USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 1 of 40

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4207

UNITED STATES OF AMERICA,

Appellee,

v.

TYZHEEM KWAZHON NIXON,

Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, District Judge. (7:21-cr-00104-D-1)

Argued: October 31, 2024 Decided: March 10, 2025

Before GREGORY, WYNN, and HARRIS, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge Gregory wrote the opinion, in which Judge Wynn joined. Judge Harris wrote a dissenting opinion.

ARGUED: Sean Paul Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North Carolina, for Appellant. Karen Kiley Haughton, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 2 of 40

GREGORY, Circuit Judge:

Tyzeem Kwazhon Nixon pleaded guilty to one count of being a felon in possession

of a firearm, in violation of

(g)(1) and 924. While incarcerated and

awaiting sentencing, he committed several acts of violence, including multiple stabbings.

The district court sentenced Nixon to more than double the Sentencing Guidelines range

for his felon in possession charge, relying almost entirely on Nixon’s violent acts while

awaiting sentencing to justify the upward departure. The court below also disregarded a

report from an unrebutted, qualified medical expert that found that Nixon’s violent conduct

was the result of his mental health condition and that, if treated, Nixon would pose little

continued threat to society.

Our Framers were skeptical of the government’s commitment to the procedural

rights of the accused––and rightly so. As such, they placed in our Constitution certain

inalienable guarantees for criminal defendants, chief among them the right to a trial by a

fair and impartial jury. The case before us involves a means to circumvent these

constitutional rights through the sentencing process, as Nixon’s sentence was more than

doubled based on unrelated, subsequent conduct that could have been––but was not––

charged separately.

On review, we find that the district court’s sentence in this case was procedurally

unreasonable. The district court improperly relied on dissimilar conduct in departing to a

higher criminal history category and failed to give proper consideration to intervening

categories and offense levels, as required by the Sentencing Guidelines. We also find that

the district court’s rejection of expert testimony, without any counterevidence or basis for

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doing so, was clearly erroneous. Lastly, we find that the procedural errors in this case were

not harmless, as Nixon’s sentence of more than twice the proper Guidelines range is

unjustified by the totality of the circumstances in this case. We therefore vacate the

sentence and remand for resentencing in accordance with this opinion.

I.

Nixon was born in 1995 in Wilmington, North Carolina. J.A. 109. With his father

in and out of prison, he and his two siblings were essentially raised by a single mother,

who was only seventeen when she gave birth to Nixon.

Nixon described the north side

of Wilmington as a “rough and violent neighborhood,” and recalled moving several times

during childhood.

Nixon spoke highly of his mother’s attempts to care for him and his

siblings, but Child Protective Services conducted several investigations of that care

throughout his childhood. All three investigations involved allegations of physical abuse

of Nixon. J.A. 118–32.

Nixon’s early education was interrupted frequently, both due to his frequent moves

and the development of mental health issues. He was placed in “Behaviorally and

Emotionally Disturbed classes” in the fourth and fifth grades, J.A. 110, and reported

feelings of depression, anxiety, anger, and sadness from a young age,

He was diagnosed

with Attention-Deficit/Hyperactivity Disorder (“ADHD”) and began using alcohol and

other drugs to “cope with the stupid stuff that was happening.”

This included using

marijuana from age 10, and Phencyclidine (“PCP”) at age 14.

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Nixon first encountered the criminal justice system at fourteen, spending roughly a

year and a half in a youth detention center before being released at the age of seventeen.

J.A. 111. He has since been in and out of incarceration. Nixon reported spending four

months in solitary confinement as a teenager, with his longest period as an adult being eight

continuous months. J.A. 95. Nixon also witnessed significant violence while in custody,

including seeing an inmate hang himself.

At the same time Nixon was first incarcerated, he began receiving a variety of

mental health medications. J.A. 110 (“I’ve been on so many . . . I can’t remember them

all.”). These medications included antidepressants and sleep aids, but not mood stabilizers.

J.A. 84; see also J.A. 134–35, 140–47. During his most recent stint in prison, Nixon sought

out additional mental health treatment, but prison officials repeatedly denied his requests

until the very end of his sentence. J.A. 136–39. For a brief period before his release, Nixon

received mood stabilizing medication and incurred zero disciplinary violations during that

time. J.A. 143; see also J.A. 140–42. However, that treatment abruptly ended upon his

release. While in custody for this case, Nixon has again sought improved mental health

treatment. J.A. 84. To this day, Nixon reports “hav[ing] a bad temper” and significant

mood swings, stating: “sometimes I am down and then sometimes I can’t sleep . . . my

mind be going really fast.” J.A. 110.

While Nixon was awaiting sentencing for the offense at issue, the Office of the

Federal Public Defender retained a psychiatrist, Dr. Reem Utterback, to evaluate Nixon

and determine a proper treatment plan. Dr. Utterback conducted a forensic psychiatric

evaluation and determined that Nixon suffers from Bipolar I disorder (severe, with

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psychotic features), Post Traumatic Stress Disorder (severe), and substance abuse disorder

(severe). J.A. 113–17. Dr. Utterback explained that “[p]eople with bipolar disorder

experience intense emotional states that typically occur during distinct periods of days to

weeks, called mood episodes” that can be either “manic” or “depressive” or mixed. J.A.

113–14. These symptoms are often misdiagnosed as ADHD in children, leading many to

not receive appropriate medications until their twenties. J.A. 114. These emotional swings

encourage “[e]xcessive involvement in activities that have a high potential for painful

consequences” and present a “significantly increased risk for violence, especially when not

treated.” J.A. 113–14. As Dr. Utterback explained,

Bipolar patients are prone to agitation that can result in impulsive aggression during manic and mixed episodes. Impulsive aggression (as opposed to premeditated aggression) is a response to a perceived threat (the fight in fight-or-flight). Mania in particular tends to trigger aggressive emotions and anger. The racing thoughts and high energy levels may leave the individual feeling angry, irritable, and frustrated. Those angry emotions in turn, can cause aggressive and inappropriate behaviors. When things don’t go the way the manic person envisions, or if someone tries to rein in a manic person, the individual may lash out. The depressed states in bipolar disorder, however, can involve intense dysphoria with agitation and irritability, which can also increase the risk of violent behavior. These behaviors are outside of the person’s control.

(emphasis added). Dr. Utterback concluded that, “[w]hile manic, [Nixon] is irrational,

irritable, belligerent, grandiose, and confrontational. A person in the throes of a manic

episode, can be aggressive, impulsive, short-sighted in his/her decision-making processes,

and does not have the rational ability to use proportional or appropriate future orientation

in their decision-making. A manic person is unable to fully comprehend the consequences

of their actions.”

As a result, she opined, “[i]t is of paramount importance that [Nixon]

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be medicated with a mood stabilizer to target the manic and depressive symptoms, instead

of being placed on antidepressants alone.” J.A. 116. In Dr. Utterback’s view, Nixon’s

violent and erratic behavior, discussed more below, can be explained by his untreated

mental health conditions. J.A. 114 (“[Nixon] incurred several infractions during

incarceration. These infractions occurred, more likely than not, as a result of his untreated

bipolar disorder.”).

II.

In December 2020, Nixon had “recently been released from the North Carolina

Department of Public Safety and was believed to have removed his ankle monitor.” J.A.

80. The United States Marshals Service (“USMS”) received information of Nixon’s

location at an apartment complex.

A deputy responded and observed Nixon in his

vehicle, reaching down into the passenger side door.

A search of the vehicle resulted

in the recovery of a loaded handgun with a large capacity magazine in the passenger side

door, and police found a small amount of marijuana on Nixon.

The firearm was found

to have belonged to a victim of a recent shooting.

Nixon stated that he found the

firearm while walking but could not recall where.

During an interview with police, he

stated that he had schizophrenia with ten personalities, and he ended the conversation.

Nixon was charged and detained pre-trial. In September 2022, Nixon pleaded guilty

without a plea agreement to one count of being a felon in possession of a firearm in

violation of

(g)(1) and 924. J.A. 79.

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The probation officer prepared a presentence report (“PSR”), which recommended

against a downward adjustment for acceptance of responsibility due to Nixon’s “continued

criminal conduct post-arraignment.” J.A. 80. The PSR outlined that conduct:

(1) on August 10, 2021, at the Pasquotank Correctional Institution in North Carolina, Nixon and several other inmates assaulted an inmate. The victim suffered approximately 18 stab wounds and was transported to the hospital;

(2) on August 25, 2022, at the Piedmont Regional Jail in Virginia, Nixon joined a fight between two inmates. Nixon assaulted one of the inmates with a sharpened instrument and stabbed him in the back of the head. The victim was taken to the hospital with approximately 19 stab wounds;

(3) on August 26, 2022, correctional officers conducted a shakedown of Nixon’s cell. Nixon refused commands and was pepper sprayed and restrained. A sharpened nail attached to a string was found in the search of Nixon’s cell;

(4) on October 17, 2022, at the Bladen County Detention Center in North Carolina, Nixon requested soap from a correctional officer, but was refused. Nixon then began screaming that he would “whip [the officer’s] female ass;” and

(5) on December 18, 2022, at the Bladen County Detention Center, Nixon engaged in a fight with another inmate. Nixon’s cellmate joined the fight, and Nixon was seen holding “a homemade weapon.” Nixon stabbed the victim multiple times. A correctional officer received minor cuts on his neck and hand when breaking up the fight.

J.A. 79–82. The probation officer calculated an offense level of 20 and a criminal history

category of III,1 yielding a sentencing range of 41 to 51 months in prison. J.A. 86.

1 The PSR calculated an initial “criminal history score of 3” but added two points because Nixon committed the “the instant offense while under a criminal justice sentence,” pursuant to U.S.S.G. § 4A1.1(d) (2021). After Nixon’s sentencing, § 4A1.1(d) (now codified at § 4A1.1(e)) was retroactively amended to (1) only award one additional point for committing an offense while on probation for a prior offense and (2) only applies if a defendant has a criminal history score of at least seven before the extra point. See United States v. Turner,

, 521 n.6 (4th Cir. 2024); U.S.S.G. § 1B1.10(d)–(e) (Continued) 7 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 8 of 40

The government moved for an upward departure, arguing that a sentence of at least

120 months was necessary to properly account for Nixon’s criminal history and to deter

his recidivism. J.A. 39–53. The government noted the above incidents and mentioned two

additional incidents occurring after the filing of the PSR, including Nixon twice more being

found with metal rods in his rectum after denying that he had a weapon on his person. J.A.

44–45. The government stated that Nixon also told a detention officer that he was going

to cut that officer’s head off one day, claimed to have blood on his shoes from stabbing

another inmate, and told an officer that “all he could get was 120 months and [the

correctional officers] . . . couldn’t do anything else to him.” Id.; J.A. 176. These incidents,

the government argued, were not included in Nixon’s criminal history score, rendering

category III inadequate. J.A. 40–42. Nixon countered with Dr. Utterback’s report, noting

that his bipolar disorder has gone untreated and that he is “not able . . . to control his

behavior and never has been, because though he has asked for the mental health treatment,

he has not until January of this year been properly diagnosed, and he has to date not been

properly treated.” J.A. 190.

The district court granted the government’s motion for an upward departure under

Sentencing Guidelines Manual § 4A1.3 and adjusted Nixon’s criminal history to category VI

and the offense level to 24. J.A. 201–02. This resulted in a new Guidelines range of 100–

125 months, subject to a statutory cap of 120 months. Id. The court listed Nixon’s felony

(providing for retroactive effect). While we express no opinion on the application of this amendment, we note that a criminal history score of three would place Nixon in category II, yielding a sentencing range of 37–46 months. 8 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 9 of 40

conviction, infractions while in state custody, supervised release violations, new criminal

conduct, and repeated violent acts while incarcerated, including those in the weeks leading

up to the sentencing hearing, as justifications for the departure. J.A. 192–200. The court

rejected Dr. Utterback’s conclusion and declined an opportunity to hear from her, instead

stating: “I don’t need to hear from her. I read her report. I don’t find it credible.” J.A. 192.

The court’s full analysis on the upward departure is below:

I think it does take cunning and planning on his part as reflected in the decision, when you’re going to the Terry Sanford Building and you’re not sure whether you’re going to go back, to put a shank in your rectum, where only a week before you had had a shakedown at the same facility and a shank had been confiscated.

And so I do think that under 4A1.3 it is appropriate to upwardly depart because I think Mr. Nixon’s likelihood of recidivism is as close to 100 percent as it can be. And, again, as the –– as the comment note section addresses, the diagnosis can’t account for everything, but the defendant is a person who is 27, and the commentary talks about cases of younger defendants who were in their early 20s or younger who may have received repeated lenient treatment.

Obviously, he hasn’t been criminally prosecuted for a lot of this activity and he could have been. But I think it would be a dereliction on my part to ignore it for purposes of analyzing his inadequate criminal history. And so I think his criminal history category of III is woefully inadequate.

Under the case law associated with upward departures, the Court having found the need to upwardly depart, has assessed the criminal history categories associated with a sentencing table and in accordance with Fourth Circuit cases, the Court is instructed to move incrementally in assessing what would ultimately be, in the Court’s view, as the appropriate criminal history category.

Obviously, I find III to be woefully inadequate, so I move to the right towards criminal history category VI. Having got to criminal history category VI and offense level 20, the Fourth Circuit has instructed that if I find that advisory guideline range to be insufficient, I’m then to move down the table to criminal history category VI.

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And having done that and evaluated these multiple instances of violence and discounted the attempted explanation by the psychiatrist, while recognizing that he has –– even if I accept what she says about his conditions, I don’t accept the causal connection for all of his criminal behavior, including the possession of a firearm and all of these multiple instances of violence and thinking about his criminal history.

And so I move at this point to offense level 24 and a criminal history category of VI, so his new advisory guideline range is 100 to 125 months. The top end of that guideline then becomes 120 by virtue of the stat max, so his new advisory guideline range is 100 to 120 months.

J.A. 200–02. Notably, the court never mentions categories IV or V for criminal history,

going straight to category VI and offense level 24 without further explanation.

The court also declined to apply a reduction for acceptance of responsibility, noting

the August 25 assault with a sharpened instrument, the October 17 verbal altercation with

a correctional officer, and the December 18 assault with a homemade weapon. J.A. 164–

66. The district court similarly refused to credit Dr. Utterback’s report in the acceptance

of responsibility analysis. J.A. 164.

The court then heard arguments as to the proper sentence within the Guidelines

range set by category VI and offense level 24. After hearing argument, the court listed the

§ 3553(a) factors and noted that it had “considered all those factors, although I won’t

mention each one individually.” J.A. 207–08. The court determined that it would impose

a sentence of 114 months, explaining as follows:

I do think there’s a tremendous need for personal incapacitation. Obviously we expect people to comply with the law while they’re out, and then we expect them to comply with the law while they’re in. And it’s –– it creates a dangerous situation if somebody’s repeatedly possessing shanks and then using them, and you certainly have done that, which is not good and is violent and is very concerning to me. And it creates a dangerous environment for you, for other detainees, other inmates, and for correctional staff.

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And so I’ve taken all those issues into account in fashioning the sentence. Won’t go as high as the Government suggested, but I do think there is a tremendous need for personal incapacitation in this case, a need for a sentence to promote respect for the law, taking into account what I consider to be, you know, lawlessly violent conduct while in custody in the –– in the jails here.

Having fully considered the entire record in the case, it’s the judgment of the Court that Tyzheem Nixon is hereby committed to the custody of the Bureau of Prisons for 114 months. In imposing this sentence, I’ve considered all the arguments associated with Mr. Nixon in his lawyer’s presentence –– the sentencing memorandum, including his mental health issues, his childhood, his desire for psychiatric treatment.

J.A. 210–11. The court went on to state that it would have imposed the same sentence as

an alternative variant sentence under § 3553(a) even without the heightened criminal

history category. J.A. 213–14. Nixon timely appealed. J.A. 61.

III.

“This Court reviews all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.” United

States v. Torres-Reyes,

, 151 (4th Cir. 2020) (cleaned up); see also Gall v.

United States,

(2007). “In applying the abuse-of-discretion standard, we

review the district court’s factual conclusions for clear error . . . and its legal conclusions

de novo.” In re Grand Jury 2021 Subpoenas,

, 250 (4th Cir. 2023).

“Reasonableness review has procedural and substantive components.” United

States v. Elboghdady,

, 233 (4th Cir. 2024) (quoting United States v.

Hargrove,

(4th Cir. 2012)). “[W]e are required to analyze procedural

reasonableness before turning to substantive reasonableness.” United States v. Provance,

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, 218 (4th Cir. 2019). “A district court commits procedural error by failing to

calculate (or improperly calculating) the Guidelines range.” United States v. Smith,

, 464 (4th Cir. 2023) (internal quotation marks omitted). We must reverse

procedural error, unless “the error was harmless.” United States v. Gomez-Jimenez,

(4th Cir. 2014), as corrected (Apr. 29, 2014) (quoting United States v. Lynn,

(4th Cir. 2010)). There is an effective presumption against harmlessness

where a district court “improperly calculate[s] a Guidelines range.” See Elboghdady, 117

F.4th at 237 (“Our holding [finding that the district court procedurally erred] is grounded

in the principle that district courts may not improperly calculate a Guidelines range”).

IV.

Nixon asserts that his sentence is procedurally unreasonable for several reasons, all

of which independently require vacatur for resentencing. First, he argues that the district

court erred by considering dissimilar conduct in violation of U.S.S.G. § 4A1.3. Next,

Nixon argues that the district court skipped steps in departing to a higher criminal history

category, going straight from category III to category VI without considering intervening

categories. Last, Nixon contends that the district court’s finding that Nixon’s conduct was

not the product of his untreated mental health condition was clearly erroneous, as the

district court completely disregarded unrebutted expert testimony to the contrary without

justification. As explained below, Nixon is correct on all fronts.2

2 Nixon also argues that the district court erred in not awarding acceptance of responsibility points for his guilty plea. Because we vacate the sentence on alternative (Continued) 12 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 13 of 40

A.

In determining that criminal history category III was inadequate, the district court

erroneously relied entirely on dissimilar, post-offense disciplinary infractions. As noted in

the PSR, this included several physical assaults and stabbings, as well as multiple instances

in which Nixon was caught in possession of homemade shanks. J.A. 79–82. The district

court stated that “it would be a dereliction on [its] part to ignore [this activity] for purposes

of analyzing [Nixon’s] inadequate criminal history.” J.A. 200. This was an abuse of

discretion.

1.

Under U.S.S.G. § 4A1.3, an upward departure may be warranted “[i]f 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[.]” U.S.S.G. § 4A1.3(a)(1). Such information “may

include [p]rior similar adult criminal conduct not resulting in a criminal conviction.”

United States v. Grubbs,

, 803–04 (4th Cir. 2009); U.S.S.G. § 4A1.3(a)(2)(E)

grounds, we do not reach Nixon’s argument on this issue. We acknowledge the broad discretion awarded to the district court on whether to award a reduction for acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n.5; United States v. Bolton,

(4th Cir. 2017). We also note that the limitation to only “similar” criminal acts, discussed herein, does not apply to the analysis of whether a defendant has accepted responsibility. See

However, the district court must be mindful to consider Nixon’s acceptance of responsibility in light of Dr. Utterback’s report, as explained below. See infra, Part IV.C; compare J.A. 164. 13 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 14 of 40

(emphasis added).3, 4 As the district court acknowledged, Nixon was not “criminally

prosecuted for a lot of th[e] activity” referenced in the PSR but “he could have been.” J.A.

200. Criminal conduct is considered similar if it is the same type of conduct as the offense

or the “relevant conduct surrounding the offense.” United States v. Dixon,

,

590–91 (4th Cir. 2003).

The limitation that an upward departure can only be based on uncharged, similar

conduct reflects a careful balance between protecting the rights of the accused and ensuring

a sentence properly reflects the likelihood of recidivism for an individual defendant. This

balance is critical, as “[t]he state poses no greater threat to individual liberty than when it

proceeds in a criminal action.” Rachel E. Barkow, Separation of Powers and the Criminal

Law,

, 995 (2006). Rather than present its case before a jury and prove

Nixon’s guilt beyond a reasonable doubt, the government can utilize sentencing—with its

lower standard of proof and lack of a jury—to punish Nixon for his uncharged

transgressions. But sentencing is not and cannot be a backdoor around the Constitution.

The Sentencing Commission, fulfilling Congress’s charge, carefully structured the upward

3 Every circuit to have reached the question of whether “prior” conduct allows consideration of conduct occurring after the offense of conviction but before sentencing has concluded that § 4A1.3(a)(2)(E) does not limit consideration of conduct to only that occurring before the offense of conviction. See United States v. Myers,

, 533– 34 (9th Cir. 1994) (collecting cases). This Court has affirmed the use of post-offense criminal conduct in an unpublished opinion, United States v. McNeal,

(4th Cir. 2010), but has never otherwise confronted the issue. We assume without deciding that consideration of post-conviction conduct is permissible under § 4A1.3(a)(2)(E). 4 District courts are permitted to consider serious dissimilar conduct that results in a conviction and sentence of more than one year. U.S.S.G. § 4A1.3(a)(2)(B). 14 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 15 of 40

departure Guidelines to ensure that, unless the uncharged conduct is related to the offense

of conviction or almost identical in nature, the government must bring an indictment and

secure a conviction before it may use that conduct in a sentence for a different crime. See

United States v. Robertson,

(10th Cir. 2009) (explaining the

Guidelines’ rationale that repeatedly engaging in the “same criminal behavior” indicates

“an increased likelihood that the offense will be repeated yet again.”). It is only in limited

circumstances that the Commission has determined that the benefits of properly capturing

the sentence for a given offense outweigh the costs to what would otherwise be a

defendant’s constitutional rights. Outside of the enumerated exceptions, this Court must

jealously guard the Commission’s chosen delicate balance. And in the case of the

similarity requirement, we have repeatedly done so.

The dissent takes a different view when it comes to the similarity requirement. It

faults the majority for inventing a rule that upward departures must be based on one of the

enumerated criteria listed in § 4A1.3. Diss. Op. at 34–35. The dissent emphasizes the

words “may include” at the beginning of that list to engage in an entirely new interpretation

of § 4A1.3 and hold that it is not exhaustive.

We reject this argument. There was a time when the list of exceptions was believed

to be not exhaustive. Before 2003, the list began with the words “may include, but is not

limited to, information concerning.” That is why this Court in 1990 observed that the list

constitutes “a broad noninclusive range of examples.” United States v. McKenley,

(4th Cir. 1990). Amendment 651 brought the language in § 4A1.3 to its

current version.

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After this change in the language, this Court presented a different rationale to treat

the list as not exhaustive: the content of an unrelated application note. This Court reasoned

that because an application note in § 1B1.1 informs us that “[t]he term ‘includes’ is not

exhaustive,” then the list in § 4A1.3 must not be exhaustive either. See, e.g., United States

v. Robinson,

(4th Cir. 2011) (per curiam) (citing U.S.S.G. § 1B1.1

cmt. 2). This reasoning was unsound ab initio because the application note specifies that

its definition is “not designed for general applicability” and that its “applicability to

sections other than those expressly referenced must be determined on a case-by-case basis.”

U.S.S.G. § 1B1.1 cmt. 2. Nowhere in the application notes for § 4A1.3 is the definition

for “includes” expressly referenced even though those notes expressly reference definitions

from other comments. See U.S.S.G. § 4A1.3 cmt. 1.

These cases were decided without the benefit of United States v. Campbell,

(4th Cir. 2022), which clarified that courts should look to the Guideline commentary

only when the Guideline is genuinely ambiguous. This case then presents the first

opportunity for this Court to reassess in a published opinion whether the reasoning from

our earlier decisions remains tenable.

These earlier cases and the dissent’s assertions are not tenable as a matter of

statutory interpretation. The Supreme Court has noted that the word “may” has an elusive

definition: sometimes it is permissive, yet other times it is mandatory. See Zadvydas v.

Davis,

(2001). Here, the Guidelines provide that district courts are

allowed to depart if reliable information indicates that the criminal history category

misrepresents the likelihood of recidivism. The next paragraph specifies that “reliable

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information may include” one of five criteria, including similar conduct lacking a

conviction. There is no indication that “may” is permissive, nor that this list is not

exhaustive, as would be made clear by the inclusion of the phrases “including, but not

limited to” or “such as.” Further, it is well-established under the expressio unius canon of

statutory interpretation that “where a law expressly describes a particular situation to which

it shall apply, what was omitted or excluded was intended to be omitted or excluded.”

United States v. Roane,

, 548 (4th Cir. 2022) (citing Reyes-Gaona v. N.C.

Growers Ass’n,

(4th Cir. 2001)). The Guidelines specifically allow

courts to consider dissimilar conduct yielding a sentence of more than a year, and similar

conduct that lacks a conviction.

The dissent also errs by contending that “when the Sentencing Commission intended

to exclude from consideration a particular type of information, it said so.” Diss. Op. at 34–

35. This argument misunderstands the prohibition created by § 4A1.3(a)(3). As this Court

has found, this prohibition emphasizes the inability for arrest records to provide

information reliable enough to form the basis for the upward departure, and it instead

obliges sentencing courts to use more reliable sources to develop facts surrounding the

arrests. Dixon,

. For instance, an arrest record standing by itself is not

reliable enough to form the basis for an upward departure based on prior similar adult

criminal conduct not resulting in a criminal conviction. But this does not mean that

everything save arrest records can be considered as the basis for an upward departure.

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Under the dissent’s interpretation, and despite the clear enumeration, the Guidelines

also allow consideration of any type of conduct at all, rendering the inclusion of five listed

criteria meaningless. We cannot agree that the Guidelines were drafted in such a way.

2.

Having found that the conduct relied upon for an upward departure must be similar,

we now turn to whether the district court’s reliance on Nixon’s several acts of post-

conviction acts of violence was permissible. When reviewing a departure under

§ 4A1.3(a)(2)(E), we must ensure that there is a direct corollary between the uncharged

conduct and the offense of conviction, typically requiring an exact match between at least

some part of the related conduct and the uncharged “similar” acts. See, e.g., Dixon,

(finding prior “illegal possession of a firearm” conviction to be similar criminal

conduct for a “firearm possession charge,” and “three pending narcotics charges” to be

“similar to the relevant conduct surrounding his federal firearm conviction, which included

possession of narcotics with the intent to distribute”); Grubbs, 585 F.3d at 803–04 (finding

uncharged instances of sexual abuse to be similar to the offense of sexual abuse at issue).

While Nixon’s actions while incarcerated were reprehensible, they cannot be

considered “similar criminal conduct” under § 4A1.3(a)(2)(E). None of the post-offense

conduct relied upon by the district court is similar to the underlying offense: possession of

a firearm and a small quantity of marijuana while a passenger in a vehicle. Nor is it similar

to any relevant actions surrounding the underlying offense. Even the broadest framing of

the circumstances giving rise to Nixon’s conviction would include:

18 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 19 of 40

Nixon’s removal of his electronic monitor during supervision, his suspected involvement in shooting activity, his possession of a weapon knowing he was a prohibited person, his movements toward the gun when approached by law enforcement, his statements to police upon arrest, and the possession of a gun belonging to a recently deceased shooting victim.

Resp. Br. at 17. The only post-offense acts that possibly relate to any of this relevant

conduct is the possession of sharpened metal rods, which, in this Court’s view, is a stretch

at best given the significant differences between firearms and metal rods, and the prison

and non-prison contexts.

The dissent finds “felon in possession of a gun” and “inmate in possession of a shiv”

to be quintessential examples of similarity because in both instances, Nixon possessed a

weapon that he was not allowed to have. Diss. Op. 35. To start, the assumption that any

felon with a firearm is planning to or in effect has already engaged in violence is

incompatible with our constitutional emphasis on the right to keep and bear arms for self-

defense. See New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

, 33, 70 (2022).

Further, this analysis completely ignores that only a sliver of the conduct relied upon for

the upward departure was analogous to his firearm charge as possession of a weapon as a

prohibited person. Even if every instance of possession of any weapon that one is not

allowed to have is per se similar, the district court’s upward departure would still be based

on information from far outside what can be permissibly considered.

The government provides only one authority from this Court for the proposition that

similar conduct need not exactly match the conduct of the offense at issue or relevant

conduct surrounding that offense. Resp. Br. at 17. That case involved an upward departure

when sentencing the defendant for marijuana possession with intent to distribute, where

19 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 20 of 40

there was a prior conviction for possession of marijuana allegedly for personal use. See

generally United States v. Escano,

(Table) (4th Cir. 2000) (unpublished).

While not an identical context, the Court was faced with the same question of whether prior

conduct was sufficiently similar to be considered at sentencing pursuant to U.S.S.G.

§ 4A1.2(e). While certain convictions are not included in the calculation of a criminal

history score if they are more than a decade old, district courts can consider these remote

convictions under § 4A1.3(a)(2)(E) if they are “similar.” See U.S.S.G. 4A1.2, cmt. n.8. In

an unpublished and non-binding opinion, this Court found the criminal possession of

marijuana and repeated acts of drug distribution in both instances rendered the conduct

sufficiently similar, despite the remoteness in time of those prior convictions. Escano,

at *2. As this Court explained, the offenses were sufficiently similar because

they both “involve his possession of marijuana” and the defendant’s “repeated convictions

for drug-related offenses evidence his likelihood of recidivism.”

Thus, the district court

was permitted to consider these offenses in granting an upward departure.

Here, the government fails to show that there is a common level of similarity

between Nixon’s post-offense acts and the actual offense at issue in this case. Nixon’s

uncharged post-conviction conduct does not demonstrate a pattern of “repeated

convictions” for felon in possession of a firearm offenses. Escano, 205 F.3d at *2. Nor

does the uncharged conduct involve a similar element to the underlying offense, like a

“controlled substance” or a firearm.

As such, Escano does little to suggest that the

uncharged conduct in this case can be considered similar to the underlying offense.

20 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 21 of 40

It is true that some of our sister circuits have pushed the boundaries of what

constitutes similar conduct. See, e.g., United States v. Goshea,

, 1363–64 (9th

Cir. 1996) (finding conduct of impersonating a military officer to obtain jobs and access to

officer’s clubs and military bases substantially similar to conduct of impersonating a

military officer to obtain money); United States v. Mayo,

, 131–32 (2d Cir.

1994) (finding prior arsons designed to fraudulently disadvantage financial institutions in

their loan dealings with defendant to be sufficiently similar to the frauds prosecuted in the

case at issue); United States v. Robertson,

(10th Cir. 2009) (affirming

district court’s consideration of violent criminal conduct involving firearms for a felon in

possession of a firearm); United States v. Bullock,

, 672 (8th Cir. 2022)

(affirming similarity of prior criminal firearms charge because both the acquitted conduct

and present incident involved firearms). But, even if we were to accept the reasoning of

these cases, all involved far more commonality between the uncharged conduct and

underlying offense than what is presented here. To this Court’s knowledge, no court has

ever accepted the argument that illegal possession of a firearm is the same as possession or

use of a sharpened metal rod. We decline the government’s invitation to find that any acts

involving possession of a weapon are inherently similar.

The Sentencing Guidelines permit a district court to consider dissimilar conduct so

long as it results in a conviction and sentence of more than one year. U.S.S.G.

§ 4A1.3(a)(2)(B). But to protect the rights of a defendant, unrelated criminal conduct “not

resulting in a criminal conviction” can only be considered for an upward departure if that

conduct is similar––no matter that conduct’s violent nature, or no matter how “not good”

21 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 22 of 40

and “very concerning” a court considers the conduct to be. U.S.S.G. § 4A1.3(a)(2)(E);

J.A. 210. The district court’s almost exclusive reliance on dissimilar conduct here renders

the sentence procedurally unreasonable.

B.

In addition to relying on dissimilar conduct, the district court further erred by failing

to consider intermediate criminal history categories and offenses levels.

Referencing U.S.S.G. § 4A1.3(a)(4)(B),5 this Court requires district courts to apply

an incremental approach when selecting an alternative criminal history category. United

States v. Rusher,

(4th Cir. 1992) (the judge may “move on to a still

higher category only upon a finding that the next higher category fails adequately to reflect

the seriousness of the defendant’s record.”). “In light of the Commission’s careful

construction of the criminal history categories, when a judge concludes that a defendant’s

category is inadequate, a sentence in the range of the next higher category will usually be

sufficient.”

at 895 (quoting United States v. Coe,

(2d Cir. 1989)).

“Section 4A1.3’s mandate to depart incrementally does not, of course, require a

sentencing judge to move only one level, or to explain its rejection of each and every

intervening level.” United States v. Dalton,

(4th Cir. 2007). And, as

the dissent rightly points out, while a court should indicate its reasons for departing upward

5 While U.S.S.G. § 4A1.3(a)(4)(B), by its terms, only applies when a district court seeks to depart upward from a criminal history category of VI, this Court and our sister circuits have relied on this section in holding that district courts must always apply an incremental approach to sentencing departures. Rusher,

n.10 (noting that courts have adopted the incremental approach in reference to § 4A1.3). 22 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 23 of 40

under § 4A1.3, it need not “incant the specific language used in the guidelines,” Rusher,

, or “go through a ritualistic exercise in which it mechanically discusses

each criminal history category [or offense level] it rejects en route to the category [or

offense level] that it selects,” Dalton,

(quoting United States v. Lambert,

(5th Cir. 1993)).

However, the requirement of providing specific reasons for departing “is not

satisfied by a general recitation that the defendant’s criminal history category or offense

level underrepresents, in the sentencing court’s opinion, the defendant’s criminal record or

the seriousness of the charged offense.” Rusher,

(quoting United States v.

Wells,

(9th Cir. 1989) (per curiam)). And “[t]he farther the

[sentencing] court diverges from the advisory guideline range,” the more a reviewing court

must “carefully scrutinize the reasoning offered by the district court in support of the

sentence.” Provance, 944 F.3d at 219–20 (cleaned up).

In the case before us, it is clear that the district court inadequately considered

intermediate categories before departing from category III to category VI and increasing

the offense level to 24. The district court noted that it is “instructed to move incrementally”

but then only cursorily stated: “I find III to be woefully inadequate, so I move to the right

towards criminal history category VI.” J.A. 201. There was no further explanation of how

the court arrived at that value.

The error inherent in the district court’s failure to consider intervening categories in

this case is best demonstrated by this Court’s precedent in Dalton. There, we rejected an

upward departure of “almost twice the top of the advisory guidelines range” where the

23 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 24 of 40

court only provided a “fairly general statement that it ‘considered lesser offense levels and

found them to be inadequate.’” Dalton, 477 F.3d at 199–200. This Court then vacated the

sentence and remanded for a more thorough analysis “[i]n view of the magnitude of the

district court’s departure.” Id. at 200.

Here, the district court departed from a Guideline range of 41–51 months to a

sentence of 114 months, even more extreme than the departure in Dalton. J.A. 70, 211.

The district court did not even say it considered the intervening categories; only that it was

supposed to and that it found “category III to be woefully inadequate.” J.A. 201. The

dissent faults us for “not tak[ing] the district court at its word.” Diss. Op. 36. But avoiding

a “ritualistic exercise” cannot permit the absence of a process altogether. And given the

magnitude of the court’s departure here, our precedent requires far more explanation. See

United States v. Chatterji,

(4th Cir. 1995) (“conclusory statements by

the district court” are insufficient to justify upward departure from Guidelines range);

Rusher,

(vacating sentence where “general recitation that the defendant’s

criminal history category or offense level” is underrepresentative was really an attempt to

“bypass[] the criminal history categories entirely in [the court’s] desire to impose a

particular sentence.”) (cleaned up). The district court’s departure from category III was

procedurally unreasonable.

As an additional note, the cases cited by the government only illustrate the

inadequacy of the district court’s analysis here. See Resp. Br. at 22–23. For example, in

United States v. Nance, the district court gave at least some explanation for how it

considered and rejected intervening criminal history categories, stating: “if I go forward

24 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 25 of 40

from a level five to a six, 24 to 30 doesn’t capture it. It’s only when I go down to a level

17 that I begin to think that I’m in a range that will accomplish the purposes of sentencing.”

, 211 (4th Cir. 2020). This Court upheld that upward departure based on the

mention of the intermediate categories and a clear demonstration by the district court that

it went step-by-step, as required.

at 212–15. This is quite different from the district

court’s immediate jump to category VI, and it only serves to highlight the reversible error

committed below. In our view, it would be a rejection of our precedent to find that no

additional explanation is required in this case, especially when, as here, an upward

departure more than doubles the Guideline range. And while some may place reduced

value on procedural minimums in sentencing, arguments about the value of procedural

rights for criminal defendants do not trump precedent that requires more from a district

court when departing upward to such a significant degree. The district court abused its

discretion in more than doubling Nixon’s sentence without even acknowledging other

criminal history categories on the way. Even if the district court could have relied on

dissimilar evidence in departing upward, this error alone renders the sentence procedurally

unreasonable. By only paying lip service to the requirements of our precedent, the district

court failed to ensure that Nixon’s sentence was not “greater than necessary” to satisfy the

purposes of sentencing.

(a).

C.

In addition to the above errors, the district court rejected the testimony of an

unrebutted medical expert without any justification, instead relying on no evidence to

support its finding that Nixon’s originally calculated criminal history category of III

25 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 26 of 40

underrepresented his likelihood of recidivism. The court’s summary rejection of such

unrebutted expert testimony renders its finding clearly erroneous.

We review the district court’s factual conclusions for clear error. Bolton,

. “[W]hile clear error review is deferential, it is not toothless.” Butts v. United States,

(4th Cir. 2019) (citing United States v. Wooden,

(4th

Cir. 2012)). “This Court has identified four grounds for reversing factual findings: (1) they

were derived under an incorrect legal standard, (2) they are not supported by substantial

evidence, (3) they were made while ignoring substantial evidence supporting the opposite

conclusion, and (4) they are contrary to the clear weight of the evidence.” Heyer v. U.S.

Bureau of Prisons,

, 355 (4th Cir. 2021).

The district court both “ignor[ed] substantial evidence supporting the opposite

conclusion” and made a finding “not supported by substantial evidence,”

when it

completely rejected Dr. Utterback’s opinion that Nixon’s infractions during incarceration

were the result of his untreated Bipolar I disorder, J.A. 199–200. Specifically, the district

court characterized Nixon’s false denial that he had a weapon and his statement to prison

officials that he could only receive a maximum 120-month sentence as evidence of

“planning and not some manic episode as a result of bipolar,” J.A. 210, although the court

provided no evidence for this assertion. Based on these incidents, the court also found that

there was “a tremendous need for personal incapacitation” because Nixon’s conduct

created a dangerous environment for him, for other inmates, and for correctional staff. J.A.

210. But the court gave little consideration to the possibility that these violent acts may

not occur in the future with proper treatment.

26 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 27 of 40

The district court’s conclusion stands in stark contrast to the testimony of the only

expert offered in this case. Dr. Utterback explained that manic episodes can last days or

weeks. J.A. 113. These episodes are characterized by symptoms that can include

“[e]xcessive involvement in activities that have a high potential for painful consequences.”

As Dr. Utterback continued,

Mania in particular tends to trigger aggressive emotions and anger. The racing thoughts and high energy levels may leave the individual feeling angry, irritable, and frustrated. Those angry emotions[,] in turn, can cause aggressive and inappropriate behaviors. When things don’t go the way the manic person envisions, or if someone tries to rein in a manic person, the individual may lash out . . . . These behaviors are outside of the person’s control.

J.A. 114. Most importantly, Dr. Utterback stated that these symptoms were treatable. In

her view, with weekly psychotherapy and proper medication, Nixon would not have

engaged in the violent behavior that justified the upward departure and variance.

And

as Nixon notes, this is corroborated by a two-month period in which Nixon received proper

medication, during which time he received zero disciplinary violations. J.A. 143; see also

J.A. 140–42.

Both the dissent and the district court commit the same error in misunderstanding

Dr. Utterback’s testimony. The dissent would have us affirm on the basis that the court

below properly rejected the argument that Nixon’s lack of “impulse” control was responsible

for his acts that required “planning.” Diss. Op. 37–38. But as noted above, Dr. Utterback

explained that impulsive behavior can last days or weeks. J.A. 113. The evidence of

“planning” focused on by the district court is explained to be part of a longer-term manic

episode, involving impaired decision-making for an extended period rather than in only

27 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 28 of 40

isolated instances. Thus, to reject Dr. Utterback’s conclusion that Nixon’s Bipolar disorder

caused his actions because those actions required more than an immediate impulse decision

reflects a lack of understanding of her testimony. This failure to correctly comprehend the

evidence presented by Dr. Utterback is reversible error.

Based on the evidence before the court, we hold it was clearly erroneous to reject

Dr. Utterback’s opinion without any countervailing evidence nor stating any reasons to

discredit the expert’s testimony. As we explained in Heyer, a district court’s “conclusory

dismissal” of the testimony of a medical expert with “minimal citations in support of this

conclusion compared to the full evidence in the record compel[s] us to hold that the district

court clearly erred.” 984 F.3d at 360. There, the district court rejected expert testimony

about deaf individuals’ difficulties with communication in prison. Id. at 359–60. The

district court then affirmed the prison’s refusal to allow Heyer, a deaf prisoner, to make

video calls based on the court’s conclusion that Heyer could read and write effectively and

that written communication was sufficient. Id. at 360–61. It cited no evidence for this

finding, instead poking holes in the medical expert’s testimony without any

counterevidence to support the supposed problems with the expert’s methodology. Id. at

360. This Court reversed, finding that the lack of evidence to support the district court’s

position could not be justified. Further, we held that other evidence in the record, including

Heyer’s own testimony, corroborated the expert report’s conclusions, which rendered the

district court’s conclusion clearly erroneous. Id. at 361–62.

Here, the government presented no evidence of Nixon’s mental health or bipolar

disorder generally. Faced with a one-sided record, the district court substituted its personal

28 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 29 of 40

views on mental health and human behavior for those of a medical professional. Even

worse than in Heyer, the district court did not even identify any flaws in Dr. Utterback’s

methodology, instead simply asserting its disagreement with Dr. Utterback’s medical

opinion. J.A. 201. And given the corroborating evidence of Nixon’s good behavior when

he has received proper treatment, J.A. 143, it was clearly erroneous for the district court to

reject Dr. Utterback’s testimony. Because the expert testimony was rejected in error, the

district court’s finding that criminal history category III underrepresented Nixon’s

likelihood of recidivism cannot pass muster. The only expert to provide testimony in this

case found that Nixon’s conduct was a result of his mistreated mental health condition and

that, if treated, Nixon would no longer engage in violent behavior. J.A. 114. This finding

was corroborated by the record, including evidence that Nixon received no disciplinary

infractions while receiving the same treatment recommended by Dr. Utterback. J.A. 143.

A district court cannot just disregard evidence that is contrary to its predisposed

conclusions without any counterevidence, no matter how informed on the subject the

district court may think itself to be. Heyer, 984 F.3d at 361.

* * *

The district court based its entire upward departure on Nixon’s dissimilar acts, and

it skipped steps in getting to its desired sentencing range, both of which we have explained

were independently abuses of discretion. But even without those errors, the court’s

rejection of Dr. Utterback’s report led to a clearly erroneous finding of an inflated

likelihood of recidivism. All in all, Nixon’s sentence was procedurally unreasonable for

three independent reasons, each of which could have required vacatur alone.

29 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 30 of 40

V.

Having found the sentence before us to be procedurally unreasonable, we now turn to

whether the sentencing errors are nevertheless harmless. Gomez-Jimenez,

.

As this Court has repeatedly explained, we are bound by the “principle that district courts

may not improperly calculate a Guidelines range.” Elboghdady, 117 F.4th at 237. Even the

“decision to impose a lenient sentence does not correct [a procedural] . . . error.” Id.

Given the proper guideline sentencing range of 41–51 months, we cannot possibly

find the district court’s sentence of 114 months to be harmless error. The compounded

procedural errors yielded a Guideline range completely out of step with that compelled by

the circumstances of this case. We have already found much smaller disparities alone to

be enough to negate harmlessness for a procedurally unreasonable sentence. See

Elboghdady, 117 F.4th at 237 (declining to find harmless error where the proper Guidelines

range was 63–78 months but the district court imposed a sentence of 120 months).

Furthermore, any upward variance that could support this sentence would have to be based

on an unexplained rejection of Dr. Utterback’s testimony, which we have already found to

be legal error. Thus, our precedent requires a finding that the procedural errors here are

not harmless and that we remand for resentencing.

VI.

As even the district court noted, Nixon could have been separately charged with and

convicted of the violent acts described above. For reasons unknown, the government

elected not to do so. Instead, the government sought to punish Nixon through sentencing

30 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 31 of 40

for an unrelated offense, circumventing Nixon’s right to a jury trial and the heightened

burdens of proof that come with new criminal proceedings. While the sentencing

Guidelines allow some consideration of uncharged conduct, the district court here

effectively convicted and sentenced Nixon for unrelated, dissimilar conduct, which

undermines the fundamental guarantees of our Constitution that the sentencing Guidelines

are structured to protect.

This opinion is far from an endorsement of the excessively violent conduct upon

which the district court based its heightened sentence. Rather, we base our reversal on the

principle that our procedural minimums must be applied fairly to all. If this principle is to

have any meaning, then the district court’s several procedural errors and complete

disregard for Nixon’s untreated mental health condition, which together led it to more than

double Nixon’s sentence, compel our reversal.6 We reject the notion that a district court

can set aside these procedural requirements just to “err[] on the side of caution.” Diss. Op.

40. If that were the law, then this Court would be powerless to review any sentence in any

case, as a district court could always set aside the Guidelines to increase a sentence out of

an abundance of caution.

Based on the above, we vacate the sentence and remand with instructions that the

district court recalculate Nixon’s criminal history category without improper consideration

6 “Having found an abuse of discretion in the district court’s sentencing procedure, we decline to address [Nixon’s] substantive sentencing arguments.” Elboghdady, 117 F.4th at 237 n.10. However, we note that our findings regarding the rejection of Dr. Utterback’s testimony apply equally to the district court’s § 3553(a) analysis. 31 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 32 of 40

of dissimilar conduct, with consideration of intermediate criminal history categories, and

without unwarranted and unexplained rejection of Dr. Utterback’s crucial testimony.7

VACATED AND REMANDED WITH INSTRUCTIONS

7 “We emphasize, however, that this remand does not mean the government gets a second bite at the apple.” United States v. Pettus,

, 287 (4th Cir. 2024). “Rather, the district court should make its determination . . . on the record as it exists.”

(citing United States v. Rowe,

(3d Cir. 2019)). 32 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 33 of 40

PAMELA HARRIS, Circuit Judge, dissenting:

I appreciate the majority’s careful attention to Mr. Nixon’s circumstances and

sentencing. In my view, however, the defendant’s 114-month sentence for possession of a

firearm as a felon, see

(g), is neither procedurally flawed nor substantively

unreasonable, and I therefore respectfully dissent.

I begin with the district court’s upward departure under § 4A1.3(a)(1) of the

Sentencing Guidelines, predicated on its finding that Nixon’s criminal history substantially

underrepresented his likelihood of recidivism. That determination rested largely on

Nixon’s violent conduct while in custody awaiting sentencing on his § 922(g) offense. J.A.

192-99.1 As the majority recounts, that conduct included multiple instances in which Nixon

assaulted or stabbed his fellow inmates, one of which led to new felony charges against

him. For context, I would add just a bit of detail on one later incident that was important

to the district court’s thinking: Upon his arrival for a court appearance at the Terry

Sandford Building in Raleigh, North Carolina, Nixon was found to be concealing in his

rectum a piece of metal, four inches long and sharpened at one end like a “makeshift . . .

weapon.” J.A. 175. When asked by a deputy United States marshal why he had a “shank,”

Nixon indicated that it was for “people like” the marshal who was then restraining him.

J.A. 176. He also advised the deputy that the maximum sentence on his § 922(g) offense

was 120 months, and that they “couldn’t do anything else to him.” Id.

1 The majority assumes without deciding that § 4A1.3(a)(2) allows for consideration of conduct after the offense of conviction. I am not sure that we need to reserve that point, in part because every court of appeals to consider the question has agreed on it, and in part because Nixon himself expressly concedes the question. See Br. of Appellant at 14 n.1.

33 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 34 of 40

Accounting for all of that post-offense conduct, as well as the violent nature of

Nixon’s prior felony, the sixty infractions he incurred while in state custody, and his

multiple violations of post-release supervision, the district court found an extremely high

risk of recidivism – “as close to 100 percent as it can be” – that was not reflected in Nixon’s

criminal history category of III. J.A. 200; see id. at 199 (summarizing “this history that

I’ve recounted of violence and failure to comply with the rules and even engaging in

violence while in custody”). I am hard pressed to see how that amounts to an abuse of the

district court’s broad discretion.

The majority first faults the district court for not adhering to a rule that upward

departures may be based on uncharged conduct only if it is “similar” to the charged offense.

With respect, I do not see where that rule comes from. It is true that “[p]rior similar adult

criminal conduct not resulting in a criminal conviction” is included in a list of “Types of

Information” on which a district court may rely in departing upward. See U.S.S.G.

§ 4A1.3(a)(2)(E). But that list does not purport to be exhaustive. Instead, § 4A1.3(a)(1)

allows for an upward departure when any “reliable information” indicates a substantial

underrepresentation of the likelihood of recidivism, and § 4A1.3(a)(2) provides only that

such “information [] may include” the listed types. U.S.S.G. § 4A1.3(a)(2) (emphasis

added); see J.A. 192-93 (explaining that § 4A1.3(a) gives “a non-exhaustive list of things

that a court might consider”). And when the Sentencing Commission intended to exclude

34 USCA4 Appeal: 23-4207 Doc: 46 Filed: 03/10/2025 Pg: 35 of 40

from consideration a particular type of information, it said so. See § 4A1.3(a)(3)

(prohibiting reliance on a “prior arrest record itself” in departing upward).2

In any event, I disagree with the majority that Nixon’s charged conduct is not

“similar” to his post-arraignment criminal conduct. We do not have the benefit of the

district court’s thinking on this issue, because Nixon never raised it before that court.3 But

“felon in possession of a gun” and “inmate in possession of a shiv” strike me as very

similar: As to both, the defendant’s status (as a felon, as an inmate) prohibited him from

having a weapon; as to both, the defendant willfully flouted that restriction; and as to both,

there followed the potential or actuality of violence and danger. There may be “significant

differences between firearms and metal rods,” as the majority observes – even when the

metal rods are sharpened for use as weapons – but I do not believe the “similarity” analysis

needs to be conducted at that level of granularity. See United States v. Dixon,

(4th Cir. 2003) (finding narcotics charges “similar” to a firearm offense, based on

an “analysis focus[ed] more broadly” on a defendant’s relevant conduct).

2 The majority traces our precedent on this issue, which predates United States v. Campbell,

(4th Cir. 2022), and finds that we have our “first opportunity . . . to reassess in a published opinion” whether the list in § 4A1.3(a)(2) remains non- exhaustive. Because my assessment that it does is based on the text of the Guideline and not on commentary, Campbell has no bearing. But if I thought Campbell might shed light on the meaning of § 4A1.3(a)(2), I would wait for a better “opportunity” to address that question in a published opinion – perhaps one in which a party had actually raised the issue, giving us the customary benefits of party presentation, like briefing. 3 Because the defendant forfeited this claim before the district court, our review ordinarily would be for plain error only. See United States v. Smith,

, 464–65 (4th Cir. 2023). For the reasons given above, I find no error in the district court’s analysis, let alone one that would qualify as “plain.”

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The majority next finds error in the district court’s selection of a new Guidelines

range, on the ground that the court failed to follow the “incremental” approach for upward

departures. See United States v. Dalton,

(4th Cir. 2007) (explaining that

a court “should move to successively higher categories only upon finding that the prior

category does not provide” an adequate sentence). But the district court expressly

acknowledged that it was “instructed to move incrementally” in identifying an appropriate

criminal history category and Guidelines range, and concluded that “having done that,” it

had moved “to the right” across the sentencing chart to a criminal history category of VI

and “down” the chart to an offense level of 24. J.A. 201 (emphasis added). I see no reason

not to take the district court at its word.

The majority does, pointing to the fact that the court started at category III and ended

at category VI without discussing the categories in between. But we have made clear that

the incremental approach “does not [] require a sentencing judge to . . . explain its rejection

of each and every intervening level.” Dalton,

(internal quotation marks

omitted). If the extent of the departure is the majority’s concern, then that is addressed by

the district court’s thorough explanation of why it believed category III “woefully

inadequate” and only category VI – combined with additional steps up through the offense

levels – sufficient to capture Nixon’s risk of recidivism. J.A. 192-200. Nothing would be

served by requiring the district court also to spell out the obvious fact that if category VI is

appropriate, then categories IV and V are not. See Dalton,

(assuring that a

court need not “go through a ritualistic exercise in which it mechanically discusses each

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criminal history category [or offense level] it rejects en route to the category [or offense

level] that it selects”) (internal quotation marks omitted).

Finally, the majority disagrees with the district court’s assessment of the opinion of

Dr. Utterback, a psychiatrist who conducted two teleconference interviews with Nixon

while he was in custody and then submitted a report. The report predated two final

incidents that occurred just weeks before Nixon’s sentencing – one in which Nixon, found

with a “filed down” metal rod, reportedly threatened to cut off an officer’s head; and the

one in which Nixon attempted to bring a shiv into the Terry Sanford Building to use against

United States marshals – and so it could not speak to all of Nixon’s post-arraignment

criminal conduct. But in her report, Dr. Utterback did opine that Nixon’s earlier prison

“infractions” – stabbings, assaults, and hidden makeshift weapons – were most likely the

result of Nixon’s bipolar disorder.

Although the majority describes Dr. Utterback’s opinion as unrefuted, that is not

quite right. As defense counsel presented it at sentencing,4 Utterback’s view was that

Nixon’s assaults and stabbings and homemade weapons were “quintessential unplanned

behavior,” impulsive reactions rather than “the product of some sort of deliberate

premeditated decision.” J.A. 188 (emphasis added). But the government put on evidence

4 Dr. Utterback did not testify at Nixon’s sentencing, but the district court considered and discussed her report, see, e.g., J.A. 199-200, and defense counsel ably incorporated that report into her arguments, as described above.

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to push back on that view, with witnesses explaining that it takes time and planning to

create and conceal a weapon in prison, and deliberate forethought to hide a shank on one’s

person in preparation for an upcoming transport to a federal building. For the district court,

this was the crux of the matter: Defense counsel, relying on Utterback’s evaluation, was

insisting that Nixon’s post-arraignment criminal activity involved “no planning,” while the

evidence in front of it – especially the episode at the Terry Sanford Building – was to the

contrary. J.A. 191 (“[T]ell me how you make an argument about no planning. When

somebody’s told you’re going to go to Terry Sanford . . . and then you put a 4-inch metal

shank in your rectum seems to be pretty planned to me.”); see also J.A. 200 (rejecting

opinion that “this is [] impulsive behavior on [Nixon’s] part”). Perhaps we would have

assessed the record differently. But the district court fully and repeatedly explained why it

was unpersuaded that Nixon had acted purely on “impulse,” see J.A. 192, 200, 210, and I

see no ground for setting aside its considered judgment as clear error or an abuse of

discretion.5

Last, there is the question of harmless error. As the majority notes, the district court

expressly stated that if it erred in departing upward, it would impose the same 114 months

of imprisonment as an alternative variant sentence under the § 3553(a) factors. Ordinarily,

then, we would treat any procedural error related to the upward departure as harmless so

5 To be clear, the district court did credit much of Dr. Utterback’s report. As defense counsel observed at sentencing, the court credited Utterbuck’s diagnoses and treatment recommendations, and it adopted all of the recommended treatment plans as part of its sentence.

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long as Nixon’s sentence would be procedurally and substantively reasonable as a variance.

See United States v. Nance,

, 212 n.2 (4th Cir. 2020); United States v. Gomez-

Jimenez,

(4th Cir. 2014). There is no dispute on the procedural

reasonableness side; the district court thoroughly explained its sentence, and Nixon does

not argue otherwise. Nixon does argue that the court’s 114-month sentence – more than

double the original 41-to-51-month range from which the district court departed – is

substantively unreasonable, and while the majority seems to agree, I cannot.

According to Nixon, the district court went wrong by giving too much weight to his

criminal conduct and the need for “personal incapacitation,” J.A. 211, and not enough to

his mental health condition. But weighing the § 3553(a) factors and striking the

appropriate balance is at the core of a district court’s “extremely broad” sentencing

discretion, see United States v. Jeffrey,

(4th Cir. 2011), and I see no abuse

of discretion here. A 114-month sentence would of course represent a very substantial

variance. But the district court gave very substantial reasons for its sentence: Though it

would not go as high as the government’s requested 120 months, the district court

explained, a sentence of 114 months was necessary to meet a “tremendous need for

personal incapacitation” as well as to “promote respect for the law,” considering not only

the defendant’s past history of violent criminal conduct, state prison infractions, and

supervised release violations, but also his “lawlessly violent conduct while in custody”

awaiting sentencing, which put in danger Nixon himself, “other detainees, other inmates,

and [] correctional staff.” J.A. 210-11.

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The defendant argues, and the majority suggests, that the district court still failed to

give sufficient attention to the possibility that Nixon’s condition could improve with

treatment. But the district court did, as noted above, provide for Dr. Utterback’s

recommended treatment as part of its sentence. And while Nixon emphasized at sentencing

that he was seeking treatment and had done so in the past, he had failed to comply with

mandated mental health treatment while on supervised release. At the end of the day, as

defense counsel herself put it at sentencing, the district court was required to make an

essentially predictive judgment, without “the benefit of gauging” where “Mr. Nixon can be

in the future with treatment.” J.A. 204. And while counsel sought a sentence “conveying

[] optimism” about the future,

I do not think the court abused its discretion by instead

erring on the side of caution.

Accordingly, I respectfully dissent.

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