide their judgment toward a more
enlightened and just sentence” or “restrict[] the view of the sentencing judge
to the information received in open court”).
Rather, the district court’s sentencing considerations need only
“have some minimal indicium of reliability and bear some rational
relationship to the decision to impose a particular sentence.” United States v.
Young, 981 F.2d 180, 187 (5th Cir. 1992) (quotation omitted). That
requirement is “not intended to be onerous.” United States v. Malone, 828
F.3d 331, 337 (5th Cir. 2016). Of course, a district court cannot rely on
materially untrue information—but under our precedent, the defendant
bears the burden of demonstrating the sentencing court ran afoul of that rule.
United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004).
Here, the district court was chiefly concerned with the devices used
to convert Brown’s two firearms into automatic weapons. See, e.g., ROA.174
(“No one puts a Glock switch on a Glock firearm for the heck of it. There’s
a purpose involved, and it’s not lawful.”). Brown does not point to any fact
6
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No. 24-30214
or finding that was inaccurate or unlawful. Thus it is sufficient for present
purposes to hold that Brown has not carried his burden to show that the
district court reversibly erred.
C
As a last resort, Brown objects to the district court’s balancing of the
sentencing factors. While a district court abuses its discretion when it makes
“a clear error of judgment in balancing the sentencing facts,” United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006), no such error occurred here.3
Brown alleges the district court gave too little weight to mitigating factors,
like his lack of criminal history and medical condition, and too much weight
to deterrence. But “it is not possible, let alone required,” for the district
court to “give incommensurable factors such as ‘the history and
characteristics of the defendant’ and ‘adequate deterrence to criminal
conduct,’ equal weight.” United States v. Hernandez, 633 F.3d 370, 375 (5th
Cir. 2011). See also Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 406 (5th
Cir. 2019) (affirming reasonableness of sentence because district court
adequately considered “medical challenges” and appellant contested only
“how [the § 3553(a)(2)] factors should have been weighed”). Although the
district court did not give a fulsome description of the weight it gave to
Brown’s medical condition, it “must have believed that there was not much
more to say.”4 Rita, 551 U.S. at 358, see also id. at 359 (holding that where
_____________________
3
While sentencing courts must indeed “consider every convicted person as an
individual,” post, at 18 (Graves, J., dissenting) (citing Gall, 552 U.S. at 52), the quoted
language from Gall also states: “[t]he uniqueness of the individual case, however, does not
change the deferential abuse-of-discretion standard of review that applies to all sentencing
decisions.” Gall, 552 U.S. at 52. Even in cases of a “significant variance” from the
Sentencing Guidelines, such deference is required. Id. at 56.
4
Our dissenting colleague objects to this quotation of Supreme Court precedent.
See post, at 13 (Graves, J., dissenting). While we agree that district courts significantly
ease the task of meaningful appellate review by comprehensively explaining sentencing
7
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No. 24-30214
“the sentencing judge considered the evidence and arguments,” the law does
not “require[] the judge to write more extensively”). Even if we would
choose a “different sentence,” that “is insufficient to justify reversal.”5 Gall,
552 U.S. at 51.
Finally, in evaluating substantive reasonableness, we may consider
“the extent of the deviation” from the Guidelines recommendation. Id. But
“there is no presumption of unreasonableness for an above-Guidelines
sentence.” Woods, 102 F.4th at 765. Here, the sentence imposed exceeded
the Guidelines recommendation by 18 months, or 75%. We have upheld
“similarly ‘major’ upward variances.” United States v. Hudgens, 4 F.4th 352,
359 (5th Cir. 2021). See, e.g., Woods, 102 F.4th at 766 (upholding 114% upward
_____________________
decisions, id. at 13, “the Supreme Court has not imposed stringent requirements regarding
the length or detail of such an explanation.” Fraga, 704 F.3d at 438. Rather, where the
sentencing judge “heard and considered the evidence and arguments,” heard allocution,
and explained the reasons for the upward variance, we may engage in “effective review; no
further explanation [is] required.” Id. at 439.
5
It appears that our dissenting colleague would do more than just choose a different
sentence. Going further, the dissenting opinion casts doubt on the charges and guilty plea
itself. See post, at 14–15 (Graves, J., dissenting) (implying that Brown was either not
responsible for the charged conduct or did so only at the behest of his stepfather, who “was
arguably in a position of power over him”). If the appellate standard of review bars us from
reversing a district court where “we might reasonably have concluded that a different
sentence was appropriate,” Gall, 552 U.S. at 51, it surely bars us (at the request of no party,
and upon no challenge to the guilty plea or charges) from speculating about the facts
underlying the indictment, PSR, and guilty plea.
Moreover, the Supreme Court has long noted district courts’ “institutional
advantage over appellate courts in making” factual determinations at sentencing. Koon v.
United States, 518 U.S. 81, 98 (1996). The same applies to the officers and prosecutors who
investigate facts, make charging decisions, and offer and accept plea deals. We will not,
absent an actual legal challenge, evaluate sentencing based on facts adduced in another case
and our own inferences from them. See post, at 15 (Graves, J., dissenting). That
institutional advantage perhaps explains why our dissenting colleague’s alternative theory
does not address that police discovered photos of Brown himself holding the tan Glock with
the switch installed.
8
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No. 24-30214
variance); United States v. Jones, 75 F.4th 502, 506–07 (5th Cir. 2024)
(upholding 100% upward variance); United States v. Brantley, 537 F.3d 347,
348 (5th Cir. 2008) (upholding 253% upward variance); United States v.
Hebert, 813 F.3d 551, 562 (5th Cir. 2015) (upholding 1214% upward variance).
* * *
Brown has shown no reversible error in the district court’s sentence.
We therefore AFFIRM.
9
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No. 24-30214
James E. Graves, Jr., Circuit Judge, dissenting:
The majority affirms the district court’s above-Guidelines sentence.
Because this sentence amounts to a near-life sentence, did not account for
relevant factors, and the justifications for varying upward lack support in the
record, I find the sentence substantively unreasonable under the totality of
the circumstances, and respectfully dissent.
“In reviewing a non-Guidelines sentence for substantive
reasonableness, the court will consider the totality of the circumstances.”
United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012). There
are three ways a sentence can be substantively unreasonable and an abuse of
discretion: (1) it does not account for an 18 U.S.C. § 3553(a) factor that
should have received significant weight, (2) it gives significant weight to an
irrelevant or improper factor, or (3) it demonstrates a clear error in judgment
in balancing the sentencing factors. United States v. Warren, 720 F.3d 321,
332 (5th Cir. 2013).
Brown’s sentence is substantively unreasonable in all three ways.
I
18 U.S.C. § 3553(a) details the factors to be considered in imposing a
sentence. The first is “the nature and circumstances of the offense and the
history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Brown
argues that the district court improperly assessed this factor because it failed
to account for his life-threatening medical condition. Given the record, I
agree.
At age eighteen—while still in high school—Brown was diagnosed
with congestive heart failure, a severe condition in which the heart fails to
pump blood efficiently. To save his life, doctors inserted a balloon pump in
Brown’s femoral artery and guided it up to his heart, using an external
10
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No. 24-30214
machine to inflate and deflate Brown’s heart.1 Later, doctors implanted a left
ventricular assist device (LVAD), a battery-operated pump that sits near and
connects to his heart in the chest cavity.2 A cable that transmits electricity—
so that the pump drives blood into Brown’s heart—runs from the LVAD to
an external unit that supplies the electricity and monitors many metrics to
ensure the heart and Brown do not die.3 This control unit, in turn, is
connected to a battery pack in a bag that Brown wears at all times. With these
devices, Brown was given a prognosis that he had ten years to live—nearly
seven of which have passed as of this writing in March 2024.4
Despite this, Brown graduated high school, where he also participated
in the United States Army’s Reserve Officers’ Training Corps (ROTC)
program. Throughout, he worked at least one part-time job until he was
declared disabled. Brown also tried his hand at higher learning. But shortly
after starting college, where he was studying nursing, Brown left due to his
congestive heart failure. He continues to struggle with shortness of breath,
chest pain, and bed sores, and is currently taking six medications to deal with
blood clotting, pain, heart damage, and the anxiety of his impending doom.
_____________________
1
See Intra-Aortic Balloon Pump Therapy, Johns Hopkins Med.,
https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/intra-aortic-
balloon-pump-therapy.
2
See Left Ventricular Assist Device (LVAD), Stanford Med.,
https://stanfordhealthcare.org/medical-treatments/l/lvad.html.
3
Id.
4
One study on LVAD devices found that there was only a fifty-one percent survival
rate through seven years, with the most common cause of death being multisystem organ
failure. Daniel Zimpfer et al., Long-Term Survival of Patients with Advanced Heart Failure
Receiving a Left Ventricular Assist Device Intended as a Bridge to Translation, 13
Circulation: Heart Failure 3 (March 13, 2020), https://www.ahajournals.org/
doi/10.1161/ CIRCHEARTFAILURE.119.006252.
11
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No. 24-30214
Due to violent crime in Shreveport, Brown and his family moved to
Fort Worth, Texas. He lived with his mother until August 2022, when he
moved into a one-bedroom apartment in Irving, Texas with his fiancée.
The next month, Shreveport police officers responded to an armed
persons call. An officer spotted a man, Sellers, carrying a rifle into a stolen
Jeep. Another officer went to the Jeep and asked Sellers and his passenger,
Ratcliff, to step out of the vehicle. During a search of the vehicle, officers
located two stolen Glocks and two guns registered to Brown, both with a
conversion device installed. Officers also found a small backpack that
contained Brown’s medication and identification. Officers found Brown
approximately 90 feet away, sitting on the steps of a nearby apartment. Sellers
stated he had seen Brown with his registered Glock months prior but the day
of the arrest was the first time he had seen it with the switch.
In connection with this incident, Brown was arrested at twenty-two
years old. He had never been arrested before. Eighteen months later, Brown
was sentenced. During his allocution at sentencing, Brown, in part, stated:
[W]ith my [LVAD] bag, my projected lifespan is supposed to
be ten years. I’ve had it for almost four[,] . . . it makes me realize
that I don’t got long, so I need to get back in school, finish what
I was doing, and just live the rest of my life the best I can.
Then his counsel asked the Court to consider his medical condition prior to
handing down a sentence.
The entirety of the district court’s discussion about Brown’s
medical condition is made up of three brief remarks. First, it said that “[t]he
court is well aware of the mental health issues facing this particular defendant
and the medication that was found in the backpack.” Second, it explained
that the “sentence was selected after consideration of the factors in [18
U.S.C. § 3353(a)] pertaining to . . . his physical and mental health condition.”
12
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No. 24-30214
Third, it added that it would “make a recommendation to the Bureau of
Prisons that [Brown] be housed in a facility that is equipped to handle [his]
current physical condition as well as [his] mental health issues with the
medication necessary to maintain [his] status as best as possible.”
The majority says the district court’s failure to “give a fulsome
description of the weight it gave to Brown’s medical condition” is because
“it ‘must have believed that there was not much more to say.’” Ante at 7
(quoting Rita v. United States, 551 U.S. 338, 358 (2007)).
This is precisely the type of case where there is more to say. “The
court, at the time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c). Shall denotes it
is mandatory, not advisory. We should not be left to speculate about what the
district court “must have believed.”
The district court said that it considered Brown’s mental condition—
his anxiety—and the medications found in his backpack, but the record does
not indicate what those medications were. The district court mentioned
Brown’s “physical condition,” but made no explicit reference to his
congestive heart failure and the impact the disease has on how long he will
likely live. The district court mentioned Brown’s “current physical
condition” in recommending where his sentence should be served. But it
made no mention of its effect on the length of the sentence. Those terse
references to Brown’s physical condition are insufficient to support the
district court’s sentence.
In my view, a lethal condition should receive “significant weight,” so
it must be accounted for. Warren, 720 F.3d at 332. A district court’s
consideration of the § 3553(a) factors requires an “individualized assessment
based on the facts presented.” Gall v. United States, 552 U.S. 38, 50 (2007).
“After settling on the appropriate sentence, [the district court] must
13
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No. 24-30214
adequately explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.” Id.
But as detailed above, the district court failed to “adequately explain”
how it considered Brown’s congestive heart failure, making it difficult for us
to apply “meaningful appellate review.” Id.; cf. United States v. McElwee, 646
F.3d 328, 344–45 (5th Cir. 2011) (deferring to the district after it “explicitly”
considered the § 3553(a) factors); United States v. Gonzalez-Flores, 638 F.
App'x 406, 407 (5th Cir. 2016) (unpublished) (“In pronouncing sentence,
the district court specifically referenced the sentencing factors . . . and it
explained how they applied based upon the facts of the case. Thus, the
district court’s reasons for the sentence were fact-specific and consistent
with the 18 U.S.C. § 3553(a) sentencing factors.”). That alone suffices to
vacate and remand. Otherwise, how can we “ensure that the justification is
sufficiently compelling to support the degree of the variance”? Id.
It is also not apparent that the district court considered “the nature
and circumstances of the offense.”5 18 U.S.C. § 3553(a)(1). There are
multiple concerning elements of this arrest and charge that the district court
elides. And at least one that it gets wrong.
_____________________
5
The majority reads my forthcoming analysis (1) as an implication that Brown was
either not responsible for the charged conduct or did so only at the behest of his stepfather
and (2) as an affront to the institutional advantage that district courts have at making factual
determinations. See ante at 8 n.5. But I am not speculating about the facts; I am simply
stating them and considering them. That is what the statutory code makes clear is not only
appropriate but required. See 18 U.S.C. § 3553(a)(1) (mandating that the district court
consider the nature and circumstances of the offense). Yes, the district court has an
institutional advantage and could have made these factual determinations. That is precisely
why the district court is required to do so in the first instance. And that is why we should
vacate and remand so that it, not this court, engages in this fact-intensive inquiry and
balancing.
14
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The district court said that the Glock with the switch was inside the
backpack that included Brown’s medication. That is wrong. The Pre-
Sentence Investigation Report (PSR) says the Glock was under the backpack.
This raises the concern that while Brown owned the Glock, he, who was
about ninety feet away from the vehicle, did not actually possess the weapon
at the time of his arrest. And the only person who had a conversion device on
their person was Ratcliff, who possessed the vehicle, was in the vehicle with
the guns, had several previous arrests and multiple convictions, and as
Brown’s stepfather, was arguably in a position of power over him. United
States v. Ratcliff, 2025 WL 618105, at *2 (5th Cir. February 26, 2025).
Yet none of this was discussed by the district court as it sentenced
Brown. There is little in the record to support the conclusion that the district
court, as mandated by 18 U.S.C. § 3553(a)(1), considered “the nature and
circumstances of the offense and the history and characteristics of the
defendant.” 18 U.S.C. § 3553(a)(1).
II
Another way that a sentence can be substantively unreasonable is if it
gives significant weight to an irrelevant or improper factor. Warren, 720 F.3d
at 332. Brown accurately points out that the district court based its sentence
on multiple “facts” that were not supported by the record.
The district court said that Brown was “part of the problem with the
gun violence in Shreveport.” But there is no evidence in the record that
Brown ever committed any crime of violence or used any firearm in any
crime. Again, Brown had no criminal record whatsoever. Notably, Brown
registered both of his firearms. That is not the typical behavior of individuals
planning to go out and commit crimes, because, of course, the guns would be
readily traced back to them. Moreover, Brown was a resident of Irving,
Texas—not Shreveport—at the time of his arrest.
15
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No. 24-30214
The district court also relied on its belief that a Glock with a switch is
“inaccurate” “with the casings spread all over everywhere wherever they’re
fired. And there’s no aim and there’s no control over this, and people who
have nothing to do with the encounters . . . are shot and killed.” As Brown
correctly argues, there is nothing in the record to support these assertions.
This clearly runs afoul of the sensible rule that “a district court may reference
information from outside the record at sentencing so long as the court does
not rely on such extrinsic information in its sentencing determination.”
United States v. Roy, 88 F.4th 525, 531 (4th Cir. 2023) (emphasis in original)
(citing United States v. Thompson, 864 F.3d 837, 842 (7th Cir. 2017); and
United States v. Meyer, 790 F.3d 781, 783 (8th Cir. 2015)).
We have previously stated that a “district court may consider any
information that bears sufficient indicia of reliability to support its probable
accuracy.” United States v. Landreneau, 967 F.3d 443, 451 (5th Cir. 2020)).
The majority now extends that principle to say that a district court
may also rely on extrinsic information. To get there, the majority points to
United States v. Ramirez, 367 F.3d 274 (5th Cir. 2024) for the premise that
“the defendant bears the burden of demonstrating that the sentencing court
ran afoul” of the rule that a district court cannot rely on materially untrue
information. Ante at 6–7. But in Ramirez, the information was in the record.
As it was in United States v. Young, 981 F.3d 180, 188 (5th Cir. 1992), and the
line of cases that led to Young. See United States v. Galvan, 949 F.3d 777, 784
(5th Cir. 1991); United States v. Fulbright, 804 F.2d 847, 853 (5th Cir. 1986);
United States v. Tucker, 404 U.S. 443, 445 (1972). Here, it is not.
Due process requires that “sentencing facts must be established by a
preponderance of the evidence.” United States v. Johnson, 648 F.3d 273, 277
(5th Cir. 2011). Sure, “[g]enerally, a PSR ‘bears sufficient indicia of
reliability to be considered by the sentencing judge in making factual
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determinations.’” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
But here the “facts” the district court relied on were not in the PSR, or
anywhere else in the record.
Much like our sister circuits, in my view, a sentence that relies on facts
outside of the record flouts the constitutional due process to which a criminal
defendant is entitled. See Roy, 88 F.4th at 531 (citing Thompson, 864 F.3d at
842; and Meyer, 790 F.3d at 783). This not only generally undermines the rule
of law, but specifically renders the district court’s sentence substantively
unreasonable.
III
Another way that a sentence can be substantively unreasonable is if it
“represents a clear error of judgment in balancing the sentencing factors.”
Warren, 720 F.3d at 332. Brown contends that the district court gave too little
weight to mitigating factors, like his lack of criminal history and life-
threatening medical condition, and too much weight to deterrence. I agree.
True, we cannot expect district courts to “give incommensurable
factors . . . equal weight.” United States v. Hernandez, 633 F.3d 370, 375 (5th
Cir. 2011). Instead, we expect them to “use their judgment to weigh the
relative importance of each factor in relation to each particular defendant, with
some factors being more important in some cases and other factors more
important in others.” Id. (emphasis supplied). In other words, we expect
district courts to give the sentencing factors their due weight. The record
does not convince me that the district court did; if you do not weigh relevant
facts of an important factor, then it cannot have been given its due weight.
Brown allocuted that he had around six years to live. Yet, the district
court sentenced him to three-and-a-half years in prison, a year and a half
longer than the upper guideline figure—175% of the upper limit. Such “[a]
major deviation from the Guidelines range requires a greater justification
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than a minor one.” United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013)
(citing Gall, 552 U.S. at 50). But that “greater justification” is lacking.
Even if we presume that the district court considered the substantive
impact Brown’s health should have on his sentence, the counterweight the
district court offered is unavailing. The district court’s variance was
“designed to send a message” to people modifying guns that led to the death
of “people who have nothing to do with the encounters for which these
weapons are maintained are shot and killed.” But the district court conceded
that there was “no indication [Brown was] involved in that kind of conduct,”
and failed to tie the hope of sending a message to the particulars of this case
in a meaningful fashion. United States v. Aguilar-Rodriguez, 288 F. App'x 918,
921 (5th Cir. 2008) (unpublished).
“It has been uniform and constant in the federal judicial tradition for
the sentencing judge to consider every convicted person as an individual and
every case as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.” Gall, 552 U.S.
at 52 (emphasis supplied); accord United States v. Cortez-Balderas, 74 F.4th
786, 790 (5th Cir. 2023) (requiring “individualized, case-specific reasons”).
In my view, the district court’s opinion markedly deviates from this tradition.
Lumping Brown in with nonparty criminals defies the statutory
mandate that courts must perform an “individualized assessment based on
the facts presented.” Gall, 552 U.S. at 50. Even under a highly-deferential
standard of review, see United States v. Woods, 102 F.4th 760, 765 (5th Cir.
2024), using Brown’s sentence to “send a message to other people in
Shreveport” without giving due consideration to there being “no identifiable
victims to his offense,” or these being his final years on Earth “represents a
clear error of judgment in balancing the sentencing factors.” Warren, 720
F.3d at 332. In doing so, the district court breached its obligation to “impose
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a sentence, sufficient, but not greater than necessary to comply with” the
purposes of the § 3553(a) factors.6
IV
To summarize, “[i]n reviewing a non-Guidelines sentence for
substantive reasonableness, the court will consider the totality of the
circumstances.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th
Cir. 2012). Section 3553(a) requires that courts consider a slew of factors:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes from the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
_____________________
6
Brown is arguing that the district court failed to give sufficient weight to his life-
threatening illness, and that in doing so, the district court decided to take away an extra
forty percent of the time Brown has left before his heart will likely stop functioning.
Moreover, save for child crimes and sexual offenses, “the court shall impose a
sentence of the kind, and within the range . . . unless the court finds that there exists an
aggravating . . . circumstance . . . not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). Nowhere in its
articulation of reasons does the district court explain how the Guidelines did not adequately
consider an “aggravating circumstance.” Brown was convicted for illegally possessing a
machine gun that was not registered to him, so the guidelines already considered Brown’s
conversion of a registered handgun into a not-registered machine gun.
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(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines
(5) any pertinent policy statement
...
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
But again, it is not clear that the district court considered all of these, and that
even if it did, it weighed them correctly.
The nature of the offense and the history and characteristics of the
defendant. Brown pled to illegally possessing a machine gun and an
unregistered gun—the machine gun being his registered handgun that had a
conversion device, which is what rendered it unregistered. Plainly, Brown
was sentenced for having a conversion device on his legally registered gun.
The gun with the switch was found nearly 100 feet away from Brown
in a car that was possessed by Ratcliff, his stepfather, and occupied by Ratcliff
and Sellers. Ratcliff, had several arrests, including for unlawful possession of
a firearm by a felon, theft of a firearm, possession with intent to distribute
while carrying a weapon, multiple burglaries, domestic abuse aggravated
assault, and had been convicted of drug possession, theft, and fleeing from an
officer.
Brown had no criminal history and not a single other arrest. He was a
ROTC participant in high school and at times juggled multiple jobs on top of
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that. After graduating, Brown attended college before ultimately dropping
out because of a progressive condition that causes his heart to fail to
sufficiently pump enough blood. Even with treatment, Brown had about six
years to live.
The need for the sentence imposed. The district court wanted to “send a
message to other people in Shreveport” and noted Brown was “clearly a
person who is dangerous to the community in Shreveport.” This led the
court to deviate upward significantly from the sentencing guidelines. This
even though at the time of his arrest, Brown lived nearly 200 miles away from
Shreveport and there was no evidence he had ever caused any harm to
anyone.
Sentencing Disparities. Ratcliff, Brown’s co-defendant, had a higher
total offense level and criminal history score, was the active offender, and
does not have a life-limiting chronic heart condition. Yet, he received a
within-Guideline sentence of fifty-seven months, without any upward variance
to “send a message to other people in Shreveport” or a note that he was
“clearly a person who is dangerous to the community in Shreveport.”
Notably, Ratcliff’s sentence has been vacated and remanded because there
was no evidence to support the district court’s finding that Ratcliff had used
the stolen gun to facilitate his illegal possession of the stolen vehicle. See
United States v. Ratcliff, No. 24-30192, 2025 WL 618105, at *3 (5th Cir. Feb.
26, 2025). As the district court relied on that “fact” to enhance Ratcliff’s
sentence under United States Sentencing Guideline § 2K2.1(b)(6)(B), id. at
*1, upon remand Ratcliff will have a lower offense level and relatedly lower
sentencing guideline range. All to say, the difference between Ratcliff and
Brown’s sentence will likely shrink even further.
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Victim Impact. Here, the PSR indicates that “[t]hese are Title 18 and
26 offenses, and there are no identifiable victims.” Accordingly,
“[r]estitution is not applicable in this case.”
The purpose of the district court's statement of reasons is to enable
the reviewing court to determine whether, as a matter of substance, the
sentencing factors in § 3553(a) support the sentence. United States v. Smith,
440 F.3d 704, 707–08 (5th Cir. 2006). But the district court’s statement did
not explicitly—if at all—consider, much less weigh, many of the facts that
touch on these relevant § 3553(a) factors. This is so despite the related
commands that a court shall consider the 3553(a)(1) factors and “at the time
of sentencing, shall state in open court the reasons for its imposition of the
particular sentence,” 18 U.S.C. § 3553(c), and the due process requirement
that “sentencing facts must be established by a preponderance of the
evidence.” Johnson, 648 F.3d at 277.
In conclusion, the district court failed to “thoroughly articulate its
reasons when it impose[d] a non-Guideline sentence.” Smith, 440 F.3d at
707–08. Absent articulated reasons to the contrary, this sentence is
substantively unreasonable, unfair, and unjust.7
_____________________
7
“In effect, the presumption [that a within-Guidelines sentence is reasonable] is
non-binding in theory but nearly ironclad in fact. Cases in which any court has vacated
sentences for ‘substantive unreasonableness’ are few and far between.” United States v.
Neba, 901 F.3d 260, 267 (5th Cir. 2018) (Jones, J., concurring). “The Sentencing
Commission reported that only one case was reversed or remanded for a ‘[g]eneral
reasonableness challenge’ in any circuit in 2017.” Id. (emphasis in original). Unfortunately,
even though there is no presumption that an above-Guidelines sentence is reasonable, there
is also lack of clarity for when the threshold of clear sentencing error is passed. I fear no
such threshold exists in practice. “The fact is, it is only the exceptionally rare case in which
this court finds an upward variance substantively unreasonable.” United States v. Hoffman,
901 F.3d 523, 565 (5th Cir. 2018), as revised (Aug. 28, 2018) (citing Gerezano-Rosales, 692
F.3d at 401 (finding a sentence substantively unreasonable after the court increased a
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Considering the totality of the circumstances, we should vacate and
remand for a more through consideration of the relevant § 3553(a) factors
based on the evidence in the record.
Accordingly, I respectfully dissent.
_____________________
Guidelines sentence it has just imposed by three years because the defendant spoke
“disrespectfully”)).
23