United States v. Pena, 963 F.3d 1016

Background

Peña was convicted after a bench trial of conspiracy to commit carjacking, carjacking, multiple counts of being a felon in possession of firearms, possession of methamphetamine, and one § 924(c) count based on four April 2010 incidents (Lacey home entry/carjacking, April 10 drive-by shooting, April 18 Luna vehicle theft, and April 19 arrest).
District court originally sentenced Peña to 480 months under the ACCA enhancement; Johnson v. United States later rendered the ACCA residual-clause enhancement unavailable.
On resentencing the court recalculated the Guidelines (adjusted range 63–78 months; total with § 924(c) mandatory minimum 123–138 months) but imposed a 360-month (30-year) upward variance, emphasizing Peña’s repeated firearm brandishing/use, violent history, and prison weapons violations.
Peña appealed, arguing procedural error (failure to consider § 3553(a) factors; improper comparison to § 924(c) offenders) and substantive unreasonableness (mischaracterization of conduct, failure to weigh rehabilitative efforts/age, disparity with co-defendant, punishment for going to trial, “windfall” comment, and excessive upward variance).
The Tenth Circuit reviewed procedural claims for plain error and substantive claims for abuse of discretion, and affirmed the 360‑month sentence.

Issues

Issue	Peña’s Argument	Government’s Argument	Held
Whether district court failed to consider all § 3553(a) factors	Court ignored mitigating evidence (childhood, meth use, medication) and relied only on criminal history	Court expressly considered Peña’s history, PSR, and mitigation but found them insufficient to outweigh violent firearm history	No plain error — court considered §3553(a) factors and weighed them; no procedural error
Whether court improperly compared Peña to § 924(c) offenders or relied on uncharged/acquitted conduct	Court treated possibility of additional § 924(c) consecutive terms as a basis for sentence	Court only referenced such possibilities for comparison and expressly did not base the sentence on uncharged or acquitted conduct; acquitted conduct may be considered at sentencing	No error — court did not impose sentence based on uncharged conduct and properly used acquitted conduct for comparison (Watts)
Whether Peña was penalized for exercising his right to trial / entitled to acceptance-of-responsibility credit	Peña contends he implicitly accepted responsibility and should have gotten credit despite going to trial	He went to trial on all counts and did not admit all conduct; acceptance credit is not appropriate where defendant denied essential elements	Held: No abuse of discretion; district court permissibly denied acceptance credit
Whether the 360-month upward variance was substantively unreasonable	Variance is excessive, disconnects sentence from Peña’s actual conduct, and ignores age/recidivism data; compares unfavorably to co-defendant	District court gave detailed §3553(a) reasons: repeated firearm brandishing/use, prison weapons violations, public‑safety risk, and analogous precedent upholding large variances	Held: No abuse of discretion; court provided compelling, articulated reasons for the substantial upward variance and affirmed sentence

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
Gall v. United States, 552 U.S. 38 (2007) (sentencing review standard and deference to district court’s §3553(a) balancing)
United States v. Pinson, 542 F.3d 822 (10th Cir. 2008) (upheld large upward variance as reasonable)
United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012) (upheld significant upward variance where defendant’s history warranted it)
United States v. Worku, 800 F.3d 1195 (10th Cir. 2015) (affirmed extreme variance when supported by defendant’s record)
United States v. Watts, 519 U.S. 148 (1997) (acquitted conduct may be considered at sentencing)
United States v. Tucker, 473 F.3d 556 (4th Cir. 2007) (reversed an extreme upward variance lacking compelling justification)