United States of America v. Steven Newkirk

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 25-1780
____________
UNITED STATES OF AMERICA,
Appellant
v.
STEVEN NEWKIRK
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:20-cr-00623-001)
District Judge: Honorable Brian R. Martinotti
____________
Argued March 11, 2026
Before: HARDIMAN, KRAUSE, and MASCOTT,
Circuit Judges
(Filed: May 1, 2026)
_______________
OPINION OF THE COURT
_______________

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HARDIMAN, Circuit Judge.
Steven Newkirk entered an open guilty plea to one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Based on his offense level of 26 and
his criminal history category of IV, the United States
Sentencing Guidelines advised 92 to 115 months’
incarceration. The District Court sentenced Newkirk to time
served, which was just shy of two weeks.
The Government filed this appeal, arguing that
Newkirk’s sentence was procedurally and substantively
unreasonable. Because we agree with the Government on both
points, we will vacate and remand for resentencing consistent
with this opinion.
I
Newkirk was a target in a drug investigation and the
Government obtained a warrant to search his apartment. The
affidavit supporting the warrant mentioned drug sales there,
including a March 2019 controlled purchase by a confidential
informant who reported that Newkirk was inside his apartment
with a “black handgun sitting on the table next to [him].” Supp.
App. 16.
While executing the search warrant, officers noticed a
safe in Newkirk’s bedroom. Inside, they found a firearm loaded
with 13 rounds of hollow-point ammunition, several loose
rounds of ammunition, and numerous empty glassine
envelopes. The firearm had been reported stolen in Georgia the
year before. Officers also recovered three glass jars containing
marijuana, paperwork bearing Newkirk’s name, a cell phone,

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and $2,970 in cash. Elsewhere in the apartment, officers
discovered 110 grams of marijuana, another cell phone, 90
glassine envelopes of heroin, two boxes of unused stamped
glassine envelopes, a digital scale, and other drug
paraphernalia.
The State of New Jersey charged Newkirk with 16
counts, including various firearm and drug offenses. He spent
about two weeks in state custody from April 17–29, 2019. The
United States then charged Newkirk with possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). He was arrested on the federal charge on April 29
and released the next day on an unsecured bond.
Upon release, the District Court placed Newkirk on
home confinement. Over a year later, in August 2020, the
Court relaxed Newkirk’s conditions to home detention to allow
him to find work. In January 2022, the Court further relaxed
Newkirk’s conditions, placing him under a curfew. While
Newkirk was on pretrial release between 2019 and 2024, he
tested positive for marijuana 15 times, alcohol once, and
benzodiazepine once. He submitted diluted urine four times,
which also tested positive for marijuana. During this time,
Newkirk completed mental health and substance abuse
programs.
Before trial, the Government turned over recordings of
jailhouse calls Newkirk made while in state custody. In one,
Newkirk told his girlfriend: “I had my fucking gun in my safe,
ok?” App. 217. Later, however, Newkirk claimed through
counsel that he actually said, “I didn’t have no gun in my safe,”
and alleged that the Government altered the recording. App. 23
(emphasis added). Over the ensuing months, he leveled similar
accusations and went so far as to move into evidence an expert

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opinion that the recordings had been altered. The District Court
denied Newkirk’s various motions because his claim was
“speculative” and would not “help[] the jury.” App. 91–92.
Eventually, after the recording was played in open court,
Newkirk’s counsel admitted she was wrong: “I must have
misheard it” and “I want to apologize to the [G]overnment.”
App. 301.
Just days before trial, Newkirk entered an open guilty
plea. While doing so, Newkirk did not allocute that the loaded
firearm was his or that it was found in his bedroom. Instead, he
admitted only that he had constructive possession over a
firearm that he knew was in the apartment.
Recall that Newkirk’s advisory Guidelines range was 92
to 115 months’ imprisonment. That range reflected that
Newkirk was previously convicted of three drug-distribution
offenses, two of which involved selling drugs near schools. It
also reflected that Newkirk did not fully accept responsibility
for his current offense, and that his firearm was stolen.
In its sentencing memorandum, the Government asked
for 92 months’ imprisonment. For his part, Newkirk requested
“probation, with conditions such as community service or
placement in a halfway house.” App. 146. Alternatively, he
requested at most 40 months’ imprisonment, and later 36
months’ imprisonment. Newkirk’s counsel again claimed that
the firearm was not his: “[t]he gun was taken to Mr. Newkirk’s
room and photographed in his safe.” App. 229. Newkirk also
challenged the Government’s claim that he was a gang
member, an assertion the Government based on Newkirk’s
tattoos and his statements during an intake interview. Newkirk
later backtracked, claiming his interview statements had been
“a bit of an exaggeration.” App. 232.

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The sentencing hearing finally took place on January
23, 2025, almost six years after Newkirk’s arrest. There, the
District Court referenced the many “positive testimonials” it
received about Newkirk and noted that his work owning and
running Gloves Up Gunz Down, a business and nonprofit
organization that promotes boxing events as a solution to gang
violence, was “laudable.” App. 264. Still, the Court agreed that
the Probation Office had correctly calculated the Guidelines
range and that Newkirk was not entitled to a two-point
acceptance-of-responsibility reduction. The Court was
“disquieted” by Newkirk’s repeated suggestion that the firearm
had been planted by law enforcement, stating: “I do not find
any credibility in that.” App. 266. Newkirk’s recorded jail call,
the Court said, “clearly, in my opinion, indicates that this was
the defendant’s gun.” Id.
Urging the District Court to vary downward from his
Guidelines range, Newkirk’s counsel stressed his involvement
with Gloves Up Gunz Down and his support from family and
friends. Counsel highlighted that Gloves Up Gunz Down
promotes boxing as a nonviolent way for gangs to resolve their
differences, and that Newkirk often speaks to young people in
his community about how to avoid his past mistakes. She also
pointed out that the organization generates revenue from
tickets and sponsorships, and has donated money to fund
college scholarships for neighborhood youth. In 2023, for
instance, Gloves Up Gunz Down gave $5,000 college
scholarships to two high school seniors.
The District Court next heard from Newkirk’s
supporters. Newkirk’s younger sister, an Army veteran,
testified that Newkirk “never gave up on me,” has “grown
tremendously,” and is “generous, reliable, [and] trustworthy
again.” App. 281–82. The cofounder of Gloves Up Gunz Down

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testified that Newkirk is a “real good-hearted individual,” a
“[g]reat dad,” and a “[r]eal motivator” who does “the right
thing” even when he is “not being watched.” App. 283. It was
Newkirk’s idea “to give back scholarships to the community.”
App. 282. Newkirk’s cousin explained that Gloves Up Gunz
Down “put[s] on events that push peace on a wide scale”;
Newkirk has “created an actual business out of this”; and “we
need him out here” “pushing what he’s doing.” App. 286–87.
A young man from his community testified that Newkirk is a
“mentor” to him and that “he is reliable” and “a good support
system.” App. 289. And Newkirk’s older brother testified that
Newkirk kept him from “going back to prison” and that he does
not want his “kids to be deprived of always being able to talk
to Uncle Steven,” whom they “love.” App. 292.
Newkirk himself addressed the District Court. Though
he admitted that he said he had a firearm in his safe during the
recorded call (“Yes, those are my words.”), he continued to
claim that “it wasn’t [his] gun.” App. 297. Newkirk also
explained that “[t]his prison sentence will never teach me the
things that I’ve learned while I was on [pretrial release],
because I got to see the frustration of my son.” App. 297–98.
Newkirk testified that he was “not asking” the Court “to let me
go scot[]-free, even though I would love that.” App. 299.
For its part, the Government again requested 92 months’
imprisonment, focusing on the seriousness of Newkirk’s
offense, his refusal to accept responsibility, his previous gang
membership, and his unfounded allegations of police
misconduct. After Newkirk’s counsel apologized to the
Government “for in any way implying that any evidence [had
been] altered,” App. 301, the District Court adjourned the
hearing. As the Court explained, “rather than just imposing a
sentence now, I want to reflect on what happened in this

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courtroom this morning because, candidly, it’s a little different
than it was when I walked out.” App. 302.
Two months later, the District Court reconvened the
hearing and imposed the sentence. The Court remarked that
after “23 years, this is certainly one of the most challenging
issues that I have been presented with.” App. 305. After
summarizing the initial hearing, the Court then turned to the
sentencing factors set forth in 18 U.S.C. § 3553(a). The Court
explained that this was a “serious offense,” because “[g]uns in
society cause untold consequences” and “there need[] to be
consequences for [unlawfully] possessing a weapon.” App.
307–08. The Court also acknowledged that it was “looking at
a defendant who had a very, very difficult upbringing, who was
thrust in an environment of gang-related activity, [and] who
was a recidivist as far as criminal conduct.” App. 308. And the
Court noted Newkirk’s “significant” and “troubling” criminal
history. App. 308–09. But it also observed that it was “looking
at a defendant who has for the past five years,” i.e., while on
pretrial release, “been upstanding, has not strayed aside for
some positive testing, has turned his life around, has given
back to his community, [and was] committed to his
family . . . [and] to his child.” App. 308. The Court commented
that “this case ha[d] lingered” due to the COVID-19 pandemic,
pretrial motions, and the difficulty of finding a trial date before
Newkirk pleaded guilty, but “during that entire time, aside
from a few hiccups, he ha[d] remained compliant with his
conditions” and that “his conduct while on pretrial release
[was] exemplary.” App. 309–10. So the Court was “relatively
confident that the defendant who is sitting before me now is
not the same person who has that criminal history and has
shown this Court that he is committed to moving on.” App.
309.

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The District Court then delved into the essential facts of
Newkirk’s offense: “law enforcement recovered a large safe in
[Newkirk’s] bedroom containing a stolen firearm loaded with
13 rounds of ammunition and numerous empty glassine
envelopes.” App. 311. It discussed Newkirk’s upbringing,
childcare responsibilities, work in the community, and
tragedies he endured, including the death of his daughter. The
Court noted that Gloves Up Gunz Down “has provided
scholarships to individuals; some of whom have written letters
and one of whom came into court.” App. 312. Though
Newkirk, through counsel, had, in fact, requested probation in
his sentencing memorandum, the Court stated “what really
motivated” the sentence was that Newkirk “didn’t ask to go
scot-free” and his “lawyer didn’t ask this Court to not put
[Newkirk] in prison.” App. 313–14.
Following that explanation, the District Court imposed
a sentence of “time served,” App. 313, which was about 14
days. According to the Court, “to put [Newkirk] in prison for
one year or two years or three years or 96 months, in my
opinion . . . unwinds everything.” App. 314. The Government
objected to the sentence and the Court’s explanation before
filing this timely appeal.
II1
Although the Guidelines are advisory and “there is no
mandatory script for sentencing,” United States v. Goff, 501
F.3d 250, 256 (3d Cir. 2007), a district court must follow a
1 The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 18 U.S.C. § 3742(b) and 28 U.S.C.
§ 1291.

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three-step sentencing process, United States v. Merced, 603
F.3d 203, 215 (3d Cir. 2010). The court must first “correctly
calculate the defendant’s Guidelines range.” Id. Next, the court
“must rule on any motions for departures.” Id. Finally, “after
giving both parties an opportunity to argue for whatever
sentence they deem appropriate,” the court must “exercise its
discretion” with “meaningful consideration” of the sentencing
factors in § 3553(a). Id. (citation modified).
Our review of a criminal sentence “proceeds in two
stages.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.
2009) (en banc). We first review for procedural error, “such as
failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.” Id. (quoting Gall v. United States, 552 U.S.
38, 51 (2007)). If we find procedural error, we usually “remand
the case for re-sentencing, without going any further.” Merced,
603 F.3d at 214. At the second step, we consider whether the
sentence fails to achieve the purposes stated in § 3553(a), such
that, all things considered, “no reasonable sentencing court
would have imposed the same sentence on that particular
defendant for the reasons the district court provided.” Tomko,
562 F.3d at 567–68. The party who challenges a sentence has
the burden to demonstrate its unreasonableness. Id. at 567.
Because the Government objected at sentencing to the
procedural and substantive reasonableness of Newkirk’s
sentence, we review for abuse of discretion. United States v.
Jackson, 132 F.4th 266, 272 (3d Cir. 2025).

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A
The District Court’s sentence was procedurally
unreasonable in two ways. First, the Court did not adequately
consider two § 3553(a) sentencing factors: (1) the risk of
unwarranted sentencing disparities; and (2) general deterrence.
See 18 U.S.C. § 3553(a)(2)(B), (6). Courts must have
“sufficient justifications on the record to support the
sentencing conclusions.” Tomko, 562 F.3d at 567 (citation
modified). And “[w]here one party raises a colorable argument
about the applicability of one of the factors,” as here, “the court
should respond to that argument as part of its meaningful
consideration of the relevant statutory factors and the exercise
of independent judgment.” Merced, 603 F.3d at 222 (citation
modified). A court’s “failure to do so in the face of a colorable
argument that an outside-the-Guidelines sentence will create a
risk of such disparities constitutes procedural error.” Id. And a
court’s failure to “adequately address the impact its sentence
would have on the deterrence of similar criminal conduct” is
also procedural error. Goff, 501 F.3d at 256.
On this record, “[n]othing . . . indicates that the District
Court considered [the need to avoid unwarranted sentencing
disparities] at all, despite the [G]overnment’s emphasis on that
argument in its sentencing memorandum and the risk of
disparities that [Newkirk’s 14-day] sentence undoubtedly
created.” Merced, 603 F.3d at 224. Consider that a hypothetical
defendant also convicted under § 922(g)(1), with an offense
level of 14 and a criminal history category of I, would have an
advisory Guidelines range of 15 to 21 months’ imprisonment.
See U.S.S.G. § 2K2.1(a)(6); U.S.S.G. ch. 5, pt. A. That range
stands in stark contrast to Newkirk’s advisory range of 92 to
115 months, given his offense level of 26 and his criminal
history category of IV. Yet Newkirk was sentenced to about

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two weeks’ imprisonment, a more than 91-month downward
variance 99.5 percent below the recommended range.
Nor does the record show that the District Court
properly considered general deterrence. The Government
argued that a bottom-of-the-Guidelines sentence of 92 months’
imprisonment would promote general deterrence. At
sentencing, the District Court acknowledged that “there need[]
to be consequences for [unlawfully] possessing a weapon.”
App. 308. Yet it mentioned general deterrence only in passing
and never explained how Newkirk’s 14-day sentence would
“send a message that this type of behavior will not be tolerated
in our society.” App. 308.
To be sure, courts are not required to “specifically
discuss each of the sentencing factors in every case.” Merced,
603 F.3d at 222. But where, as here, “the sentence imposed is
‘far below the sentences given to similar offenders,’ the risk of
disparities should be analyzed with ‘particular care.’” Id.
(quoting United States v. Lychock, 578 F.3d 214, 219 (3d Cir.
2009)); see also Goff, 501 F.3d at 256 (same). And under these
circumstances, the District Court’s perfunctory mention of the
need to afford adequate deterrence and avoid unwarranted
sentence disparities was simply not enough: the Court recited
those factors along with several others but offered no further
discussion. See United States v. Jumper, 74 F.4th 107, 114 (3d
Cir. 2023) (listing as examples of procedural unreasonableness
“gloss[ing] over the Section 3553(a) factors” and
“inadequately explain[ing] the chosen sentence” (citation
omitted)). Even after the Government raised these two
deficiencies at the conclusion of the hearing, the District Court
offered no additional explanation for its sentence. The Court’s
“failure to do so was procedural error.” Merced, 603 F.3d at
225; see also United States v. Negroni, 638 F.3d 434, 446 (3d

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Cir. 2011) (“While the District Court identified the concern
and stated it had considered [the need to avoid unwarranted
sentencing disparities], it provided no explanation for why the
sentence it imposed was justified despite the clear disparity it
seemed to create.”).
Second, the District Court’s sentence was procedurally
unreasonable because it failed to provide sufficient
justification for its substantial downward variance. “After
settling on the appropriate sentence” and “carefully analyz[ing]
the sentencing factors,” a court “must adequately explain the
chosen sentence to allow for meaningful appellate review.”
Merced, 603 F.3d at 215 (quoting Gall, 552 U.S. at 50).
Sometimes a “brief” explanation is sufficient, most often
“when a judge decides simply to apply the Guidelines to a
particular case.” Rita v. United States, 551 U.S. 338, 356
(2007). But if the court, as here, “decides that an outside-
Guidelines sentence is warranted, [it] must consider the extent
of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 552
U.S. at 50. And “[t]he farther a sentence varies from the
advisory Guidelines range, the more compelling the judge’s
reasons must be.” United States v. Ausburn, 502 F.3d 313, 331
n.36 (3d Cir. 2007) (citation modified). So a large variance
from the Guidelines range must be supported by a “fuller
explanation.” United States v. Kononchuk, 485 F.3d 199, 204
(3d Cir. 2007); see also Merced, 603 F.3d at 216 (“The extent
of the explanation we require of the district court may turn on
whether the court has varied from the Guidelines range, and, if
it has, on the magnitude of the variance.”); cf. Gall, 552 U.S.
at 50 (“We find it uncontroversial that a major departure should
be supported by a more significant justification than a minor
one.”).

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Here, the variance was “genuinely extraordinary,”
Negroni, 638 F.3d at 446, and even the District Court remarked
that it was “out on a limb to the extent that this is a substantial
variance,” App. 313. Indeed, the sentence imposed was more
than 91 months and 99.5 percent below the bottom of the
applicable Guidelines range. Yet the District Court did not
provide a “sufficiently compelling” reason to justify such
leniency. Gall, 552 U.S. at 50; see also Negroni, 638 F.3d at
446 (vacating a sentence where the Guidelines range was 70 to
87 months’ imprisonment and the district court had imposed
60 months’ probation, noting that such a variance “should have
been accompanied by a thorough justification of the
sentence”). Rather, it placed nearly exclusive focus on
Newkirk’s presentencing rehabilitation. Because the District
Court’s “explanation focused on the defendant’s
own . . . rehabilitation to the exclusion of other important
sentencing factors,” its “explanation is incomplete, and hence
inadequate, to justify the extent of the variance imposed.”
United States v. Crespo-Rios, 787 F.3d 34, 38–39 (1st Cir.
2015).
In defense of his sentence, Newkirk argues that “the
District Court made clear that it considered every relevant
factor.” Newkirk Br. 18. But “the explanations of the relevant
sentencing factors must go beyond mere formalism,”
Kononchuk, 485 F.3d at 204, especially where the sentence
varies so significantly from the Guidelines range. See Merced,
603 F.3d at 224–25; see also United States v. Begin, 696 F.3d
405, 414 (3d Cir. 2012) (“This rote recitation of § 3553(a)(6)
is insufficient to permit us to review the Court’s resolution of
[the defendant]’s disparity arguments.”). In any case,
Newkirk’s history and characteristics “cannot be seen in a
vacuum and must be balanced against the other applicable

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§ 3553(a) factors,” which the District Court did not do here.
United States v. Hayes, 762 F.3d 1300, 1308 (11th Cir. 2014).2
Newkirk also defends the procedural reasonableness of
his sentence by claiming that the District Court considered his
“sixty-six months of [pretrial] supervision.” Newkirk Br. 16.
But it is unclear what significance that has for procedural
reasonableness determinations, and, in any event, the Court
never specifically discussed the length and terms of Newkirk’s
pretrial release. See Ausburn, 502 F.3d at 331 (declining to “fill
in the gaps” or make inferences about what the district court
may or may not have thought when imposing a sentence). The
District Court did refer generally to the pretrial delay caused
by the COVID-19 pandemic, but whatever the delay, the
District Court granted a 91.5-month variance and imposed a
sentence of about two weeks’ imprisonment without
adequately discussing general deterrence or unwarranted
sentencing disparities, and without adequately explaining why
2 See also, e.g., United States v. Vázquez Narvaez, 134 F.4th
23, 29 (1st Cir. 2025) (vacating a sentence where “the district
court focused almost exclusively on [the defendant’s] efforts at
cooperation and rehabilitation following his arrest”); United
States v. Thompson, 130 F.4th 1158, 1166 (9th Cir. 2025)
(vacating a sentence and explaining a defendant’s “personal
background and characteristics are, of course, proper
considerations at sentencing but they may not be the sole basis
for the chosen sentence”); United States v. Fitzpatrick, 126
F.4th 348, 353–55 (4th Cir. 2025) (vacating a sentence where
“the district court focused almost exclusively on [the
defendant’s] personal history and characteristics”).

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Newkirk deserved such an extraordinary downward variance.
That was procedural error.
B
Although we usually remand for resentencing after
identifying a procedural error “without considering the
substantive reasonableness of the sentence imposed,” United
States v. Jackson, 862 F.3d 365, 394 (3d Cir. 2017), we may
address substantive unreasonableness when a district court
abused its discretion in imposing the underlying sentence. See,
e.g., id. at 393–94 (concluding the sentence was both
procedurally and substantively deficient); Lychock, 578 F.3d at
219–20 (same). In some cases, like this one, “a discussion of
procedural error will necessarily raise questions about the
substantive reasonableness of a sentence.” United States v.
Levinson, 543 F.3d 190, 195 (3d Cir. 2008). In such cases,
discussing both “ensure[s] that a substantively reasonable
sentence has been imposed in a procedurally fair way.” Id. It
also serves the interests of judicial economy because the two
errors can be intertwined: procedural unreasonableness often
begets substantive unreasonableness. See, e.g., Merced, 603
F.3d at 215 (“These procedural requirements exist to guide the
district court’s exercise of discretion, and failure to observe
them may lead a court to impose a substantively unreasonable
sentence.” (citation modified)); Goff, 501 F.3d at 256
(substantively unreasonable sentence was “a product of the
[d]istrict [c]ourt’s procedurally flawed approach”); Lychock,
578 F.3d at 220 (similar). And when “no reasonable sentencing
court [could] have imposed the same sentence on [the]
particular defendant for the reasons the district court
provided,” the sentence is substantively deficient. Tomko, 562
F.3d at 568. That was the case here.

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The weight the District Court placed on the first
§ 3553(a) factor—the nature and circumstances of Newkirk’s
offense and his history and characteristics—cannot support its
sentence. Newkirk possessed the firearm after he was
previously convicted of three drug-distribution offenses, two
of which involved selling drugs near schools. Newkirk also had
more recent convictions for disorderly conduct and prowling
to obtain or sell drugs. Though the Court recognized that
Newkirk was a “recidivist” with a “significant criminal
history,” App. 308, its sentence did not reflect that reality.
As for the current offense, the firearm was stolen, which
increased Newkirk’s offense level. And though it did not add
to his offense level, the firearm was loaded with 13 rounds of
hollow-point ammunition, which are “designed to expand on
contact and cause aggravated wounds.” United States v.
Philiposian, 267 F.3d 214, 215 (3d Cir. 2001). This fact
supports a longer sentence, not a shorter one. Recall also that
Newkirk’s apartment was searched because he was the target
of a drug trafficking investigation, which placed him in his
apartment with a firearm during a drug sale. To repeat the
obvious: “drugs and guns are a dangerous combination.” Smith
v. United States, 508 U.S. 223, 240 (1993); see also U.S.S.G.
§ 2D1.1 cmt. n.11(A) (acknowledging an “increased danger of
violence when drug traffickers possess weapons”). Simply put,
“[t]he District Court should have given significantly greater
weight to the seriousness of [Newkirk’s] offense.” Goff, 501
F.3d at 260.
It is also significant that Newkirk failed to accept
responsibility for his offense. At various points, Newkirk
impugned the recording in which he admitted his firearm was
in his safe and suggested the firearm may have been tampered
with or moved by law enforcement. The District Court

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acknowledged that these assertions lacked “any credibility”
and were “disquiet[ing],” and that, “in [the Court’s]
opinion, . . . this was the defendant’s gun.” App. 266. Yet
Newkirk continued to maintain as late as the sentencing
hearing that “it wasn’t [his] gun.” App. 297. As with his
criminal history and the nature and circumstances of his
offense, Newkirk’s failure to accept responsibility counsels in
favor of a higher sentence, not a downward variance—let alone
one of this extraordinary magnitude.
The District Court’s rationale for its downward variance
focused almost exclusively on Newkirk’s presentence
rehabilitation. But the “emphasis on [Newkirk’s] personal life”
was so strong as to render meaningless the other aspects of the
case. Goff, 501 F.3d at 260. “Congress has instructed the
Sentencing Commission to ‘assure that the [G]uidelines and
policy statements, in recommending a term of
imprisonment . . . reflect the general inappropriateness of
considering the education, vocational skills, employment
record, family ties and responsibilities, and community ties of
the defendant.’” United States v. Boucher, 937 F.3d 702, 711
(6th Cir. 2019) (quoting 28 U.S.C. § 994(e)). Although
sentencing courts may consider those factors in certain cases,
see Goff, 501 F.3d at 261 n.16, the District Court extrapolated
from Newkirk’s personal background that his offense is
dramatically different from other gun possession cases. It is
not.
Contrary to the District Court’s characterization,
Newkirk’s “conduct while on pretrial release” was not
“exemplary.” App. 310. The District Court referred to a “few
hiccups,” App. 309, but Newkirk’s noncompliance was far
more serious: over a period spanning nearly all five years of
his pretrial release, Newkirk tested positive for marijuana 15

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times and submitted diluted urine four times (which also later
tested positive for marijuana). And he tested positive for
alcohol once and benzodiazepine once.3 But even if Newkirk
had committed no violations, “defendants are expected to
comply with the conditions of their release—that is, such
conduct is not outside the norm,” so compliance alone cannot
support a large downward variance. United States v. Vázquez
Narvaez, 134 F.4th 23, 31 (1st Cir. 2025) (emphasis added).
None of that diminishes Newkirk’s recent dedication to his son
and his community, both of which are commendable. But while
leading an avowed anti-violence organization and parenting his
son, Newkirk also conducted a drug deal in his apartment while
armed with a firearm, and was then arrested in this case when
the loaded firearm and drugs were found in his bedroom and
apartment. So Newkirk is not the “role model” the Court
imagined him to be. App. 306.
The District Court’s other reasons for its variance are
equally unpersuasive. The Court explained that it was “really
motivated” by the fact that neither Newkirk nor his counsel
“ask[ed] this Court to not put [him] in prison.” App. 313–14.
Even if that reason could be valid in some cases, it was not true
here. In both his sentencing memorandum and reply, Newkirk
requested probation, a non-carceral sentence. The Court
agreed, suggesting that even “one day” in prison would
“unwind[] all” that Newkirk had achieved. App. 314. But the
Court’s 99.5 percent downward variance from the bottom of
the applicable Guidelines range provided little punishment and
3 Newkirk concedes that “on occasion” he failed to comply
with his supervision requirements. Newkirk Br. 2 n.1.
According to his counsel, his marijuana use was medical and
he had a benzodiazepine prescription.

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created a significant sentencing disparity, which undercut the
interest in uniform sentencing practices and the perception of
fair sentencing. See 18 U.S.C. § 3553(a).
Finally, Newkirk argues that the length of his pretrial
release was “sufficient” “to achieve the goals of sentencing”
and, thus, justified the District Court’s downward variance.
Newkirk Br. 2. Newkirk’s pretrial conditions spanned 16
months of home confinement; 17 months of less-restrictive
home detention; and 32 months of even less-restrictive curfew.
Those conditions are hardly the equivalent of time in prison.
And, in any case, Newkirk cannot rely on this argument to
justify the District Court’s sentence because he did not make it
below, and the Court did not rely on it as a basis for its
variance. Jackson, 862 F.3d at 394 (“A sentence must . . . be
reversed if ‘no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the
reasons the district court provided.’” (emphasis added)
(quoting Tomko, 562 F.3d at 568)).
Newkirk’s period of pretrial release cannot reduce his
recommended sentence for another reason. The Guidelines
preclude the use of home detention or confinement as an
alternative to imprisonment where, as here, the recommended
sentence is “15 months or more.” U.S.S.G. § 5C1.1 cmt. n.8;
see U.S.S.G. § 5C1.1(f); U.S.S.G. ch.5, pt. A; cf. Reno v.
Koray, 515 U.S. 50, 52 (1995) (concluding that the time a
defendant spent on bail before trial “was not ‘official
detention’ within the meaning of 18 U.S.C. § 3585(b)” and
could not be “credit[ed] against his sentence of
imprisonment”). To be sure, a sentencing court can consider
pretrial detention if it decides to vary from the Guidelines.
United States v. Romualdi, 101 F.3d 971, 977 (3d Cir. 1996).
But given that pretrial release is “not as harsh as

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imprisonment,” “a day-to-day offset against time to be served
in prison” “would be too lenient to represent the punishment
that Congress intended.” United States v. Martin, 363 F.3d 25,
39–40 (1st Cir. 2004); see United States v. Little, 123 F.4th
1360, 1371 (D.C. Cir. 2024) (discussing “ample precedent”
that “supports not applying a 1:1 ratio when crediting probation
time”). So even if a sentencing court were inclined to grant
Newkirk a downward variance because of the combined 34
months he spent in home confinement and detention, in no
scenario does that time, standing alone, warrant a 91.5-month
reduction.
Because no reasonable court—after considering the
“nature and circumstances” of Newkirk’s offense and the need
for his sentence to “reflect the seriousness of the offense,”
“promote respect for the law,” “provide just punishment”
“afford adequate deterrence” and “avoid unwarranted sentence
disparities,” 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(B),
(a)(6)—would impose a sentence of about two weeks’
imprisonment, Newkirk’s sentence was substantively
unreasonable.
* * *
Since the Supreme Court made the United States
Sentencing Guidelines advisory in its landmark decision in
United States v. Booker, 543 U.S. 220 (2005), this Court has
given district courts a wide berth to impose just and fair
sentences. See Tomko, 562 F.3d at 574–75. Those valid
sentences may include variances from the Guidelines. See, e.g.,
United States v. Zabielski, 711 F.3d 381, 385, 392 (3d Cir.
2013) (approving downward variance of 13 months); United
States v. Johnson, 677 F.3d 138, 144 (3d Cir. 2012) (approving
upward variance of 14 months). But the greater the variance,

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the stronger the explanation must be. See, e.g., Kononchuk, 485
F.3d at 204; Merced, 603 F.3d at 216; Gall, 552 U.S. at 50.
Here, the District Court’s decision to impose a sentence just
shy of 14 days when the Guidelines advised 92 to 115 months
cannot be justified on this record. So we will vacate Newkirk’s
judgment of sentence and remand for the District Court to hold
a new sentencing hearing where it should give serious
consideration to a substantially longer sentence.
Mark E. Coyne
John F. Romano [Argued]
Office of the United States Attorney
District of New Jersey
Counsel for Appellant
Ruth M. Liebesman [Argued]
Ruth M. Liebesman, Atty-at-Law
Counsel for Appellee

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