Background
Jarmar Butler pleaded guilty to possessing a firearm or ammunition as a convicted felon. The district court varied upward from the advisory Sentencing Guidelines range and imposed a 92-month prison sentence.
On appeal, Butler argued that the district court plainly erred by assigning a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(B), contending that the record did not establish that he possessed a semiautomatic firearm capable of accepting a large-capacity magazine. He also challenged the upward variance as substantively unreasonable.
Butler separately moved to file a supplemental brief raising, for the first time, an argument that the district court improperly deferred to Guidelines commentary when applying an adjustment under U.S.S.G. § 2K2.1(b)(6)(B).
The Court’s Holding
The Fifth Circuit affirmed. Assuming without deciding that applying § 2K2.1(a)(4)(B) was a clear or obvious error, the court held that Butler failed to show that the alleged error affected his substantial rights. The district court had explained its reliance on the 18 U.S.C. § 3553(a) factors and stated that the 92-month sentence was appropriate regardless of the Guidelines calculation.
The court also held that the sentence was not substantively unreasonable. The record showed that the district court made an individualized assessment, considered aggravating and mitigating circumstances, and permissibly concluded that Butler’s criminal history was underrepresented and that his prior and relevant conduct warranted an above-Guidelines sentence. The record did not support Butler’s claim that the variance rested on a finding that his firearm could accept a large-capacity magazine.
Finally, the Fifth Circuit denied Butler’s motion to file a supplemental brief. Because he had not raised the proposed Guidelines-commentary argument in his opening brief and had not shown extraordinary circumstances, the argument was waived.
Key Takeaways
- An assumed Guidelines error does not warrant relief under plain-error review when the defendant cannot show a reasonable probability of a different sentence.
- A district court’s statement that the same sentence is proper regardless of the Guidelines calculation can demonstrate that the sentence rests on independent § 3553(a) considerations.
- An upward variance may account for underrepresented criminal history and relevant conduct when supported by an individualized assessment of the sentencing factors.
- An appellant generally cannot introduce a new argument through a supplemental brief without showing extraordinary circumstances.
Why It Matters
The decision illustrates the difficulty of obtaining resentencing under plain-error review when the district court clearly identifies independent reasons for its chosen sentence. A well-explained alternative sentencing determination may prevent an assumed Guidelines mistake from affecting the judgment.
The opinion also reinforces two recurring appellate principles: substantial deference applies to a district court’s individualized upward variance, and issues omitted from an appellant’s opening brief generally cannot be added later through supplemental briefing.