United States v. Murphy

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 21, 2026
• Docket: 24-7096
• Status: Unpublished

Opinion

Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page:FILED 1 United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS January 21, 2026

FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-7096 (D.C. No. 6:20-CR-00078-RAW-1) PATRICK DWAYNE MURPHY, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before PHILLIPS, KELLY, and MORITZ, Circuit Judges. _________________________________

After a federal jury convicted Patrick Murphy of second-degree murder, the

district court departed and varied upward to impose a life sentence. Murphy appeals,

arguing that his sentence is unreasonable. We disagree and affirm because the district

court adequately explained its reasoning and did not abuse its discretion in varying

upward based on the gruesome circumstances of the offense, Murphy’s lack of

remorse, and the need for the sentence to reflect the seriousness of and provide just

punishment for the offense.

This order and judgment is not binding precedent, except under the doctrines *

of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 2

Background

In August 1999, Murphy and two other men killed his girlfriend’s ex-

boyfriend, George Jacobs, by dragging a drunk and unconscious Jacobs out of a car,

beating him, slicing his throat and body with a knife, cutting off his genitalia and

putting them in his mouth, and leaving him to bleed out in a ditch. United States v.

Murphy, 100 F.4th 1184, 1188–90 (10th Cir. 2024). Murphy then burned his bloody

clothes and bragged about his actions to his girlfriend. Id. at 1189–90.

An Oklahoma jury convicted Murphy of first-degree murder and sentenced

him to death. Id. at 1191. But we vacated his conviction and sentence in federal

habeas proceedings, holding that the state lacked jurisdiction to prosecute him

because he is an Indian and his offense took place in Indian country. See Murphy v.

Royal, 875 F.3d 896, 966 (10th Cir. 2017), aff’d sub nom., Sharp v. Murphy, 591

U.S. 977 (2020).

In September 2020, a federal grand jury indicted Murphy on charges of murder

and kidnapping committed by an Indian in Indian country. Murphy, 100 F.4th at

1191–92. About a year later, a jury convicted Murphy on three counts: second-degree

murder, murder while perpetrating a kidnapping, and kidnapping resulting in death.

Id. at 1192. The district court imposed three concurrent life sentences. Id. Murphy

appealed, and we held that because “the statutory requirement of ‘holding’ in [18

U.S.C.] § 1201 contains a temporal limitation,” the evidence on the two kidnapping

counts was insufficient. Id. at 1196, 1204 (cleaned up). We therefore reversed those

two convictions. Id. at 1204. And because only the kidnapping counts carried

2 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 3

mandatory life sentences (the life sentence for second-degree murder was

discretionary), we vacated Murphy’s sentence and remanded for resentencing. Id. at

1213.

On remand, Murphy’s sentencing range for his remaining second-degree

murder conviction under the United States Sentencing Guidelines (U.S.S.G. or the

Guidelines) was 168 to 210 months, based on a total offense level of 35 and a

criminal-history category of I. The government moved for an upward departure under

both U.S.S.G. § 5K2.0(a)(1)(A)’s then-operative provision for aggravating

circumstances and U.S.S.G. § 5K2.8’s then-operative provision for extreme conduct,

as well as for an upward variance under the sentencing factors in 18 U.S.C.

§ 3553(a). 1 See United States v. Barnes, 141 F.4th 1156, 1160 (10th Cir. 2025)

(explaining that “[d]epartures are ‘non-Guidelines sentences imposed under the

framework set out in the Guidelines’” and that variances, by contrast, “are ‘non-

Guidelines sentences arising from a district court’s case-specific analysis of the

sentencing factors in § 3553(a)” (cleaned up) (quoting United States v. Vazquez-

Garcia, 130 F.4th 891, 899 (10th Cir. 2025))). In support, the government cited the

1 The Sentencing Commission has since deleted the departure provisions from the Guidelines, explaining (1) that it made this change to “acknowledge the growing shift away from the use of departures . . . in the wake of [United States v. Booker, 543 U.S. 220 (2005)],” and (2) that it intended this change “to be outcome neutral[ because] judges who would have relied upon facts previously identified as a basis for a departure would continue to have the authority to rely upon such facts to impose a sentence outside of the applicable [G]uideline[s] range as a variance.” U.S.S.G. ch. 1, pt. A, introductory cmt (Nov. 1, 2025). However, we apply the Guidelines that were in effect at the time of sentencing. See U.S.S.G. § 1B1.11(a); United States v. Platero, 996 F.3d 1060, 1060 n.1 (10th Cir. 2021). 3 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 4

circumstances of the murder, that Murphy bragged about it to his girlfriend, and his

continued lack of remorse. As examples of the latter point, the government noted that

Murphy at one point asked a codefendant to take the blame for him and that Murphy

testified at his federal trial that he did not participate in murdering Jacobs.

The district court granted the government’s motion “in full,” “find[ing] that

[Murphy’s] conduct was not only unusually heinous and cruel, but emotionally

detrimental to his girlfriend. Furthermore, [Murphy] not only minimized any

wrongdoing, but continues to not accept responsibility for his actions.” R. vol. 3, 17.

It stated that “the circumstances in this case warrant both a departure, pursuant to . . .

[§]§ 5K2.0(a)(1)(A) and 5K2.8, and a variance, based on the sentencing factors cited

in . . . § 3553(a).” Id. (emphasis added); see also R. vol. 2, 94–95 (statement of

reasons including both rationales). The district court thus departed upward by eight

levels to an offense level of 43 (which led to a Guidelines life sentence) and varied

upward under the § 3553(a) factors to impose a life sentence. See Barnes, 141 F.4th

at 1162–63 (explaining that district court is free to impose both departure and

variance).

Murphy appeals.

Analysis

In this appeal of his sentence, Murphy challenges both the district court’s

departure and variance. But as the government explains in its response—and as

Murphy does not refute in his reply brief—we can affirm if either is valid. See id. at

1163 (explaining that where upward variance was not abuse of discretion, “we need

4 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 5

not consider whether the upward departure was separately warranted”). We begin—

and ultimately end—with the variance.

We review all criminal sentences for reasonableness “under an abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). This review

typically has two steps: “ensur[ing] that the district court committed no significant

procedural error” and “then consider[ing] the substantive reasonableness of the

sentence imposed.” Id.

Procedurally, Murphy argues that the district court erred in failing to explain

its reasons for varying upward. The government responds that this argument is

subject to plain-error review because Murphy failed to object below to the adequacy

of the district court’s explanation. See United States v. Lucero, 747 F.3d 1242, 1246

(10th Cir. 2014) (explaining that we review unpreserved procedural challenges for

plain error). In a weak attempt to dispute this, Murphy suggests he had no

opportunity to object because “the district court imposed an upward

departure/variance after argument had been concluded.” Rep. Br. 3. But after

granting the government’s motion to vary and depart upward, the district court asked

defense counsel if he had “anything further,” and defense counsel said no. R. vol. 3,

19. The district court asked again after formally announcing the sentence, with the

same result. At either point, “an objection that the sentencing court had not

adequately explained the sentence . . . would have enabled the court . . . to correct

[any] failure.” United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006).

Thus, because he did not offer one below, Murphy’s procedural failure-to-explain

5 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 6

argument is subject to plain-error review on appeal. See id.

Plain error requires an appellant to show (1) an error that (2) is plain,

(3) affects substantial rights, and (4) substantially impacts the fairness of judicial

proceedings. See Lucero, 747 F.3d at 1246. But Murphy failed to address plain error

in his briefing, even in his reply brief, after the government raised the issue. He has

therefore waived any plain-error argument. See United States v. Veneno, 107 F.4th

1103, 1114 (10th Cir. 2024).

Even if Murphy had argued for plain error, his argument fails at the first

prong—the district court did not err. In explaining a sentence, “[a] district court must

‘set forth enough to satisfy the appellate court that it has considered the parties’

arguments and has a reasoned basis for exercising its own legal decision[-]making

authority.” United States v. Lente, 759 F.3d 1149, 1155 (10th Cir. 2014) (cleaned up)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)); see also Gall, 552 U.S. at

51 (noting that district court must “includ[e] an explanation for any deviation from

the Guidelines range”). In other words, a district court must provide enough

explanation to enable appellate review—“‘[a] limited, brief, or inconsistent

explanation’ can hinder our review of a sentence’s substantive reasonableness.”

United States v. Crosby, 119 F.4th 1239, 1248 (10th Cir. 2024) (quoting United

States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019)). Here, in explaining its

sentencing decision, the district court stated that it was varying upward because of

the gruesome and heinous circumstances of the offense and Murphy’s initial and

continued lack of remorse. This is adequate to permit appellate review and to explain

6 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 7

the reasons for varying from the Guidelines range, so the district court did not

procedurally err. 2

Turning next to substantive reasonableness, Murphy’s arguments fare no

better. Substantive reasonableness asks “whether the length of the sentence is

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

. . . § 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir.

2008) (quoting United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007)). “A

sentencing decision is substantively unreasonable if it ‘exceeds the bounds of

permissible choice, given the facts and the applicable law.’” United States v. Chavez,

723 F.3d 1226, 1233 (10th Cir. 2013) (cleaned up) (quoting United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)).

Murphy initially suggests that his sentence is substantively unreasonable

because it is the same sentence he would have received had the jury convicted him of

premediated first-degree murder. But the district court did not base its sentencing

decision on premeditation; indeed, it never used that word. Instead, it focused on the

particularly gruesome and cruel circumstances of Murphy’s offense: he killed an

2 Indeed, all Murphy’s supporting caselaw on his failure-to-explain argument involved district courts failing to explain the degree of a departure. See, e.g., United States v. Kelly, 1 F.3d 1137, 1138–39 (10th Cir. 1993) (explaining that “[a]fter articulating its reasons for upward departure, . . . a ‘district court must specifically articulate reasons for the degree of departure’” (emphasis added) (quoting United States v. Flinn, 987 F.2d 1497, 1502 (10th Cir. 1993))). This is a rule particular to departure sentences. As noted above, a district court must simply provide “an ordinary explanation of judicial reasons” when imposing a variance. Rita, 551 U.S. at 357; see also Gall, 552 U.S. at 51. 7 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 8

unconscious man by pulling him from a vehicle, beating him, slitting his throat,

removing his genitalia, and leaving him to bleed out in a ditch. Given that the

circumstances and seriousness of the offense are specifically listed sentencing

factors, this was not an abuse of discretion. See § 3553(a)(1) (directing sentencing

court to consider “the nature and circumstances of the offense”); § 3553(a)(2)(A)

(directing sentencing court to consider “the need for the sentence imposed . . . to

reflect the seriousness of the offense . . . and to provide just punishment for the

offense”).

Next, Murphy argues that by focusing on his lack of remorse, the district court

improperly penalized him for refusing to accept responsibility, for going to trial, and

for testifying in his own defense. Not so. A district court may consider a defendant’s

characteristics at sentence, and Murphy’s lack of remorse is one such characteristic.

See § 3553(a)(1). And at no point did the district court indicate it was punishing

Murphy for going to trial or testifying in his own defense. As a final matter,

Murphy’s attempt to distinguish his egregious conduct from other, differently

egregious murders does not convince us that the district court abused its discretion in

this case. Cf., e.g., Kelly, 1 F.3d at 1138–39. We accordingly conclude that the

district court did not “exceed[] the bounds of permissible choice” in varying upward

to sentence Murphy to life in prison. Chavez, 723 F.3d at 1233 (quoting McComb,

519 F.3d at 1053). We thus affirm his sentence. 3

3 The result would be the same if we were to separately consider the validity of the departure. See United States v. Robertson, 568 F.3d 1203, 1211 (10th Cir. 2009) 8 Appellate Case: 24-7096 Document: 39-1 Date Filed: 01/21/2026 Page: 9

Conclusion

Because the district court did not abuse its discretion in imposing an upward

variance, we affirm Murphy’s life sentence.

Entered for the Court

Nancy L. Moritz Circuit Judge

(setting out four-part test for reviewing departure sentences). That’s because even assuming that the district court plainly erred by failing to explain the reasons for the degree of departure, see Kelly, 1 F.3d at 1144; United States v. Begaye, 635 F.3d 456, 471 (10th Cir. 2011), Murphy can’t establish that this error affected his substantial rights, see Lucero, 747 F.3d at 1246. Not only has he waived any attempt to do so by failing to brief this aspect of plain error (even in reply), see Veneno, 107 F.4th at 1114, but our affirmance of the variance means that he can’t do so, cf. Barnes, 141 F.4th at 1163 (“Even if some of the district court’s statements regarding the departure were erroneous, such an 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.’” (cleaned up) (quoting United States v. DeRusse, 859 F.3d 1232, 1238 (10th Cir. 2017))). 9