Court rejects "procedural reasonableness" challenge to appellate waiver despite massive upward variance

United States v. Gross, 44 F.4th 1298 (10th Cir. 2022) Substantive reasonableness of sentence Mr. Gross had a teensy episode of road rage (as the passenger) and shot at the car that allegedly cut them off. He told his brother (in the backseat) to hide the gun in the trunk. Cops eventually catch up to the car and discover two stolen guns in the trunk of the car. Mr. Gross admits to owning the (stolen) handgun. Mr. Gross has a restraining order out against him, making him a prohibited person for gun possession purposes. He pled guilty and waived his right to challenge the procedural reasonableness of any sentence but could challenge the substantive reasonableness if it exceeded the guideline range. Mr. Gross appears to have anger issues – he has numerous misdemeanor level assaults/batteries. One of his ex-girlfriends eventually gets a restraining/protective order against him. (This is the order that makes him a prohibited person.) He also has minor drug and vandalism offenses. But he has no felonies. His guideline range was 57-71. The judge sentenced him to the statutory maximum 120 months. As this was far above his guideline range, Mr. Gross appealed his sentence. Now remember there was an appellate waiver for procedural reasonableness of the sentence but not for the substantive reasonableness. He raises 3 challenges: 1) his base level was inflated because he should not have gotten the enhancement for the stolen gun and the one for the drive-by; 2) a jury has to determine if he knew the gun was stolen and whether it was a drive-by or just negligent use of a firearm (Apprendi/Alleyne challenge); and 3) the court didn’t properly consider 3553(a) factors in giving him such a high sentence. The Tenth points out that the first two arguments are procedural unreasonableness arguments and barred by the appellate waiver. It declares “A defendant may not make an end run around an appeal waiver by suggesting we should evaluate the way the district court calculated the Guidelines range as part of our substantive [reasonableness] analysis.” They do recognize the procedure affects the substance but they are really into enforcing that waiver of procedural reasonableness. And then, they concluded the 120-month sentence was perfectly reasonable.