## Facts

- Antonio Ladell Robertson, a convicted felon, pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- The Presentence Investigation Report (PSR) calculated an advisory Sentencing Guidelines range of 18–24 months (offense level 12; criminal history category III).
- The PSR described two prior shooting incidents (firing into an occupied residence or vehicle) that did not result in convictions because charges were dismissed after witness noncooperation.
- The PSR also described Robertson’s prior convictions (including drug and gun offenses) and repeated parole or supervision violations.
- Robertson did not object to the factual accuracy of the PSR, and the district court treated the PSR’s factual statements as admitted.
- Concluding that the Guidelines range understated Robertson’s history and risk of recidivism, the district court varied upward under 18 U.S.C. § 3553(a) and imposed 41 months’ imprisonment.

## Issues

1. Whether the district court committed procedural error by relying on prior unconvicted conduct described in the PSR to support an upward variance.
2. Whether the 41-month sentence was substantively unreasonable as greater than necessary under 18 U.S.C. § 3553(a).
3. Whether reliance on conduct associated with prior arrests or dismissed charges was impermissible when supported by PSR descriptions rather than the fact of arrest alone.

## Decision

- The Tenth Circuit affirmed the sentence.
- The court held the district court could rely on PSR descriptions of prior unconvicted conduct when the information was sufficiently reliable and not disputed by the defendant.
- The court found no procedural error because the district court correctly calculated the Guidelines range, considered the § 3553(a) factors, and adequately explained the reasons for the upward variance.
- The court found the sentence substantively reasonable given Robertson’s undisputed history of firearm-related violence and repeated supervision violations, and the need to protect the public and deter further crimes.

## Legal Principles

- A sentencing court may consider uncharged, dismissed, or unconvicted conduct if supported by reliable information and established by at least a preponderance of the evidence.
- A court may not sentence based solely on a bare arrest record, but may consider reliable factual descriptions of underlying conduct contained in the PSR.
- When a defendant fails to object to factual statements in the PSR, the sentencing court may treat those facts as admitted and rely on them at sentencing.
- An upward variance is procedurally proper when the district court correctly computes the Guidelines, considers the § 3553(a) factors, and gives a sufficient explanation for appellate review.
- Substantive reasonableness review is deferential; a significant variance may be upheld when supported by the defendant’s history and the statutory purposes of sentencing.

## Conclusion

The Tenth Circuit upheld a substantial upward variance where the district court relied on undisputed PSR accounts of prior gun-related violence and repeated supervision violations to conclude that the advisory Guidelines range understated the defendant’s criminal history and the need for deterrence and public protection.


United States v. Robertson, 568 F.3d 1203 (10th Cir. 2009)