United States v. Butler (Zarion)

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 26, 2025
• Docket: 24-3067
• Status: Unpublished

Opinion

Appellate Case: 24-3067 Document: 44-1 Date Filed: 06/26/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 26, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-3067 (D.C. No. 2:21-CR-20027-JAR-2) ZARION BUTLER, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and CARSON, Circuit Judges.** _________________________________

Defendant-Appellant, Zarion Butler (“Zarion”), appeals from the district

court’s imposition of an above-guideline sentence after he pled guilty to forcible

assault on a federal officer, 18 U.S.C. §§ 111(b) and 2, and use of a firearm in

furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). Aplt. Br. at 10–11.

Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-3067 Document: 44-1 Date Filed: 06/26/2025 Page: 2

Background

The parties are familiar with the facts, and we need not restate them at length.1

Briefly, on August 3, 2020, Kansas City Kansas Police Department (“KCKPD”)

responded to a drive by shooting at a home belonging to the Butler family on Farrow

Avenue in Kansas City, Kansas. II R. 37. Zarion lived at the home with his brother

G’Ante Butler (“G’Ante”). Id. Zarion and G’Ante were both affiliated with the

“Tasha Gang.” Id. Another Tasha Gang affiliate, Tamani Boykin, was injured in the

shooting. Id. The suspected shooter was Isaiah Shields, a member of Tasha Gang’s

rival, “BBUx2 Gang.” Id. at 37–38. KCKPD officers and ATF agents went to Mr.

Shields’s last known address on North Allis Street in Kansas City, Kansas, where

they took Mr. Shields into custody and executed a search warrant. Id. at 38. While

leaving that residence around 11:30 p.m., officers were fired upon by multiple

shooters from an alley west of the home. Id. One ATF agent sustained a gunshot

wound in his hand while a civilian, J.B., was shot in both hands. Id. Also damaged

in the gunfire were law enforcement vehicles and neighboring houses. Id. Over 100

shell casings were later found in the alley. Id. at 39.

Evidence gathered during the investigation of the shooting led officers to

believe that Zarion, G’Ante, Chase Lewis, Nadarius Barnes, and Donnell Hall carried

out the North Allis Street shooting to retaliate against BBUx2 Gang for the earlier

shooting at the Butler family’s Farrow Avenue home. Id. at 41–42. On June 7, 2021,

1 For a more detailed account of the facts, see the decision in a companion appeal, United States v. Butler (G’Ante), No. 24-3061. 2 Appellate Case: 24-3067 Document: 44-1 Date Filed: 06/26/2025 Page: 3

Zarion was arrested in connection with the shooting. Id. at 42. In a post-Miranda

interview, he stated that, on the night in question, he thought that members of the

BBUx2 Gang were at Mr. Shields’s home celebrating the prior shooting on the Butler

family’s home. Id. Therefore, Zarion, G’Ante, Mr. Lewis, Mr. Barnes, and Mr. Hall

decided to retaliate. Id. They went to Mr. Shields’s North Allis Street home and

began firing. Id. Zarion, G’Ante, Mr. Lewis, Mr. Barnes, and Mr. Hall were charged

with forcible assault on a federal officer, 18 U.S.C. §§ 111(b) and 2, and use of a

firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). I R. 44–

45. Zarion pled guilty to both counts without a plea agreement and proceeded to

sentencing.2 II R. 36–37; III R. 38–69.

The Presentence Investigation Report (“PSR”) calculated a guideline range of

33 to 41 months’ imprisonment for count one, and a statutory minimum of

120 months’ imprisonment for count two to be imposed consecutively with count

one. II R. 55. The PSR stated that a five-level upward departure might be warranted

for count one because the guideline range did not account for the fact that there were

multiple victims. Id. at 59–60. The departure would yield a total guideline range of

177 to 191 months’ imprisonment. See id. at 60.

In its sentencing memo, the government requested a ten-level upward

departure for count one consisting of five levels for the presence of several law

2 Zarion initially entered a Rule 11(c)(1)(C) plea agreement, but the government withdrew that agreement upon learning that Zarion was going to testify at G’Ante’s trial that G’Ante was not involved in the shooting. II R. 36–37. 3 Appellate Case: 24-3067 Document: 44-1 Date Filed: 06/26/2025 Page: 4

enforcement victims and five levels for the serious injury suffered by civilian-victim,

J.B. I R. 624–25. The government recommended 217 months’ imprisonment,

followed by 5 years’ supervised release. Id. at 625. In his sentencing memo, Zarion

recommended 153 months’ imprisonment. Id. at 612, 618. Before sentencing, the

district court filed a notice of possible departure and/or variance, stating that it was

considering an upward departure on the bases outlined by the government, and/or a

variance under the 18 U.S.C. § 3553(a) factors. Id. at 627.

At sentencing, the district court both departed and varied upward. The court

stated that it was not “making a distinction between departure and variance.”

III R. 52. In other words, it was “not adding some for departure and adding some for

variance because they’re really related to the same facts that justify an upward

departure and variance.” Id.

Briefly, departures are “non-Guideline[] sentences imposed under the

framework set out in the Guidelines.” United States v. Vazquez-Garcia, 130 F.4th

891, 899 (10th Cir. 2025) (quotations omitted). Variances are “non-Guideline[]

sentence[s] arising from a district court’s case-specific analysis of the sentencing

factors in § 3553(a).” Id. For departures, courts consider “whether a particular

offense falls within the heartland of offenses involving similar defendants convicted

of the same conduct[.]” Id. (quotations omitted). For variances, “a district court has

independent discretion to vary based on the § 3553(a) factors even when an offense

falls in the heartland of similar offenses.” Id. (quotations omitted).

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Regarding an upward departure, the court explained that “this situation falls

outside of the heartland of cases” for which the U.S.S.G. § 2A2.2 “Aggravated

Assault” guideline was written. III R. 52. According to the court, that guideline was

written for “assault of a federal law enforcement officer, and the heartland of those

cases are typically ones where an officer was assaulted during an arrest or some other

type of encounter and perhaps injured[.]” Id. This case fell outside of that heartland

for three reasons. First, the defendants “fired upon multiple law enforcement

officers,” and “an entire neighborhood” as “shots were being fired indiscriminately

and flying all over the place[.]” Id. at 53. Second, a civilian-victim, J.B., sustained

serious bodily injury which was not accounted for in the guideline given that J.B.

“wasn’t a victim of this crime; he wasn’t a law enforcement officer.” Id. Third, the

court noted “psychological injury to law enforcement officers and to the other people

in that neighborhood whose houses were shot up[.]” Id. at 54.

Next, the court considered an upward variance under the § 3553(a) factors.

Regarding the nature and circumstances of the offense, the court noted the violent

nature of the conduct, labeling it “essentially warfare” which “terroriz[ed] the

neighborhood” and was triggered by Zarion’s anger at Mr. Shields. Id. The court

also noted the need to promote respect for the law, finding that “only a long

sentence” would be satisfactory because Zarion’s retaliatory actions “didn’t consider

that the activity at the house could have been related to law enforcement” given that

officers previously told Zarion’s father that they were going to investigate

Mr. Shields. Id. at 54–55. The court assessed Zarion’s history and characteristics

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which included gang affiliation, use of firearms despite prior felonies, and his lack of

consideration that the retaliatory shooting would impact innocent people in the

neighborhood. Id. at 55–56. As for deterrence, the court emphasized that, even

though gun violence had negatively impacted Zarion and his family, he still chose to

participate in a drive by shooting “that could have just as much killed other innocent

people[.]” Id. at 56. The court also noted the need to protect the public and that

incapacitation and incarceration are crucial where, as here, “shootings happen

because of beefs over girlfriends, when people are heavily []armed and there’s a

proliferation of firearms around them, when there’s been an ongoing dispute back

and forth of terror exacting terror, retaliation without regard for the safety of

anyone[.]” Id. at 57.

Zarion was sentenced to 190 months’ imprisonment (70 months for count one

and 120 months for count two to run consecutively), followed by five years’

supervised release. I R. 631–32. Zarion appealed. Id. at 638.

Discussion

On appeal, Zarion argues that the district court erred in imposing an upward

departure because this case was not outside the heartland of U.S.S.G. § 2A2.2.

Aplt. Br. at 10. He also argues that the district court erred in citing psychological

injury as a potential basis for an upward departure. Id. Finally, he argues that an

upward variance was unreasonable in light of the § 3553(a) sentencing factors. Id.

at 10–11. We are not persuaded by Zarion’s arguments, and therefore affirm.

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We begin by noting that “[d]epartures and variances are analytically distinct,

and courts must be careful not to confuse them.” Vazquez-Garcia, 130 F.4th at 899

(quotations omitted). Still, district courts may “issue both a variance and a

departure,” and need not “choose one over the other[.]” United States v. Fykes,

678 F. App’x 677, 688 (10th Cir. 2017); United States v. Martinez-Barragan,

545 F.3d 894, 901 (10th Cir. 2008) (“[A] sentencing judge does not commit

reversible error by consolidating the two discussions.”). Here, the district court did

not abuse its discretion by varying upward. Thus, we need not consider whether an

upward departure was separately warranted. Even if certain statements regarding the

departure were erroneous, the error would be harmless because there is “no reason to

think that the district court would impose a different sentence on remand if we were

to reverse the departure while affirming the variance[.]” United States v. DeRusse,

859 F.3d 1232, 1238 (10th Cir. 2017) (quotations omitted). Indeed, the district court

here explicitly stated that it was both varying and departing upward based on the

same underlying concerns. III R. 52.

This court reviews sentences for reasonableness, which has both procedural

and substantive components. Martinez-Barragan, 545 F.3d at 898. “Review for

substantive reasonableness focuses on whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).” United States v. Sample, 901 F.3d 1196, 1199 (10th Cir.

2018) (quotations omitted). Zarion’s challenge is a substantive reasonableness

challenge because he argues that the upward variance was “unreasonable given all of

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the circumstances of the case in light of the factors listed in 18 U.S.C. § 3553(a).”

Aplt. Br. at 10–11.

Our review is for abuse of discretion. Martinez-Barragan, 545 F.3d at 905.

An abuse of discretion occurs if a sentence is “arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Gross, 44 F.4th 1298, 1302 (10th Cir.

2022) (quotations omitted). To be unreasonable, the sentence must “exceed[] the

bounds of permissible choice.” Id. (quotations omitted). In reviewing a sentence for

reasonableness, “we give due deference to the sentencing court’s variance based on

18 U.S.C. § 3553(a)’s factors.” Id. at 1301 (quotations omitted). Indeed, “[t]he

sentencing judge is in a superior position to find facts and judge their import under

§ 3553(a) in the individual case.” Gall v. United States, 552 U.S. 38, 51 (2007)

(quotations omitted). We have declined to find an abuse of discretion where, as here,

the district court “carefully consider[s]” the § 3553(a) factors and conducts “a

detailed, individualized assessment” of how those factors apply in a specific case.

United States v. McCulley, 679 F. App’x 643, 645 (10th Cir. 2017). “We will not

reweigh the factors on appeal[.]” Id. Comparatively, we have found abuse of

discretion where the district court relies “solely on one § 3553(a) factor” in varying

upward and does not “address[] other relevant factors.” United States v. Crosby,

119 F.4th 1239, 1247 (10th Cir. 2024).

Zarion’s sentence exceeds the guideline range by 29 months. Aplt. Br. at 21.

As mentioned, in varying upward, the district court extensively assessed the

§ 3553(a) factors as they apply to this case. III R. 53–57. In doing so, the court

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carefully made individualized assessments of the relevant sentencing factors and

concluded that they supported an upward variance. Id. We do not second-guess the

district court’s assessment of those factors. Rather, we defer to the district court’s

judgment that the factors call for the variance. Gross, 44 F.4th at 1301. We

therefore are not persuaded Zarion’s sentence “exceed[s] the bounds of permissible

choice” in this case. Id. at 1302 (quotations omitted).

Zarion’s arguments to the contrary are unpersuasive. He argues that the

variance was not warranted because several facts relied upon by the district court

were already accounted for in the guideline range. Aplt. Br. at 21. Unfortunately for

Zarion, it is well-established that “district courts have broad discretion to consider

particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), even when those

facts are already accounted for in the advisory guidelines range.” United States v.

Barnes, 890 F.3d 910, 921 (10th Cir. 2018) (quotations omitted).

Second, Zarion argues that the district court erred in assessing the factors

related to promoting respect for the law, deterrence, and protection of the public.

Aplt. Br. at 21, 22. The district court stated that “only a long sentence” would

promote respect for the law. III R. 54–55. Similarly, the court was “not convinced

that a short sentence” would suffice for purposes of deterrence and protecting the

public. Id. at 56. Zarion asserts that these assessments cannot support an upward

variance because a top-of-guideline sentence of 161 months is a “long sentence” and

thus was improperly characterized as “short.” Aplt. Br. at 21–22. But the district

court never said that a 161-month sentence is short. See III R. 54–56. Further, as

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explained, the district court balanced the § 3553(a) factors as they pertain to Zarion’s

case. See id. When such a careful balance is struck, we defer to the district court.

United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008).

We need not assess whether a departure was also warranted because we have

no reason to think that Zarion’s sentence would be any different if we reversed the

departure while affirming the variance. DeRusse, 859 F.3d at 1238. In any event, for

the reasons explained in this panel’s opinion in a companion appeal, United States v.

Barnes, No. 24-3062, we are convinced that the district court was correct in

ultimately concluding that this case falls outside of § 2A2.2’s heartland even though

it incorrectly suggested that § 2A2.2 only applies to assault on federal officers rather

than all aggravated assaults.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge