United States v. Waitman

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 2, 2025
• Docket: 24-6240
• Status: Unpublished

Opinion

Appellate Case: 24-6240 Document: 35-1 Date Filed: 10/02/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 2, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-6240 (D.C. No. 5:23-CR-00498-J-1) BILLY JACK WAITMAN, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, EID, and FEDERICO, Circuit Judges. _________________________________

Billy Waitman assaulted and strangled his dying mother as she lay in

her hospice bed. She died three days later. Waitman was sentenced to 10

years’ imprisonment for assault resulting in serious bodily harm – a

sentence that was roughly four times the advisory sentencing guidelines

*After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 24-6240 Document: 35-1 Date Filed: 10/02/2025 Page: 2

range for his case. On appeal, Waitman challenges this sentence as being

substantively unreasonable. We disagree. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

I

In July 2023, Pam Waitman was nearing the end of a long battle with

emphysema. She was 72 years old and had been in home hospice care for

three years, and she could not breathe without the help of an oxygen

machine. At that time, Pam’s son, the defendant, Billy Waitman

(hereinafter Waitman will refer only to the defendant), lived in her home

and helped care for her.

Waitman is also ill. He has a long history of alcohol abuse and was

diagnosed with liver cirrhosis in 2020. He has a limited life expectancy

without a liver transplant. At one point, Waitman was slated to receive a

liver transplant, but he was removed from the transplant list because he

refused to stop drinking.

Waitman has claimed that he and his mother were close, and that he

acted as her caregiver as they were both experiencing their terminal

illnesses. However, testimony from other members of his family paints a

different picture. Waitman’s brother, Paul Waitman, stated that Waitman

was usually drunk and hardly ever took care of Pam. Waitman was unhappy

living with Pam and repeatedly told Paul that she couldn’t live with him

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anymore. Waitman’s sister, Susan Wyant, stated that he told her at one

point, “[i]f you don’t get her out of here, I’m going to choke her to death.” R.

III at 12.

The night of July 24, a hospice nurse arrived at Pam’s home because

it was reported that she was having trouble breathing. That day, Pam

requested morphine for the first time. In prior conversations with her

family, she had said that if she ever asked for morphine that it meant that

she was close to death. The nurse reported that Waitman was drunk at the

time and appeared angry at his mother. Waitman also told the nurse that

his mother was taking too long to die and that he was tired of taking care

of her. After the nurse left, she called Paul to tell him that Pam was in grave

condition, and Paul said he would go to Pam’s house. The nurse also

scheduled a meeting with her supervisor to try and get Pam removed from

the home because she felt it was an unsafe residence.

Later that night, law enforcement was called to Pam’s home. Paul told

law enforcement that when he arrived at the home, he found Waitman on

top of their mother, choking her. Waitman then lunged at Paul and tried to

hit him, but Paul was able to restrain Waitman until law enforcement

arrived. Pam suffered severe injuries, including having much of the skin on

one of her arms ripped off. Her oxygen machine had also been unplugged.

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Waitman told law enforcement that he was not trying to hurt his

mother. He claimed that she was acting “erratic” because of a bad reaction

to the morphine, and that he was trying to restrain her and calm her down

so that she didn’t injure herself. Id. at 13–14.

Waitman was taken to jail while his mother was taken to the hospital.

She was soon released to a nursing home, where she died on July 27. Family

members and a nurse reported that, before she died, Pam was distressed

and said that Waitman had tried to kill her. An autopsy determined that,

despite Pam’s evident injuries from the assault, she had died of natural

causes from her emphysema.

II

A grand jury returned an indictment charging Waitman with

attempted murder under 18 U.S.C. §§ 1113, 1153 (Count 1) and assault

resulting in serious bodily injury under 18 U.S.C. §§ 113(a)(6), 1153 (Count

2). Waitman entered a guilty plea on Count 2, acknowledging that he

committed an “[a]ssault resulting in a serious bodily injury” punishable by

“imprisonment for not more than ten years[.]” 18 U.S.C. § 113(a)(6).

Waitman’s Presentence Report (PSR) recommended that Waitman be

given a total offense level of 18 and a criminal history category of I. Based

on these recommendations, the PSR calculated an advisory sentencing

guidelines range of 27 to 33 months’ imprisonment. The PSR also calculated

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that, if Waitman had been convicted of both counts as charged, his

guidelines range would have been 78 to 97 months.

The Government moved for an upward variance from the guidelines

range and asked the district court to impose the maximum possible

sentence: ten years’ imprisonment. At Waitman’s sentencing hearing, the

Government stated that Waitman’s animosity towards his mother and his

desire to kill her so that she wouldn’t be a burden to him justified a

variance. The assault had also caused Waitman’s family to go through a

traumatic experience and robbed Pam of the ability to be at peace before

her death. The Government argued that Waitman’s explanation of his

motive – that he was merely trying to restrain his mother – was not credible

given the circumstances of the assault and statements from nurses and

Waitman’s family.

Waitman asked for the court to impose a sentence within the

guidelines range. At sentencing, Waitman’s counsel told the court that,

despite his actions while intoxicated, Waitman cared about his mother, did

not deliberately intend to kill her, and had accepted responsibility for

hurting her. Then, Waitman argued that a guidelines sentence was justified

by his poor health. Waitman’s counsel stated that Waitman was “not likely

to survive a ten-year sentence” and that he could not receive sufficient

medical care, namely a liver transplant, while in prison. R. III at 20–21.

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Before imposing a sentence, the district court stated that it considered

all the sentencing factors outlined in 18 U.S.C. § 3553(a), as well as the

“statements of the parties, the plea agreement, the [PSR], the nature and

circumstances of the offense, and the history and characteristics of the

defendant.” Id. at 23. The district court then addressed Waitman’s “actions

against a helpless, dying, elderly woman” that it found “unconscionable and

warranting a more robust sentence . . . than what is requested or reflected

in the guidelines.” Id. at 25. Further, the district court stated that it did not

“believe the guidelines constitute just punishment nor do they protect the

public nor do they reflect the seriousness of [Waitman’s] offense.” Id. The

district court also acknowledged Waitman’s liver disease but found that

while it “has been afforded meaningful consideration,” it was not

dispositive, particularly because Waitman is ineligible for a transplant due

to his own refusal to stop drinking. Id. For these reasons, the district court

granted the Government’s motion for an upward variance and imposed the

statutory maximum sentence of ten years’ imprisonment.

Although Waitman generally waived his right to appeal his sentence

as part of his plea agreement, he did not waive his right to challenge the

substantive reasonableness of a sentence that is above the guidelines range.

Waitman thus timely appealed.

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III

A

An appeal challenging “substantive reasonableness addresses

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. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (internal quotation

marks omitted). Section 3553(a) requires sentencing courts to consider

seven factors, including “the nature and circumstances of the offense and

the history and characteristics of the defendant” as well as the need for the

sentence to promote the goals of the justice system such as “respect for the

law[,]” “just punishment[,]” “deterrence to criminal conduct[,]” “protect[ing]

the public[,]” and rehabilitation for the defendant. 18 U.S.C. § 3553(a)(1),

(2).

When reviewing a sentence for reasonableness we give “deference to

the district court under the familiar abuse-of-discretion standard.” United

States v. Garcia, 946 F.3d 1191, 1211 (10th Cir. 2020) (citation modified).

To demonstrate an abuse of discretion, the defendant must show that the

sentence was “arbitrary, capricious, whimsical, or manifestly

unreasonable.” Id. (quoting United States v. DeRusse, 859 F.3d 1232, 1236

(10th Cir. 2017)).

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When reviewing a variance from a guidelines sentence, “we ‘consider

the extent of the deviation’ but give ‘due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.’” Huckins, 529 F.3d at 1317 (quoting Gall v. United States, 552

U.S. 38, 51 (2007)). As part of granting deference, we do not ourselves

“examine the weight a district court assigns to various § 3553(a) factors, and

its ultimate assessment of the balance between them.” United States v. Smart,

518 F.3d 800, 808 (10th Cir. 2008). “That is to say, we recognize that in many

cases there will be a range of possible outcomes the facts and law at issue can

fairly support; rather than pick and choose among them ourselves, we will

defer to the district court’s judgment so long as it falls within the realm of these

rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053

(10th Cir. 2007). “We cannot reverse simply because we might have

reasonably arrived at a different sentence.” Huckins, 529 F.3d at 1317.

B

Waitman argues the district court unreasonably weighed the

§ 3553(a) sentencing factors in deciding to impose an above guidelines

sentence. He states that the district court relied entirely on one factor – the

nature and circumstances of his offense – and failed to adequately consider

his mitigating evidence. He offers three mitigating facts that he thinks the

district court should have given greater consideration: (1) his failing health,

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(2) his lack of criminal history, and (3) the district court’s variance exceeded

his guidelines range even had he been convicted of both counts as originally

charged.

We will address each of these arguments in turn, but we conclude that

none of them is compelling enough for us to find Waitman’s sentence

substantively unreasonable. The district court considered each of these

mitigating factors; it just may not have given these factors the weight that

Waitman thinks they deserve. Given the shocking circumstances of

Waitman’s crime, assaulting his elderly mother while she lay in bed under

hospice care, the district court acted within the realm of rational choices by

granting an upward variance and did not abuse its discretion.

First, Waitman argues that “[t]he upward variance is substantively

unreasonable, in part, because of [his] terminal condition.” Op. Br. at 18.

Waitman cites a medical declaration from his doctor stressing his severe

illness and argues that an above guidelines sentence does nothing to protect

the community given his physical condition. But evidence of Waitman’s

illness, including his doctor’s declaration, was included in the PSR and was

considered by the district court. And the district court explicitly addressed

Waitman’s health when imposing a sentence, assuring Waitman that it “has

been afforded meaningful consideration[.]” R. III at 25. The district court

simply decided that his health was “unpersuasive” as a mitigating factor

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given the nature and circumstances of his crime and the fact that Waitman

does not qualify for a liver transplant because of his own failure to stop

drinking. Id. Since we do not “examine the weight” the court gives to such

factors, Smart, 518 F.3d at 808, we will not question the weight the district

court chose to give, or not give, to this evidence. Rather, the record supports

that the district court duly considered Waitman’s medical condition prior to

announcing a sentence.

Next, Waitman argues that the district court “also failed to adequately

consider [his] lack of a significant criminal history, which the advisory

guideline range did adequately include.” Op. Br. at 19. While it is true that the

district court “made no mention of [] Waitman’s minimal criminal history” at

his sentencing hearing, id., that does not mean that it failed to consider his

lack of criminal history. This piece of Waitman’s history was described in the

PSR, which the district court considered. Likewise, Waitman’s lack of

significant criminal history is a part of his “history and characteristics” under

§ 3553(a)(1). It was also incorporated into his guidelines range, which the

district court considered before deciding on an upward variance. Again,

Waitman’s challenge is really to the weight the district court gave this fact, but

this is not a decision that we will second-guess given the nature and

circumstances of this case and the district court’s explanation for its sentence.

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Finally, Waitman argues that his 120-month sentence was unreasonable

because it exceeded even the guidelines range of 78 to 97 months Waitman

would have received if he had been convicted of attempted murder as well as

assault. He takes issue with the district court not explaining “how this

guideline range would have been inadequate to comply with the goals of

sentencing.” Op. Br. at 20.

But Waitman cites no authority to show that the district court must

consider, much less explain, the meaning or relevance of alternative guidelines

ranges based on a charged offense that was dismissed. The district court’s

consideration of the sentencing factors is not required to perfectly track the

guidelines. See United States v. Gross, 44 F.4th 1298, 1304 (10th Cir. 2022)

(“[D]istrict courts have broad discretion to consider particular facts . . . even

when those facts are already accounted for in the advisory guidelines range.”).

As it was required to, the district court considered Waitman’s actual guidelines

range of 27 to 33 months and determined that a sentence within that range

was not sufficient.

IV

We acknowledge that the district court’s sentence was a significant

upward variance. Such variances require the district court to offer a greater

justification for its sentencing decision. See United States v. Lente, 759 F.3d

1149, 1158 (10th Cir. 2014) (“A ‘major’ variance should have ‘a more

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significant justification than a minor one.’” (quoting Gall, 552 U.S. at 50)).

The district court followed this principle by adequately explaining its

justification for an upward variance under the § 3553(a) factors.

However, we cannot conclude that it was unreasonable for the district

court to impose a significant upward variance when the district court

explained how it weighed the nature and circumstances of the offense

against the mitigating evidence and arguments presented by Waitman. See

United States v. McCrary, 43 F.4th 1239, 1241–42 (10th Cir. 2022)

(affirming a “forty-eight-month sentence [that] was four times higher than

the high end of the advisory guideline range” because the district court

concluded that the defendant’s “post-offense rehabilitation did not outweigh

the fact that the fentanyl [the defendant] distributed resulted in another’s

death”). Given the circumstances present in this case, the district court did

not abuse its discretion.

AFFIRMED.

Entered for the Court

Richard E.N. Federico Circuit Judge