United States v. Kelvin Brevard, 18f4th722

Brevard, serving a D.C. Code sentence at a halfway house, left on July 31, 2019 and was arrested about seven weeks later; he pleaded guilty to federal escape (18 U.S.C. § 751(a)).
PSR produced an advisory Guidelines range of 12–18 months (offense level 7, CHC V); Probation recommended 12 months; the government sought 15–18 months. District court imposed 30 months.
The district court considered an uncharged September 17, 2019 D.C. Code incident (assault/threats) reported in the PSR; those D.C. charges were dismissed for noncooperation by the victim.
At a reopened sentencing hearing the court heard Officer Kasongo’s testimony (including hearsay/excited utterances) and found the threats proven by a preponderance, then applied U.S.S.G. §5K2.21 to depart upward.
Alternatively the court applied 18 U.S.C. §3553(a) and imposed the same 30-month upward variance based on Brevard’s extensive criminal history (prior escape, probation violations, assaults).

Issue	Plaintiff's Argument (Brevard)	Defendant's Argument (Government)	Held
Whether an upward departure under U.S.S.G. §5K2.21 may be based on uncharged D.C. Code conduct that was not joinable in the federal case	§5K2.21 requires the uncharged conduct to underlie a potential charge “in the case”; D.C. offenses could not have been pursued in the federal escape prosecution because they were not properly joinable under Rule 8	Any conduct while on escape reflects the seriousness of the escape; escape is a continuing offense so the uncharged conduct is contemporaneous and relevant under §5K2.21	Reversed as to the §5K2.21 departure: district court misread the Guideline because the D.C. charges could not have been properly joined in the federal case, so §5K2.21 did not apply
Whether the district court’s alternative upward variance under 18 U.S.C. §3553(a) was substantively reasonable given reliance on hearsay testimony	The variance (almost double the Guidelines range) rested on unreliable, unconfronted hearsay and thus lacked sufficiently compelling justification	The court also relied on Brevard’s criminal history (prior escape, probation violations, assaults) — independent grounds that support a variance	Affirmed: district court did not abuse its discretion; §3553(a) analysis and Brevard’s criminal history provided an adequate independent basis for the variance

Gall v. United States, 552 U.S. 38 (2007) (standards for abuse-of-discretion review of departures/variances and need for stronger justification for major deviations)
United States v. Bailey, 444 U.S. 394 (1980) (treatment of escape as a continuing offense; relied on by government)
United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1998) (Rule 8 joinder requires logical relationship; mere sequential "but for" relationship insufficient)
United States v. Olivares, 473 F.3d 1224 (D.C. Cir. 2006) (a sentence based on an incorrect legal interpretation of the Guidelines is procedural error)
United States v. Brown, 808 F.3d 865 (D.C. Cir. 2015) (district court may vary based on criminal-history factors not fully accounted for by the Guidelines)
United States v. Simpson, 430 F.3d 1177 (D.C. Cir. 2005) (appellate affirmance of alternative variance rationale)
United States v. Perry, 731 F.2d 985 (D.C. Cir. 1984) (joinder of discrete offenses requires a logical relationship)
Palmore v. United States, 411 U.S. 389 (1973) (context on division of D.C. Code jurisdiction between federal and D.C. courts)
United States v. Williamson, 903 F.3d 124 (D.C. Cir. 2018) (deferential review of district court sentencing balancing)