The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2026 Decided June 16, 2026
No. 24-3032
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES FITZGERALD HONESTY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cr-00187-1)
Howard B. Katzoff, appointed by the court, argued the
cause and filed the briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeanine Ferris
Pirro, U.S. Attorney, and Chrisellen R. Kolb and Nicholas P.
Coleman, Assistant U.S. Attorneys.
Before: PILLARD and WALKER, * Circuit Judges, and
ROGERS, Senior Circuit Judge.
*
Circuit Judge WALKER joins the court’s opinion as to all except for
Part II.A.2 of the opinion.
2
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: Appellant James Honesty
challenges his convictions upon pleading guilty to firearms and
drugs offenses on two interrelated grounds. First, he contends
that the government breached the Plea Agreement to cap its
allocution to a range under the Sentencing Guidelines by
implicitly advocating for a sentence above that range. Second,
he contends that the district court erred procedurally by relying
on erroneous factfinding and failing to explain the basis for
imposing a sentence above the Guidelines range. Appellant Br.
at 17–18. The court affirms. Upon plain error review, Honesty
has failed to show that his claimed breach of the Plea
Agreement through implicit advocacy was reasonably likely to
have affected his sentence. Further, he fails to show procedural
error by the district court.
I.
Honesty and the government entered into a Plea
Agreement that he would plead guilty to two counts of a six-
count indictment on firearms and drug charges: Count 1, felon
in possession of a firearm and ammunition, and Count 4,
possession of Phencyclidine (“PCP”) with intent to distribute. 1
1
The superseding indictment charged in separate counts: (1) felon in
possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1); (2)
possession of a controlled substance (N-Propylbutylone), 21 U.S.C.
§ 844(a); (3) possession of another controlled substance (N,N-
Dimethylpentylone), 21 U.S.C. § 844(a); (4) possession of PCP with
intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(C); (5)
possession of a firearm in furtherance of a drug trafficking offense,
18 U.S.C. § 924(c)(1)(A); and (6) possession of PCP with intent to
distribute within a thousand feet of a school zone, 21 U.S.C. § 860(a).
Superseding Indictment at 2–3 (May 11, 2023). The maximum term
of imprisonment for Count 1 was fifteen years, 18 U.S.C.
3
Honesty acknowledged that the Statement of Offense “fairly
and accurately describes” his offenses, and the Plea Agreement
stated that the estimated Sentencing Guidelines range was 92
to 115 months, based on Honesty’s criminal history. Plea
Agreement (“PA”) at 2 (Aug. 15, 2023) (attaching Statement
of Offense). 2 The government agreed to dismiss the remaining
counts and not to prosecute Honesty for other conduct
described in the Statement of Offense. The government also
agreed “to cap its allocution to the top of the applicable
[S]entencing [G]uidelines range, as ultimately determined by
the Court.” PA at 2, 5. Both the defense and the government
could “describe fully, both orally and in writing, to the
sentencing judge, the nature and seriousness of [Honesty’s]
misconduct, including any misconduct not described in the
charges to which [he] is pleading guilty, to inform the
§§ 922(g)(1), 924(a)(2), and for Count 4, twenty years, 21 U.S.C.
§ 841(a)(1) and (b)(1)(C).
2
According to the Statement of Offense, police officers were on
patrol in the Southeast quadrant of Washington, D.C., on the evening
of May 23, 2022, when they received a lookout call for a Black male
with a slim build and dreadlocks wearing a white shirt and blue jeans
who “reportedly brandished a gun to the 9-1-1 caller’s significant
other.” Statement at 3. The officers spotted Honesty, who matched
the description. He fled when they approached to speak with him.
In the ensuing chase, Honesty took a firearm from his satchel and
dropped it in front of the officers as he turned a corner. He continued
running and dropped the satchel shortly before the officers caught up
to him. The firearm was a nine-millimeter semi-automatic handgun
with one round in the chamber and twenty-one rounds in a magazine.
The satchel contained three vials of PCP, thirty-two grams of N,N-
Dimethylpentylone (Schedule I controlled substance), fifty-eight
grams of N-Propylbutylone (Schedule I controlled substance), a
small spoon with white powder residue, a large quantity of small
Ziploc bags, a scale, and cash. “At the time [Honesty] possessed the
[PCP], he intended to distribute it.” Id. at 4.
4
presentence report writer and the Court of any relevant facts, to
dispute any factual inaccuracies in the presentence report, and
to contest any matters not provided for in this Agreement.” Id.
at 5. Further, if the district court considered “any Sentencing
Guidelines adjustments, departures, or calculations different
from those agreed to and/or estimated in this Agreement” or “a
sentence outside the Guidelines range based upon the general
sentencing factors listed in 18 U.S.C. § 3553(a),” then each
party had “the right to answer any related inquiries from the
Court” and to “allocute for a sentence within the Guidelines
range, as ultimately determined by the Court, even if the
Guidelines range ultimately determined by the Court is
different from the Estimated Guidelines Range calculated
herein.” Id.
A presentence report prepared by the Probation Office for
the district court also identified Honesty’s Guidelines range as
92 to 115 months’ imprisonment and stated the Office had “not
identified any factors that would warrant a variance from the
applicable [G]uideline range based on the factors outlined in
[18 U.S.C.] § 3553(a).” Presentence Report at 23, 28 (D.D.C.
Nov. 14, 2023) (“PSR 1”). Honesty, through trial counsel,
stated in a sentencing memorandum that his criminal history
score had been incorrectly calculated in PSR 1, mistakenly
including three points for a 2009 conviction that “times out”
under Guidelines § 4A1.2(e) as well as an incorrect “status
point,” and that the correct Guidelines sentencing range was 63
to 78 months. Honesty Sent. Mem. at 5 (Jan. 19, 2024). Trial
counsel requested a sentence of 72 months’ imprisonment and
five years’ supervised release in view of Honesty’s traumatic
youth, his need for drug treatment, and his acceptance of
responsibility, submitting two expert reports and character
letters from family and friends.
5
The government’s sentencing memorandum requested that
Honesty be sentenced at the top of the correctly calculated
Guidelines range: 96 months’ imprisonment followed by three
years of supervised release. Gov’t. Sent. Mem. at 1 (Jan. 19,
2024). The government acknowledged the 2009 conviction
had been incorrectly included in the Guidelines range
calculation, but Honesty had failed to account for his guilty
plea in October 2023, in a pending case in Maryland, and the
correct sentencing range was 77 to 96 months. Id. at 11–14.
Tracking the Section 3553(a) factors, the government stated its
recommended sentence “reflects the serious nature of this
offense, the repetitive and dangerous history of Defendant
Honesty’s other criminal offenses, and provides adequate
deterrence to others in the community given the proliferation
of firearms in our city.” Id. at 16. Noting that the Guidelines
were advisory, the district court must consider the Section
3553(a) factors, and sentencing variances could be based on
factors not fully taken into account by the Guidelines, id. at 14–
15, the government recounted that this was Honesty’s fourth
conviction for using or possessing a gun and that “[h]is 18-
month sentence for the Assault with a Dangerous Weapon and
12 months sentence for Carrying a Pistol Without a License in
2009 . . . did nothing to stop [] Honesty from possessing and
using guns again,” id. at 18. The government also recounted
the circumstances of the charges to which Honesty had pleaded
guilty, including that he had “brandished” the firearm during
an altercation, 3 intended to distribute the drugs, and dropped
the firearm and drugs close to a school, id. at 16–19. The
government concluded “Honesty’s history and characteristics
justify a lengthy term of imprisonment,” id. at 19, and “96
3
The government cited audio recordings of two 9-1-1 calls to the
police, in which one caller said that Honesty had “pulled out a gun
on [her] boyfriend and threatened to kill him.” Gov’t. Sent. Mem. at
18 (Exhibits 1 & 2).
6
months, which is at the top of the relevant range, is necessary
and mandated by the 3553 factors,” id. at 20.
In recounting Honesty’s criminal history, the government
stated at page 19 (emphasis added):
Defendant Honesty’s eight criminal history points
[do] not capture [the] totality of his criminal
behavior. As discussed above, the defendant’s 2009
conviction [for carrying a pistol without a license] is
not scored as two points because of the lapse of time,
the majority of which the defendant was incarcerated
because of the 2012 carjacking. In addition, the
defendant’s guilty plea in 22-cr-0049, the pending
Maryland case, is scored as one point, instead of three
points, in his criminal history despite the fact that the
offense occurred before his arrest in this
case. Incorporating those points into Defendant
Honesty’s criminal history score would result [in] a
Guideline Range of 92 to 115 months, which was the
[G]uideline range contemplated in the plea
agreement.
By minute order of January 24, 2024, the district court
stated it was considering imposing an upward departure and/or
variance in view of information that Honesty’s criminal history
category “substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes,” U.S.S.G. § 4A1.3(a)(1), 4
and invited comment by the parties.
4
At the time, U.S.S.G. § 4A1.3(a)(1) permitted upward departures
where “reliable information indicates that the defendant’s criminal
history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will
commit other crimes.” As revised, effective November 1, 2025,
7
At the sentencing hearing, the district court, adopting
findings in the revised PSR (Feb. 28, 2024), confirmed with
both parties that the applicable Sentencing Guidelines range
was 77 to 96 months’ imprisonment on each count, to run
concurrently, followed by concurrent terms of no more than
three years’ supervised release on Count 1 and at least three
years on Count 4. Sent. Hg. Tr. at 5–8 (Mar. 11, 2024). The
government prosecutor proceeded to review Honesty’s
“lengthy criminal history,” including his recent guilty plea in a
pending case in Maryland, and the circumstances of the two
offenses on which he was to be sentenced. Id. at 11–15. In
response to the district court’s inquiry about an upward
departure, the prosecutor stated, at id. 15–16 (emphasis added):
AUSA: [I]n our plea agreement, we did cap our
allocution at the top of the applicable [G]uidelines, as
determined at the time of sentencing, so I could not
stand here and advocate for an upward departure or
upward variance. But I will say that when we did
initially calculate his criminal history [G]uidelines,
because the criminal history was so lengthy, we
actually did think that the [G]uidelines for him was 92
to 115 months.
THE COURT: That was actually the range that the
parties agreed at the time of the plea was reasonable,
as I recall.
“most departures” — including under U.S.S.G. § 4A1.3(a)(1) —
have been “delete[d]” from the Guidelines Manual. See U.S.S.C.,
Amendments, at 79–80 (April 30, 2025), https://perma.cc/ZPW8-
LEBF. The Sentencing Commission stated these revisions were
partly to align to practice where courts have shifted from departures
to variances based on the factors in 18 U.S.C. § 3553(a). Id. at 80.
8
AUSA: That’s correct, your Honor. And . . . we did
mention this in our sentencing memo * * * * where
we stated that [] Honesty’s criminal history points do
not really capture the totality of his criminal history
behavior. And we kind of outlined why that 2009
CPWL conviction aged out . . . , as well as his guilty
plea in the Maryland case that I just discussed
recently. * * * * But we are asking for a top-of-the-
[G]uidelines sentence at 96 months on both counts, to
run concurrent, followed by three years of supervised
release.
Defense counsel responded, in turn, that the 9-1-1 call did
not establish by a preponderance of evidence Honesty had
“brandished” the firearm, id. at 17–18, and that Honesty’s
criminal history score had been correctly recalculated at the 77
to 96 months sentencing range, id. at 19. An upward departure
was unwarranted, defense counsel argued, inasmuch as PSR 1
and the Plea Agreement had relied on an incorrectly calculated
higher criminal history score, and recounted the reasons for a
lower end Guidelines sentence set forth in Honesty’s
sentencing memorandum. Id. at 19–27.
The district court agreed an upward departure was
unwarranted under U.S.S.G. § 4A1.3(a)(1), supra n.4, but
imposed an upward variance of 115 months’ imprisonment. Id.
at 38, 44–45. The court gave four reasons: (1) Honesty’s
lengthy history of gun and drug violations made him “a de facto
career offender, although not technically one under the
[G]uidelines”; (2) he “brandished” the gun, as demonstrated by
the statement of one of the 9-1-1 calls that constituted an
“excited utterance”; (3) he abandoned the gun close to an
elementary school; and (4) he possessed three different
dangerous drugs. Id. at 44–45. Honesty appeals.
9
II.
The Supreme Court has held “that when a plea rests in any
significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Santobello v.
New York, 404 U.S. 257, 262 (1971). A claim that the
government breached a plea agreement is reviewed only for
plain error if, as here, see Appellant Br. at 19, the objection was
not preserved. See Puckett v. United States, 556 U.S. 129, 134–
36 (2009); FED. R. CRIM. P. 52(b). Reversal and remand for
resentencing is then warranted only if there is “legal error,” that
is “clear or obvious, rather than subject to reasonable dispute,”
and the error “affected the appellant’s substantial rights, which
in the ordinary case means he must demonstrate that it affected
the outcome of the district court proceedings,” and upon
satisfying these three prongs, “the court of appeals has the
discretion to remedy the error — discretion which ought to be
exercised only if the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Puckett,
556 U.S. at 135 (emphasis in original) (citations and internal
quotation marks omitted).
10
A.
Honesty sees a clear breach of the Plea Agreement by the
government in its sentencing memorandum and during its
allocution at the sentencing hearing. Appellant Br. at 19–25.
The sentencing memorandum, he contends, implicitly
advocated an above-Guidelines sentence by (1) emphasizing
that the Guidelines are advisory and that it was not error for the
district court to enter sentencing variances; (2) asserting that he
had “brandished” the firearm on the basis of “uncharged,
disputed evidence,” and highlighting the dangers of gun
violence generally; (3) using phraseology that conveyed the
impression he deserved an above-Guidelines sentence, such as
that his “history and characteristics justify a lengthy term of
incarceration,” Gov’t. Sent. Mem. at 19; and (4) stating that his
criminal history score “does not capture [the] totality of his
criminal behavior,” id. Additionally, Honesty contends, the
government implicitly advocated for a variance in its allocution
at sentencing by repeating that he had “brandished” the firearm
and that his criminal history score was under-representative.
Appellant Br. at 23–25. “In this way, the government’s
allocution advanced the notion that rather than his commission
of the possessory offenses to which he had pleaded guilty, []
Honesty had actually committed more serious crimes involving
a threat to commit murder and should be sentenced
accordingly.” Appellant Br. at 25.
Honesty relies on precedent in which defendants have
argued that the government implicitly breached their plea
agreements. See Appellant Br. at 25–26 (collecting cases).
“[B]ecause the judicial system has sanctioned the plea
bargaining process,” Honesty observes, “the courts strictly
enforce the government’s obligations under a plea agreement.”
Id. at 26. The federal circuit courts of appeals have recognized
that “because a defendant who enters into a plea agreement
11
waives a panoply of constitutional rights,” the government’s
sentencing advocacy must conform to “the most meticulous
standards of both promise and performance.” United States v.
Mojica-Ramos, 103 F.4th 844, 850 (lst Cir. 2024) (citation,
alteration, and internal quotation marks omitted); see, e.g., In
re Altro, 180 F.3d 372, 375 (2d Cir. 1999); United States v.
Ligon, 937 F.3d 714, 718 (6th Cir. 2019); United States v.
Atkinson, 259 F.3d 648, 654 (7th Cir. 2001); United States v.
Hunter, 835 F.3d 1320, 1330–31 (11th Cir. 2016).
Those standards prohibit “not only explicit repudiation of
the government’s assurances, but must in the interests of
fairness be read to forbid end-runs around them.” United States
v. Murray, 897 F.3d 298, 309–310 (D.C. Cir. 2018) (quoting
United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992)).
The disingenuous conduct that Honesty sees is not unfamiliar
to the federal courts of appeals. See, e.g., United States v.
Farias-Contreras, 104 F.4th 22, 28–29 (9th Cir. 2024) (en
banc); Mojica-Ramos, 103 F.4th at 850 (1st Cir.); United States
v. Bowler, 585 F.2d 851, 855 (7th Cir. 1978). On occasion, in
the wake of such end runs, the government has conceded error.
See, e.g., United States v. Maldonado-Maldonado, 134 F.4th
32, 37 (1st Cir. 2025); United States v. King-Gore, 875 F.3d
1141, 1145 (D.C. Cir. 2017). This court has long cautioned, in
addressing a collateral attack on a sentence, that the
government may not agree to allocute for a particular sentence
and then implicitly advocate for a higher sentence “in all but
name.” United States v. Pollard, 959 F.2d 1011, 1024 (D.C.
Cir. 1992), cert. denied, 506 U.S. 915 (1992). Such an
agreement does not prohibit the government from pressing its
case “with considerable force” so long as that advocacy is “just
as consistent with a request” that is permitted under the plea
agreement. Id. In accord with its allocution commitment under
a plea agreement, the government has a “concurrent and
equally solemn obligation to provide relevant information to
12
the sentencing court.” United States v. Almonte-Nunez, 771
F.3d 84, 90 (1st Cir. 2014); see United States v. Ahn, 231 F.3d
26, 38 (D.C. Cir. 2000).
To determine whether the government engaged in
impermissible tactics and breached the Plea Agreement, the
court reads the words of a plea agreement in their context and
considers the totality of the circumstances. United States v.
Munafo, 123 F.4th 1373, 1379–81 (D.C. Cir. 2024); Almonte-
Nunez, 771 F.3d at 91 (citations omitted).
1.
The Plea Agreement permitted the government “to
describe fully, both orally and in writing, to the sentencing
judge the nature and seriousness of [Honesty’s] misconduct,
including any misconduct not described in the charges to which
[he] is pleading guilty,” “to inform the presentence report
writer and the Court of any relevant facts,” and “to allocute for
a sentence within the Guidelines range.” PA at 5. Hence, the
government’s references to Honesty’s “brandishing” of the
firearm and his past criminal conduct were within the
permissible scope to the extent this advocacy was “just as
consistent with a request” for a sentence at the upper end of the
Guideline range. Pollard, 959 F.2d at 1024. Those
submissions were consistent with “[t]he government’s
obligation to furnish relevant information to the sentencing
court” and its “corollary obligation to honor commitments
made under a plea agreement.” United States v. Saxena, 229
F.3d 1, 6 (1st Cir. 2000).
Arguably, when viewed as part of the government’s
sentencing memorandum, see Munafo, 123 F.4th at 1379, the
government’s statements that Honesty’s criminal history score
was under-representative might be understood as advocacy
13
“consistent with a request for a long prison sentence that would
be short of [115 months, namely, 96 months],” Pollard, 959
F.2d at 1024; cf. Almonte-Nunez, 771 F.3d at 90–91. That is,
those statements might be characterized as vigorous advocacy
on behalf of a sentence at the top of the applicable Guidelines
range by suggesting that a 96-month sentence was reasonable
because the higher sentencing range in the Plea Agreement was
also reasonable. And the government reiterated — 7 times over
the course of its sentencing memorandum and allocution —
that it was recommending a sentence at the top of the
Guidelines range: 96 months. Appellee Br. at 21–22 (citing
Gov’t. Sent. Mem. at 1, 16, 20–21; Sent. Hg. Tr. at 15–17).
2.
Yet, the government did more than merely approach the
limits of permissible advocacy; it crossed the line when it stated
in its sentencing memorandum that Honesty’s criminal history
score did not “capture [the] totality of his criminal behavior,” a
phrase that tracked the text of U.S.S.G. § 4A1.3(a)(1) regarding
upward departures, supra n.4, and when it referred to other
offenses that had been correctly excluded from the accurate
Guidelines calculation but if considered “would result [in] a
Guideline Range of 92 to 115 months.” Gov’t. Sent. Mem. at
19, quoted supra. From the government’s perspective, the
quoted paragraph helps to explain why it was recommending a
lengthy sentence at the top of the Guidelines range when
Honesty was seeking a sentence at the lower end of that range.
See Appellee Br. at 28–29. Maybe so, but that does not cure
the overreaching performance contrary to the government’s
promise in the Plea Agreement to cap its allocution to the
Guidelines range.
The paragraph at 19, as Honesty contends, contravenes the
Plea Agreement by all but explicitly suggesting a basis for a
14
variance and a specific above-Guidelines range other than the
Guidelines range that the parties had agreed applied and, per
the Plea Agreement, constrained the government’s advocacy at
sentencing. Appellant Br. at 22. That is, the paragraph did
more than just state the government’s position for a sentence
within the Sentencing Guidelines range “with considerable
force”; it “introduced . . . implicitly the notion” of varying
upward to the 92 to 115 months range, using “words that could
be thought synonymous” with such a variance. Pollard, 959
F.2d at 1024. The prosecutor’s allocution at sentencing, in
response to the sentencing judge’s inquiry about a departure
exacerbated the seriousness of the government’s failure to keep
its promise to Honesty, repeating that “Honesty’s criminal
history points do not really capture the totality of his criminal
history behavior,” Sent. Hg. Tr. at 16 (emphasis added), and
underscoring for the sentencing judge that “long prison terms
and supervised release won’t stop him from possessing
firearms or dangerous drugs here,” id.; see id. at 17. Indeed,
the district court’s inquiry about an upward departure or
variance appears to have been prompted by the government’s
initial erroneous Sentencing Guidelines calculation, see Sent.
Hg. Tr. at 44: 18–19, to which the government adverted in its
sentencing memorandum at 19.
By allocuting for a sentence of 96 months under the
Guidelines, as correctly calculated, while implicitly advocating
for a sentence of 115 months as more accurately capturing
Honesty’s criminal activity, the government breached the Plea
Agreement, “transgress[ing] the agreed norm,” Pollard, 959
F.2d at 1024. The government’s duty of candor to the court did
not permit it to characterize Honesty’s criminal history
category under the 77 to 96 months Guidelines range as
understating his true criminal history. By specifying atypical
circumstances and implicitly asserting that it favored an above-
Guidelines sentence, the government violated its commitment
15
in the Plea Agreement to stand behind the parties’ agreed upon
Guidelines sentencing range. That failure is not avoided by a
rote disclaimer: “I don’t think I could advocate for that under
the plea agreement.” Sent. Hg. Tr. 16. “As a matter of
precedent, . . . it is important that the government be required
to carefully and fully live up to any plea agreement it has seen
fit to enter into.” Bowler, 585 F.2d at 856 (Harlington Wood,
Jr., J., concurring). The government’s commitment regarding
the sentence for which it will advocate is likely to be the plea
term of greatest importance to a defendant deciding whether to
plead guilty and thereby waive “a panoply” of constitutional
rights. Mojica-Ramos, 103 F.4th at 850 (citation omitted). Its
centrality makes it appropriate to require the government’s
advocacy regarding its agreed sentencing recommendation to
conform to “the most meticulous standards of promise and
performance.” Id. (citation omitted).
B.
On plain error review, Honesty must show prejudice. See
Puckett, 123 F.4th at 135. The burden to show “a reasonable
likelihood that the [breach] affected his sentence,” United
States v. Bigley, 786 F.3d 11, 15 (D.C. Cir. 2015) (internal
quotation marks omitted), is “somewhat more relaxed in the
area of sentencing than it is for trial errors,” King-Gore, 875
F.3d at 1145–46 (quoting In re Sealed Case, 573 F.3d 844, 852
(D.C. Cir. 2009); and citing United States v Saro, 24 F.3d 283,
287–88 (D.C. Cir. 1994)). Still, Honesty has not made that
showing.
The district court gave four reasons for imposing the
upward variance in discussing the sentencing rationale. Sent.
Hg. Tr. at 32–45. Three reasons involved the particular
circumstances of the offenses to which Honesty pled guilty:
Honesty had “brandished the weapon and did not merely
16
possess it,” he had “abandoned the gun feet from an elementary
school,” and he had “possessed three different dangerous
drugs,” including PCP, which posed “an extreme danger to the
residents of D.C.” Id. at 44–45. These reasons for an upward
variance were unrelated to the government’s statements that
Honesty’s criminal history did not fully account for his prior
criminal conduct.
The fourth reason for imposing an upward variance
involved Honesty’s criminal history, including his “lengthy
history of gun and drug violations” as set forth in PSR 1 (and
as revised Feb. 28, 2024). The district court was “struck not
only by the number of offenses, but by their severity and that
most of them involve weapons.” Id. at 37. In addition,
Honesty’s “numerous disciplinary infractions while
incarcerated and while on supervised release” caused the
district court to have “no confidence that [Honesty] will
comply with the law or release conditions” if given a shorter
sentence. Id. at 37–38.
Thus, the district court judge provided a series of reasons
for varying upward that did not involve whether Honesty’s
criminal history score “substantially under-represents the
seriousness of his criminal history,” U.S.S.G. § 4A1.3(a)(1).
Honesty fails, therefore, to show that absent the government’s
sentencing advocacy there is a “reasonable likelihood” that the
claimed breach of the Plea Agreement by the government
would have affected his sentence. King-Gore, 875 F.3d at
1147.
III.
This court reviews sentencing “for abuse of discretion
under a two-step analysis,” which first examines whether the
district court committed “significant procedural error.” United
17
States v. Brevard, 18 F.4th 722, 726 (D.C. Cir. 2021) (citations
omitted). Procedural errors include “selecting a sentence based
on clearly erroneous facts” or “failing to adequately explain the
chosen sentence.” Gall v. United States, 552 U.S. 38, 51
(2007). “Only if there is no such error” does the court proceed
to the second step to consider “the overall reasonableness of
the sentence in light of the sentencing factors listed in 18
U.S.C. § 3553(a).” United States v. James Welden Brown, 808
F.3d 865, 870 (D.C. Cir. 2015); see Gall, 552 U.S. at 49–51.
“There is no preservation requirement for reasonableness
review,” but unpreserved procedural claims are reviewed for
plain error. James Welden Brown, 808 F.3d at 870.
Neither of Honesty’s procedural challenges demonstrate
that the district court erred. Appellant Br. at 30–47.
A.
Honesty challenges the four reasons given by the district
court for imposing an upward variance as unsupported by the
record. Appellant Br. at 33–43. Trial counsel only objected to
the upward variance “on the grounds that the allegation that
Mr. Honesty brandished a gun rested on insufficient evidence
and that defendant’s criminal history score did not
underrepresent the seriousness of his criminal record.” Id. at
32 (citing Sent. Hg. Tr. at 17–20). To determine whether the
district court abused its discretion, this court begins by
reviewing Honesty’s procedural challenge to the gun
“brandishing” and criminal history rulings for clear error.
Review of the school zone and drug possession rulings is for
plain error. See Gall, 552 U.S. at 51. Honesty fails to show
either.
First, the finding that Honesty “brandished” a weapon was
supported by the audio recording of the 9-1-1 caller’s statement
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that Honesty had “pulled out a pistol” and “threatened to kill”
her boyfriend. Gov’t. Sent. Mem. at 3. The district court judge
stated that the audio recording revealed the caller was
“breathing hard,” with “commotion and raised voices in the
background.” Sent. Hg. Tr. at 32. Because the caller was also
“describing a very unsettling event that apparently took place
just moments before,” id., the district court treated the
statement as an excited utterance. See United States v.
Alexander, 331 F.3d 116, 123 (D.C. Cir. 2003); FED. R. EVID.
803(2). Usually, because “excitement suspends the declarant’s
powers of reflection and fabrication,” the statement is less
likely to “be influenced by self interest and therefore rendered
unreliable.” Alexander, 331 F.3d at 122 (quoting United States
v. Tishon Brown, 254 F.3d 454, 458 (3d Cir. 2001)). The caller
provided later-corroborated details about Honesty’s physical
description and location. Therefore, the district court did not
clearly err in finding Honesty was “brandishing” a firearm,
much less abuse its discretion in viewing the 9-1-1 context and
Honesty’s gun possession to provide sufficient evidence of
reliability, see United States v. Leyva, 916 F.3d 14, 25 (D.C.
Cir. 2019), or err as a matter of law in applying a
preponderance of evidence standard to find that Honesty
brandished his firearm, see United States v Fahnbulleh, 752
F.3d 470, 481 (D.C. Cir. 2014).
Second, it is “not error for a district court to enter
sentencing ‘variances based on factors already taken into
account by the Advisory Guidelines’” where “the Guidelines
do not fully account for those factors.” United States v.
Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014) (quoting United
States v. Richart, 662 F.3d 1037, 1052 (8th Cir. 2007)). The
district court found that Honesty’s prior criminal history was
not fully captured by the Guidelines calculation “for largely
technical reasons” and that Honesty was a “de facto career
offender” even if he did not meet the criteria under the
19
Guidelines. Sent. Hg. Tr. at 39, 44. For instance, a 2021 drug
and firearm conviction for which Honesty had yet to be
sentenced would have resulted in a longer Guidelines range had
he already been sentenced. Id. at 38–39.
Third, Honesty was not charged with possessing a firearm
near a school zone in violation of 18 U.S.C. § 922(q)(2)(A),
and he maintains that the record does not support a finding that
he knew he was within a school zone or the gun was likely to
be recovered by a child (as opposed to the police who were
pursuing him). Appellant Br. at 39–40. Even assuming
Honesty had no knowledge of the school and the gun was likely
to be promptly recovered by the police after he dropped it, there
was no obvious error by the district court in finding that he
endangered children and others nearby when he discarded a
loaded firearm and magazine. Sent. Hg. Tr. at 35; supra n.2.
Fourth, Honesty’s plea to possessing PCP with intent to
distribute did not mean that all relevant aspects of his drug-
related conduct were “already factored into” the Guidelines
calculation of his sentencing range. Appellant Br. at 40–41.
Honesty possessed two other Schedule I drugs in large
quantities, Sent. Hg. Tr. at 36, which indicated an intent to
distribute them, see, e.g., United States v. Dunn, 846 F.2d 761,
764 (D.C. Cir. 1988). The district court characterized PCP as
“incredibly dangerous,” Sent. Hg. Tr. at 36, and a Guidelines
calculation does not always account for such dangerousness,
see United States v. Iracks, 106 F.4th 61, 68 (D.C. Cir. 2024).
B.
Honesty’s unpreserved challenge that the district court
failed to differentiate him “from other defendants included in
the same 77–96 months [G]uidelines range,” Appellant Br. at
32, 44, fares no better. “A judge imposing an above-Guidelines
20
sentence must offer in court, and in writing, a ‘specific reason’
why the defendant’s case calls for a more severe sentence than
other cases falling within the same Guidelines categories.”
United States v. James Welden Brown, 857 F.3d 403, 405 (D.C.
Cir. 2017) (quoting James Welden Brown, 808 F.3d at 866). In
imposing an upward variance, the district court gave four
reasons for the variance. See Part I, supra. It did not recite the
Section 3553(a) factors without individualized application to
Honesty, James Welden Brown, 808 F.3d at 874, or rely only
upon “broad observations” that “would apply equally to any
defendant” convicted of these offenses and within the same
Guidelines range, United States v. Akhigbe, 642 F.3d 1078,
1086 (D.C. Cir. 2011); see United States v. Dawayne Brown,
892 F.3d 385, 406 (D.C. Cir. 2018). Instead, it “gave several
specific and legitimate grounds” tied to Honesty’s criminal
conduct for imposing the above-Guidelines sentence. James
Welden Brown, 857 F.3d at 407.
Accordingly, the court affirms the judgment of conviction.